text:
    Harriet Burke, as Administratrix of the Estate of Michael Burke, Deceased, Appellant, v State of New York, Respondent.
    (Claim No. 59180.)
    Argued January 4, 1979;
    decided January 16, 1979
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


source: Caselaw Access Project

license: Public Domain

text:
    New York Public Interest Research Group, Inc., et al., Appellants, v Arthur Levitt, as Comptroller of the State of New York, et al., Respondents.
    Argued January 8, 1979;
    decided January 16, 1979
   Appeal dismissed, without costs, upon the ground that no constitutional question is directly involved (CPLR 5601, subd [b], par 1).


text:
    Joseph J. Conrad, Appellant, v Florence E. Conrad, Respondent.
    Submitted January 2,1979;
    decided January 16,1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the modification at the Appellate Division was not in a respect within the power of the Court of Appeals to review (CPLR 5601, subd [a], par [iii]).


text:
    Inland Credit Corporation, Respondent, v Eugene Weiss, Appellant.
    Decided January 16, 1979
   Appeal from the order of the Appellate Division, dated June 20, 1978, dismissed as academic, without costs, by the Court of Appeals sua sponte.


text:
    International Mining Corporation et al., Appellants, v Aerovias Nacionales De Columbia S. A. et al., Respondents.
    Submitted January 8,1979;
    decided January 16, 1979
   Motion for clarification of costs denied, with $20 costs to plaintiffs-appellants. (8 Weinstein-Korn-Miller, NY Civ Prac, par 8107.07.) [See 45 NY2d 915.]


text:
    Drew Chemical Corporation, Appellant, v Fidelity and Casualty Company of New York, Respondent.
    Argued January 2, 1979;
    decided February 6, 1979

      APPEARANCES OF COUNSEL

      Samuel N. Greenspoon for appellant.

      John M. Cunneen for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated by the courts below (96 Mise 2d 503, affd 60 AD2d 552).

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


text:
    In the Matter of Thomas O’Garro, Appellant, v New York State Department of Mental Hygiene et al., Respondents.
    Argued January 3, 1979;
    decided February 6, 1979

      APPEARANCES OF COUNSEL

      Alvin C. Morris for appellant.

      Robert Abrams, Attorney-General (Harold Tompkins and Samuel A. Hirshowitz of counsel), for respondents.
   OPINION OF THE COURT

Order reversed, with costs, for the reasons stated in the dissenting memorandum by Presiding Justice Francis T. Murphy, Jr., at the Appellate Division (60 AD2d 546-547), and the matter converted to a plenary action and remitted to Supreme Court, Bronx County, for further proceedings (CPLR 103, subd [c]).

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


text:
    Amigo Foods Corp., Appellant, v Marine Midland Bank-New York et al., Defendants, E. H. Parent, Inc., et al., Appellants, and Aroostook Trust Company, Respondent.
    Argued January 4, 1979;
    decided February 6, 1979

      APPEARANCES OF COUNSEL

      Richard M. Zaroff and Burton I. Manis for plaintiff-appellant.

      Martin I. Kaminsky for defendants-appellants.

      Gerard A. Dupuis and Christopher G. Fitzpatrick for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate, Division (61 AD2d 896).

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


text:
    Contracting Plumbers’ Cooperative Restoration Corporation, Appellant, v Hartford Accident and Indemnity Company, Respondent.
    Argued January 2, 1979;
    decided February 6, 1979

      APPEARANCES OF COUNSEL

      Joel T. Camche and Robert N. Cooperman for appellant.

      William F. Larkin for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (59 AD2d 921), noting that it is conceded that Interboro never performed any paving operations at the situs of the accidents.

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


text:
    Depot Construction Corporation, Appellant, v City of New York, Respondent, et al., Defendants. Renel Construction, Inc., Appellant, v Brooklyn Cooperative Meat Distribution Center, Inc., Defendant, and City of New York, Respondent.
    Argued January 2, 1979;
    decided February 6, 1979

      APPEARANCES OF COUNSEL

      Franklin E. Tretter for Depot Construction Corporation, appellant.

      Jerrold Morgulas for Renel Construction, Inc., appellant.

      Allen G. Schwartz, Corporation Counsel (Leonard Olarsch, L. Kevin Sheridan and Judah Dick of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should bé affirmed, with costs, on the opinion of Mr. Justice Samuel J. Silver-man in that court.

We add only two comments. First, as recited in section 100-a of the General Municipal Law, the provisions of sections 101 and 103 of that law (prescribing practice with reference to the expenditure of municipal funds for public projects) are designed "to assure the prudent and economical use of public moneys for the benefit of all the inhabitants of the state and to facilitate the acquisition of facilities and commodities of maximum quality at the lowest possible cost”. They do not undertake to define the rights and liabilities between the municipality and other participants in the public project. They are for the protection of taxpayers, not the benefit of contractors.

Second, even if it be assumed that the complaint and supporting documents are sufficient to sustain appellants’ contention that the co-operatives were agents of the City of New York in the development of these meat distribution centers, we agree with the Appellate Division that in each of these cases the contract between the co-operative and the contractor imposed liability only on the co-operative.

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

In each case: Order affirmed, with costs in a memorandum.


author: Per Curiam.

text:
    General Accident Insurance Group, Respondent, v Celia Cirucci et al., Respondents, and Aetna Life & Casualty Company, Appellant.
    Submitted January 2, 1979;
    decided February 6, 1979

      APPEARANCES OF COUNSEL

      Steven Di Joseph, J. Robert Morris and Thomas R. Newman for appellant.

      Jeffrey Silberfeld for General Accident Insurance Group, respondent.
   OPINION OF THE COURT

Per Curiam.

On May 20, 1969 respondents, Celia Cirucci and Katherine Cerchione, were injured as a result of an automobile accident with a vehicle operated by Carlos Rodriguez. Respondents served a demand for arbitration on their insurance carrier, General Accident Insurance Group, under the "uninsured motorist” indorsement of their policy. They also commenced a civil action against Rodriguez.

Aetna, insurance carrier of Rodriguez, was first notified of the accident on November 16, 1971 when respondents mailed it a copy of the summons and complaint from the Rodriguez action. After several unsuccessful attempts to locate Rodriguez, Aetna mailed a disclaimer letter to respondents on March 28, 1972 which stated: "We have disclaimed liability by reason of the facts of insured’s failure to report this accident to us and failed to cooperate since we were notified of the accident by you.”

General Accident in a special proceeding sought to stay arbitration of the "uninsured motorist” claim against it on the ground that recovery could be sought from Aetna under the policy issued to Rodriguez. The issue is whether Aetna’s disclaimer was effective.

We agree with the Appellate Division that lack of cooperation of the insured, as a ground for disclaimer, was not supported by legally sufficient evidence, since no showing was made that the insured willfully obstructed the insurance company’s investigation (see Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168). Indeed appellant does not now press non-co-operation as a basis for reversal.

The only other ground stated in the insurance company’s notice of disclaimer, the "insured’s failure to report this accident to us”, was likewise not effective against the third-party claimants. As noted by the Appellate Division an injured third party may seek recovery from an insured’s carrier despite the failure of the insured to provide timely notice of the accident (Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, affd 4 NY2d 1028). Although, under the facts of this case a disclaimer might have been premised on the late notice furnished by the third parties themselves to the insurer, since this ground was not raised in the letter of disclaimer, it may not be asserted now.

Both statute and public policy require that motorists be insured against the risks of automobile travel (Vehicle and Traffic Law, §310, subd [2]; Rosado v Eveready Ins. Co., 34 NY2d 43). Although an insurer may disclaim coverage for a valid reason (Insurance Law, § 167, subd 8) the notice of disclaimer must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated. Absent such specific notice, a claimant might have difficulty assessing whether the insurer will be able to disclaim successfully. This uncertainty could prejudice the claimant’s ability to ultimately obtain recovery. In addition, the insurer’s responsibility to furnish notice of the specific ground on which the disclaimer is based is not unduly burdensome, the insurer being highly experienced and sophisticated in such matters.

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

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

Order affirmed.


text:
    In the Matter of C. De Masco Scrap Iron & Metal Corp., Respondent, v Herbert Zirk, as Chief Building Inspector of the Town of Babylon, et al., Appellants. In the Matter of Raymond Allmendinger et al., Constituting the Town Board of the Town of Babylon, Appellants, v Harold Ziegner et al., Constituting the Zoning Board of Appeals of the Town of Babylon, Respondents, and C. De Masco Scrap Iron & Metal Corp., Intervenor-Respondent.
    Submitted January 3,1979;
    decided February 6, 1979

      APPEARANCES OF COUNSEL

      Joseph F. Klein, Town Attorney (Raymond F. Wolfram of counsel), for appellants.

      Sidney N. Gitelman for Harold Ziegner and others, respondents.

      Edgar Hills for C. De Masco Scrap Iron & Metal Corp., respondent in the first above-entitled proceeding, and intervenor-respondent in the second above-entitled proceeding.
   OPINION OF THE COURT

In Matter of De Masco Scrap Iron & Metal Corp. v Zirk: Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice Joseph F. Hawkins at the Appellate Division (62 AD2d 92).

In Matter of Allmendinger v Ziegner: Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (62 AD2d 1053).

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


text:
    Sherry Finder, Appellant, v Robert Finder, Respondent.
    Submitted January 22, 1979;
    decided February 6, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, 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]).


text:
    The People of the State of New York, Respondent, v Sidney Lieberman, Appellant, et al., Defendant.
    Submitted January 8, 1979;
    decided February 6, 1979
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of the Claim of Helaine Lieber, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Submitted January 4, 1979;
    decided February 8, 1979

      APPEARANCES OF COUNSEL

      Joel J. Ziegler for appellant.

      Robert Abrams, Attorney-General (Samuel A. Hirshowitz, Murray Sylvester and Rochelle M. Baron of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

There is substantial evidence in the record to support the determination of the Unemployment Insurance Appeal Board that claimant voluntarily left her employment without good cause.

Although claimant contends that she was denied a fair hearing by the referee’s refusal to consider a physician’s report of an injury which she alleges was inflicted by her employer, we conclude that exclusion of such evidence, helpful as it might have been to corroborate claimant’s allegation of a physical assault upon her person, did not constitute a denial of due process. The record indicates that claimant was afforded a sufficient opportunity to present proof in support of her claim, and any probative value which the physician’s report may have had seems highly speculative in light of the claimant’s voluntary request to return to work only one hour after leaving her employment.

As to claimant’s assertion that the referee gave undue weight to irrelevant considerations in reaching his findings, we note that the Unemployment Insurance Appeal Board and the referees "shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure but may conduct the hearings and appeals in such manner as to ascertain the substantial rights of the parties.” (Labor Law, § 622, subd 2.)

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

Order affirmed.


text:
    Gordon I. Stoddard, Appellant, v Town of Marilla et al., Respondents.
    Argued January 3, 1979;
    decided February 8, 1979

      APPEARANCES OF COUNSEL

      Evan E. James, Raymond F. Roll and Frank S. Kedzielawa for appellant.

      George R. Blair and Paul W. Mathias for respondent.
   OPINION OF THE COURT

Order modified, with costs to defendants, by remitting the case to the Supreme Court, Erie County, for the entry of a declaratory judgment in favor of defendants in accordance with the memorandum at the Appellate Division (60 AD2d 771; see, also, Town of Pompey v Parker, 44 NY2d 805; cf. Lanza v Wagner, 11 NY2d 317, 334) and, as so modified, order affirmed.

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


text:
    In the Matter of the Claim of Nicholas Granich et al., Respondents. Marquette Cement Co., Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Argued January 4, 1979;
    decided February 8, 1979

      APPEARANCES OF COUNSEL

      George W. Moehlenhof of the Illinois Bar, admitted on motion, pro hac vice, for appellant.

      John Filippone, Jr., for claimant-respondent.

      Robert Abrams, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz, Murray Sylvester and Frederick M. Paola of counsel), for Philip Ross, as Industrial Commissioner, respondent.
   OPINION OF THE COURT

Memorandum.

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

There is substantial evidence in the record to sustain the determination of the Unemployment Insurance Appeal Board, and its determination is not erroneous as a matter of law. The proof submitted supports the conclusion that the weeks during the company layoff in the last months of 1975 unilaterally and arbitrarily allotted by the employer as vacation were not "time designated for vacation purposes in accordance with the collective bargaining agreement or the employment contract or by the employer and the claimant, his union, or his representative” within the contemplation of the first sentence of paragraph (b) of subdivision 3 of section 591 of the Labor Law. Indeed, section 7 of article 11 of the basic collective bargaining agreement expressly provides: "In exercising its right to allot vacation periods, the Company will not require any employee who is on layoff to take his vacation during periods of plant shutdown or curtailment of operations.”

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v John Hall, Also Known as Leroy Thomas, Appellant.
    Argued January 5, 1979;
    decided February 8, 1979
    APPEARANCES OF COUNSEL

      William E. Hellerstein for appellant.

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

Per Curiam.

Two issues are tendered for our review. On the eve of the scheduled trial, at a pretrial identification hearing, assigned counsel for appellant, Louis Alperin, Esq., discovered that he had previously represented an important identification witness to be called by the prosecution, one James Gonzalez, and had been intimately involved with his family and his personal history and background, including certain things which might prove embarrassing to the witness. After his becoming aware of the identity of defense counsel, Gonzalez backed away from identification of defendant. Mr. Alperin promptly informed the court and the prosecution of his predicament. The prosecution thereupon moved the court to disqualify counsel and to assign a replacement. With evident reluctance to "abandon” his client, Mr. Alperin joined in the motion. After consideration and over the strenuous objections of appellant, who found Mr. Alperin to be "a very good lawyer”, the court granted the motion, relieved Mr. Alperin and directed the assignment of new counsel. Appellant argues that it was error for the court to have excused his assigned counsel. No issue is now tendered, however, with respect to the propriety of rulings of the court after Mr. Alperin was relieved or of the performance of substituted counsel.

On reviewing the record we agree with the Appellate Division that it was not error for the court to have excused defense counsel in the circumstances disclosed, nor was appellant thereby deprived of any constitutional right. This is not an instance in which the court relied on a waiver of a potential conflict of interest by the defendant or allowed the defendant to continue with his counsel (e.g., People v Gomberg, 38 NY2d 307; see Ann., 27 ALR3d 1431). Precisely the opposite occurred; the court rejected appellant’s desire to retain his assigned counsel. Cases involving a defendant’s right to proceed pro se do not fit, and cases in which counsel did continue are inapposite. It is the gravamen of appellant’s argument that a defendant has the constitutional right, once an attorney has been retained or assigned, to determine whether such attorney may continue to represent him. This is too categorical a description of a defendant’s right. We agree that a court should be hesitant to interfere in an established attorney-client relationship, even where, as here, the attorney joins in the application to be excused. Clearly the lawyer cannot terminate the relationship, ex parte. Nor, on the other hand, may the client preclude termination (cf. People v Brabson, 9 NY2d 173, cert den 366 US 930 [assigned counsel]). We find no error, however, in the determination made by the court to disqualify Mr. Alperin in this instance in circumstances in which it appeared very likely that his continuance in the case would work unfair prejudice either to the prosecution or to defendant. Indeed, the denial of Mr. Alperin’s request to be relieved might have been a violation of defendant’s constitutional rights (e.g., Holloway v Arkansas, 435 US 475). (See Ann., 27 ALR3d 1431; compare United States v Armedo-Sarmiento, 524 F2d 591 [error to disqualify retained counsel on motion of prosecution in which defense counsel did not join].)

On the second issue, defendant argues that the case must at least be remitted for resentencing because the sentencing Judge made express reference to another crime for which defendant had been indicted but not convicted. Our reading of the record satisfies us that the sentences imposed for the crimes of which defendant was convicted were in no way affected by the court’s awareness of the other indictment and did not represent an imposition of additional punishment for the other crime charged. On the contrary, it appears that the court’s reference to the fact that the other indictment was to be dismissed was made for defendant’s information, and thus for his benefit. The failure of defendant and his counsel to voice any protest at the time confirms this interpretation.

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

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

Order affirmed.

       It is of interest to note that on defendant’s subsequent trial, Gonzalez positively identified defendant and persisted in his identification. He explained his inability to identify defendant at the pretrial hearing as a lie, attributable to Mr. Alperin’s presence in the courtroom as defendant’s counsel. "The reason I didn’t say the exact truth that day, I know Mr. Alperin certain years, and one time he, he took care of a case for me, and it was my parents and things, and I just, I felt he is bringing up my past, and I didn’t want it to come up. I, I just didn’t want it. * * * I didn’t know what to say, and I was mixed up. I went downstairs, and I called up, and I called the District Attorney’s office, and I came back up, and I apologized”.


text:
    In the Matter of the Claim of Rudy Watz, Respondent. Equitable Life Assurance Society of the United States, Respondent. Philip Ross, as Industrial Commissioner, Appellant.
    Argued January 10, 1979;
    decided February 8, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester of counsel), for appellant.

      MacNeil Mitchell, Patrick J. Caulñeld and Charles W. Muller for employer respondent.
    No appearance for claimant-respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree that there is not substantial evidence in . the record to sustain the determination of the appeal board that the relationship between claimant and Equitable Life Assurance Society was that of employee-employer during the period January 1, 1974 through December 1, 1974.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Ronald Newton, Also Known as Ronald Johnson, Appellant.
    Argued January 5, 1979;
    decided February 8, 1979

      APPEARANCES OF COUNSEL

      Oren Root, Jr., and William E. Hellerstein for appellant.

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

Memorandum.

The order should be affirmed for the reasons stated in the Appellate Division memorandum.

We would add that after the court properly instructed the jury that each of the substantive elements of the crimes charged must be proven beyond a reasonable doubt (People v Newman, 46 NY2d 126) and that the jury must pass on the issue of identification, defense counsel requested that the court charge: "Identification of the defendant as the perpetrator is one of the elements which must be proven beyond a reasonable doubt.” Although the court rejected this request, it had previously instructed the jury that "before you can convict a defendant you must be convinced of his guilt beyond a reasonable doubt.” This charge adequately apprised the jury that the reasonable doubt standard attached to the element of identification.

Finally we note that the trial court did not abuse its discretion as a matter of law in denying defendant’s motion to bar cross-examination regarding his prior convictions (People v Sandoval, 34 NY2d 371).

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

Order affirmed in a memorandum.


text:
    Orange and Rockland Utilities, Inc., Appellant, v Howard Oil Company, Inc., Respondent.
    Argued January 9, 1979;
    decided February 8, 1979

      APPEARANCES OF COUNSEL

      Robert K. Ruskin, Harry E. Youtt and Jeffrey L. Liddle for appellant.

      Milton S. Gould, Ronald H Alenstein, Geoffry R. Handler and Thomas J. Johnson for respondent.
   OPINION OF THE COURT

Memorandum.

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

The appeal should not be dismissed for nonfinality as contended by the defendant. The first and second causes of action which were dismissed are not inextricably interrelated with the third cause of action which is still pending. Essentially the various causes overlap only to the extent that they involve the sale of certain oil between the same parties. However, the first and second causes relate only to the original contract, involve claims of fraudulent misrepresentation of the defendant’s inability to perform that contract and breach of that agreement, and seek damages representing the difference between the original contract price and the amount actually paid. The third cause, on the other hand, relates only to the subsequent or renegotiated contract, alleges that the defendant breached that agreement by charging in excess of the agreed price and seeks damages representing the difference between the increased price agreed upon in that contract and the price actually paid. Thus in most material respects— namely, the alleged wrongful conduct, the contracts involved and the measure of damages — the finally determined causes now before us both present different legal issues and arise out of transactions different from the third cause and should be deemed impliedly severed (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; see, also, Ratka v St. Francis Hosp., 44 NY2d 604, 608-610).

With respect to the merits of the appeal the affidavits submitted by the plaintiff clearly indicate that the plaintiff was aware of the defendant’s ability to deliver oil in accordance with the original contract and that it was only the price which had been affected by the embargo. Therefore the Appellate Division was correct in granting summary judgment to the defendant on the first and second causes of action, alleging, as noted, fraudulent misrepresentation by the defendant of its inability to perform the original contract and consequent breach of that agreement.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Ali Rahman, Appellant.
    Argued January 5, 1979;
    decided February 8, 1979

      APPEARANCES OF COUNSEL

      Allen R. Mass for appellant.

      Robert M. Morgenthau, District Attorney (David H. Steiner and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The record does not demonstrate that the trial court abused its discretion when it ruled that the prosecution would be permitted to impeach the credibility of the defendant, if he took the stand, by confronting him with two of his prior narcotics convictions. Indeed, there is nothing to indicate that the court did not in fact actually balance the probative worth of the impeaching material against the risk that it might be taken as an indication of a propensity to commit the crimes charged and the fear that its admission might unfairly deter him from testifying at trial (see People v Mayrant, 43 NY2d 236-240; People v Sandoval, 34 NY2d 371, 378).

Nor does it appear that the court precluded counsel from bringing to its attention any considerations that appropriately should have entered into its determination or that it refused to weigh those that were urged upon it. In particular, there is no reason to conclude that the Trial Judge misapprehended or overlooked her discretionary obligation or refused to apply it in ruling on defendant’s motion (cf. People v Davis, 44 NY2d 269; People v Mayrant, supra, at p 240; People v Caviness, 38 NY2d 227, 233). Here, to the contrary, the court ruled out the use of another of defendant’s drug convictions and the underlying facts of one of those admitted.

Finally, as to the other errors assigned by the defendant, suffice it to say that, under the circumstances of this case, we find they were no more than permissible exercises of the Trial Judge’s discretion.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York ex rel. Lee Higgs, Appellant, v Superintendent, Arthur Kill Correctional Facility, et al., Respondents.
    Argued January 9, 1979;
    decided February 8, 1979
   Appeal dismissed, without costs, on the ground that 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 (People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    Hartford Insurance Company, Respondent, v County of Nassau, Appellant, et al., Defendants.
    Submitted January 29, 1979;
    decided February 8, 1979
   Motion to dismiss the appeal herein denied.


text:
    Myron Mayer et al., Respondents-Appellants, v City Rent Agency et al., Appellants-Respondents, et al., Defendant, and Coalition Against Rent Increase Pass-Alongs (CARIP) et al., Intervenors-Appellants, and Victor Marrero, as Commissioner of the State Division of Housing and Community Renewal, Respondent.
    Submitted January 29,1979;
    decided February 8,1979
   Motion for clarification of the remittitur denied. Class action status was never sought or obtained under CPLR 902. [See 46 NY2d 139.]


text:
    The People of the State of New York, Respondent, v John Ciaccio, John Cerverizzo, Thomas De Sousa and Robert Velez, Appellants.
    Submitted February 5,1979;
    decided February 8,1979
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: On the appeal therein a question under the Constitution of the United States was presented and necessarily passed upon, viz.: Did the prosecutor’s summation deprive appellants of their constitutional right to a fair trial? [See 45 NY2d 626.]


text:
    Robert Whelen et al., Appellants, v Warwick Valley Civic and Social Club, Respondent.
    Submitted January 8,1979;
    decided February 8,1979
   Motion to dismiss the appeal herein denied.


text:
    Mary Waiters et al., Appellants, v Board of Education, Amityville Union Free School District, et al., Respondents.
    Argued January 8,1979;
    decided February 13, 1979

      APPEARANCES OF COUNSEL

      Jeffrey S. Karp and James R. Sandner for appellants.

      Le Roy Van Nostrand, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, Suffolk County, reinstated.

Plaintiffs were employed as remedial reading teachers in defendant’s elementary schools through the 1973-1974 and 1974-1975 academic years. Their positions were terminated in 1975 after defendant had computed their tenure and seniority rights in a special remedial reading tenure area. Plaintiffs instituted this action seeking a declaration that their tenure and seniority rights should be determined in the horizontal elementary tenure area rather than the vertical remedial reading tenure area as designated by defendant.

Certainly, defendant could have established remedial reading as an independent tenure area, distinct from the broader tenure area in which plaintiffs held their licenses (cf. 8 NYCRR 30.8 [a] [13] [eff April 1, 1976]). However, it may not purport to establish a special tenure area during periods of fiscal exigency and gauge plaintiffs’ seniority and tenure rights accordingly. Rather, there must be evidence that remedial reading was traditionally treated as a separate and distinct tenure area by the board and that persons hired for the position were "sufficiently alerted to the fact that in * * * taking on the duties of [remedial reading teachers] they were entering an entirely independent tenure area” (Steele v Board of Educ., 40 NY2d 456, 463).

The record in this case, however, establishes only that plaintiffs were engaged as remedial reading teachers and that until their positions were abolished, their tenure and seniority rights were computed in the horizontal elementary tenure area. It is in that area in which those rights must now be determined (compare Matter of Mitchell v Board of Educ., 40 NY2d 904, 905, with Matter of Neer v Board of Educ., 61 AD2d 1014). Indeed, each of plaintiffs’ appointments was couched in terms indicating that seniority was to be measured in the elementary tenure area and, therefore, lacked the requisite notice necessary to apprise them that their rights were to be calculated in a special tenure area. Under these circumstances, defendant’s belated attempt to set up a new vertical tenure area is incompatible with the admonition against retroactive restructuring of traditional tenure areas (see Matter of Baer v Nyquist, 34 NY2d 291).

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

Order reversed, etc.

       As was true in the courts below, the new proof submitted on the motion to reargue may not be considered on the appeal in our court.


text:
    Apache-Beals Corp., Appellant, v International Adjusters, Ltd., et al., Defendants, and Canadian Steel Sales, Ltd., Respondent.
    Argued January 3, 1979;
    decided February 13, 1979

      APPEARANCES OF COUNSEL

      Edwin P. Yaeger for appellant.

      Philip B. Ahramowitz for respondent.
   OPINION OF THE COURT

Memorandum.

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

Although appellant, contrary to the conclusion reached by the Appellate Division, has not conceded the existence of a shortage in the amount of steel sold to respondent Canadian, it has nevertheless failed to set forth any evidentiary facts sufficient to defeat respondent’s motion for summary judgment. (See Rotuba Extruders v Ceppos, 46 NY2d 223.)

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

Order affirmed.


text:
    In the Matter of the Claim of George Lewis, Appellant, v Toring Taxi Co., Inc., et al., Respondents, and Special Disability Fund, Respondent. Workers’ Compensation Board, Respondent.
    Submitted January 5, 1979;
    decided February 13, 1979

      APPEARANCES OF COUNSEL

      Anne G. Kafka for appellant.

      William F. Fischer, Jr., for Toring Taxi Co., Inc., and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

Whether claimant’s injury arose out of and in the course of his employment presents a question of fact which has been answered in the negative by the board. We cannot say, as a matter of law, that substantial evidence does not exist to support this determination. (See Matter of McGrinder v Sullivan, 290 NY 11, 12.)

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

Order affirmed.


text:
    Megin Realty Corp., Appellant, v Morton Baron et al., Constituting the Town Board of the Town of Ramapo, et al., Respondents.
    Argued January 2,1979;
    decided February 13,1979

      APPEARANCES OF COUNSEL

      Donald S. Tracy for appellant.

      Kenneth S. Resnik, Andrew R. Stoller and Mitchell Philip Schechter for respondent.
   OPINION OF THE COURT

Memorandum.

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

In August of 1972 the plaintiff, Megin Realty Corporation, purchased two adjoining irregularly shaped parcels of property with a combined area of 12.675 acres. At that time the plaintiff was aware that the land was zoned "planned industrial” but nevertheless made the purchase for speculation. Permitted uses include office buildings, laboratories, catering facilities, warehouses, wholesaling and distribution businesses, and, by special permit, hotels, motels, tennis courts, swim clubs, health spas, and motor vehicle sales and service agencies.

Prior to 1972 the adjacent parcel of land to the east was also zoned planned industrial, but in May of that year a request that the zoning classification be changed to "commercial highway” was granted. Subsequently a new shopping center has been built on the rezoned parcel. Sometime later, the plaintiff, together with its immediate northwest neighbor, similarly sought to have its zoning changed to commercial highway, but the application was denied because, inter alia, the Town of Ramapo Planning Board determined that commercial development should be focused at major intersections rather than being extended along the roadways. Plaintiff thereupon commenced this action for a determination that the zoning classification is unlawful as applied to it, and also sought a zone change to commercial highway.

After a trial Supreme Court, Rockland County, found that the parcels were not capable of yielding a reasonable return under the existing zoning, and declared the ordinance illegal as applied. The Appellate Division reversed, since the plaintiff had not established that the designation was either confiscatory or discriminatory. We now affirm that determination.

It is black-letter law that in order to establish confiscatory zoning the challenger must prove that the land will yield no reasonable return if used for any permitted purpose (Marcus Assoc. v Town of Huntington, 45 NY2d 501; McGowan v Cohalan, 41 NY2d 434; Williams v Town of Oyster Bay, 32 NY2d 78). This requires that " 'the applicant * * * demonstrate that the return from the property would not be reasonable for each and every permitted use under the ordinance’ ” (Williams v Town of Oyster Bay, supra, at p 82; Matter of Forrest v Evershed, 7 NY2d 256, 262). This the plaintiff manifestly has not done. Indeed, its witnesses conceded at trial that the land was suitable for several of the permitted uses. The Appellate Division was correct in determining that the ordinance was not confiscatory.

Also correct is the conclusion that Megin Realty Corporation’s allegation of "discrimination” was not sufficiently established to declare the zoning illegal. Plaintiff sought, by merely showing that its neighbor’s request for a zoning change was granted, to challenge its own zoning on the ground that its request to change was denied. Mere proof that a single other parcel has had its zoning status altered does not give the owners of neighboring parcels a vested right to a similar change. If this were the case, any deviation from the master plan would incur the risk of wholesale attacks on the plan itself in the name of "discrimination”, creating an illegal "domino” effect. The resulting inflexibility would be contrary to the best interests of those served by a zoning plan. There being no showing that plaintiff’s property was singled out in the zoning district for different zoning limitations (cf. Udell v Haas, 21 NY2d 463, esp pp 476-478), the challenge must fail.

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

Order affirmed.


author: Gabrielli, J.

text:
    In the Matter of Joseph Di Giacomo et al., Respondents, v City of New York et al., Appellants.
    Argued January 3, 1979;
    decided February 13, 1979

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Irving Cohen and Leonard Koerner of counsel), for appellants.

      Richard A. Dienst for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the order and the judgment of Supreme Court, New York County, dismissing the petition reinstated on the dissenting opinion by Mr. Justice Samuel J. Silverman at the Appellate Division (58 AD2d, at pp 358-362). Question certified answered in the negative.

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

Gabrielli, J.

(dissenting). I dissent and vote to affirm the order appealed from and answer the question certified in the affirmative, for the reasons stated by Mr. Justice Louis J. Capozzoli in his concurring opinion at the Appellate Division (58 AD2d 347, 358). There is nothing in the memoranda of agreement between the parties indicative of any intent to distinguish between the various types of pension plans. Thus, at this stage in the proceedings, the legal conclusion that there was such an intent is based on sheer speculation. Indeed, the letters of May 10 and May 13, 1968 represent a perfectly valid agreement. To deprive the appellant pensioners of their day in court, based upon this record, is unwarranted.

Order reversed, etc.


text:
    In the Matter of Julio Camacho, Respondent, v John P. Iafrate, as Director of Pilgrim Psychiatric Center, Appellant.
    Submitted January. 29, 1979;
    decided February 13, 1979
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (see Matter of Minerals & Chems. Philipp Corp. [Panamerican Commodities, S. A. — World Commerce Corp., S. A.], 15 AD2d 432, appeal dsmd 11 NY2d 1109, mot to resettle order den 12 NY2d 672, cert den 372 US 910).


text:
    Scott M. Bethune, Appellant, v Alexander J. Bethune, Respondent.
    Argued January 11, 1979;
    decided February 15, 1979

      APPEARANCES OF COUNSEL

      L. Mifflin Hayes and Morton Mondschein for appellant.

      Alexander Potruch, Kenneth Koopersmith and Michael K. Feigenbaum for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the judgment of Supreme Court, Nassau County, reinstated for the reasons stated in the opinion by Mr. Justice James F. Niehoff at Trial Term.

Concur: Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Fuchsberg. Judge Jasen dissents and votes to affirm in the following memorandum: I would agree with the majority at the Appellate Division that the separation agreement construed as an entity, does not mandate an open-ended obligation to provide university tuition and "living expenses” to an emancipated adult child.


text:
    In the Matter of the State of New York, by Louis J. Lefkowitz, as Attorney-General of the State of New York, Appellant-Respondent, v South Haven Houses Housing Development Fund Company, Inc., et al., Respondents, and National Bank of North America, Respondent-Appellant.
    Argued January 8, 1979;
    decided February 15, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Shirley Adelson Siegel, Samuel A. Hirshowitz, Meyer S. Horowitz, Maurice A.M. Edkiss and Charles Goldstein of counsel), for appellant-respondent.

      Joseph A. Di Benedetto, Andrea Catania and Edward N. Meyer for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

Inasmuch as the petitioner Attorney-General alleged that the respondent National Bank of North America violated the provisions of article 7 (tit 1) of the General Obligations Law, the petitioner had legal standing to institute this proceeding against the respondent bank and, therefore, the petition should not have been dismissed on the ground that petitioner lacked standing. (See General Obligations Law, § 7-107.) An examination of the record before us, however, reveals petitioner failed to set forth any evidentiary facts to substantiate his claim that respondent acted in a fraudulent and illegal manner in violation of the General Obligations Law. Consequently, the petition was properly dismissed inasmuch as summary judgment should have been granted for respondent bank. (See Matter of Knickerbocker Field Club v Site Selection Bd. of City of N. Y., 41 AD2d 539, 540; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:23, p 443.)

Accordingly, for the reasons stated, the order of the Appellate Division should be affirmed, without costs to respondent. Respondent’s cross appeal from so much of the order of the Appellate Division as dismissed respondent’s appeal from an order of Special Term denying reargument should be dismissed, without costs to petitioner, as the denial of reargument involves a question of discretion of the type not reviewable by this court. (Cohen and Karger, Powers of the New York Court of Appeals, § 147, pp 584-585.)

Gabrielli, J.

(concurring). I concur in the result. In my opinion, however, the provisions of title 1 of article 7 of the General Obligations Law impose no obligations upon the bank in which security deposits are deposited. Thus, section 7-107 of the General Obligations Law cannot serve to provide the Attorney-General with standing to proceed against such a bank for alleged violations of the statute.

If, on the other hand, the bank were to have engaged in a collusive scheme to defraud the tenants, the Attorney-General might then have standing to intervene pursuant to subdivision 12 of section 63 of the Executive Law in an appropriate case. However, no factual allegations supporting such a claim have been made.

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

Order affirmed, without costs. Respondent National Bank’s cross appeal from so much of the order of the Appellate Division as dismissed its appeal from an order denying reargument dismissed, without costs.


text:
    In the Matter of Rubin Maloff et al., Appellants, v City Commission on Human Rights and Nancy Schriber, Respondents, and Council of Supervisors and Administrators of New York City, Local 1, SASOC, AFL-CIO, Intervenor-Appellant.
    Argued January 10, 1979;
    decided February 15, 1979

      APPEARANCES OF COUNSEL

      Gary J. Greenberg and Sybil H. Pollet for appellants.

      Leonard Greenwald and Thomas M. Kennedy for intervenor-appellant.

      Allen G. Schwartz, Corporation Counsel (Allen Serrins and Karene A. Freeman of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Notwithstanding an erroneous reference to a "fatal taint” standard of review, it is clear that the New York City Commission on Human Rights concluded, based upon sufficient evidence (Administrative Code of City of New York, § Bl-9.0), that the unsatisfactory rating given respondent Schriber was not based upon legitimate nondiscriminatory grounds but, rather, upon grounds discriminatory in nature. (See Matter of Maloff v Commission on Human Rights [Anilyan], 46 NY2d 908 [decided herewith]; Matter of Pace Coll, v Commission on Human Rights, 38 NY2d 28, 40.) Inasmuch as the damages awarded by the commission were intended to compensate respondent for the retaliatory practices of appellant Maloff rather than as compensation for the unsatisfactory rating received by respondent, they were properly ordered. In sustaining this award, we reject appellant MalofFs contention that the commission lacked the authority to award damages against him in his individual capacity. The commission has wide discretion in formulating remedial relief to prevent discrimination. (Cf. New York Inst. of Technology v State Div. of Human Rights, 40 NY2d 316, 324-325.) On the facts before us, we cannot say that the commission erred as a matter of law. (Id., at p 325.)

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

Order affirmed.


text:
    In the Matter of George W. Reese, Jr., Appellant, v William M. Lombard, as Sheriff of Monroe County, et al., Respondents. In the Matter of William Sexstone, Appellant, v William M. Lombard, as Sheriff of Monroe County, et al., Respondents. In the Matter of Richard C. Schott, Appellant, v William M. Lombard, as Sheriff of Monroe County, et al., Respondents. In the Matter of David C. Steinmiller, Appellant, v William M. Lombard, as Sheriff of Monroe County, et al., Respondents. In the Matter of Albert D. Detandt, Appellant, v William Lombard, as Sheriff of Monroe County, et al., Respondents.
    Argued January 11, 1979;
    decided February 15, 1979

      APPEARANCES OF COUNSEL

      Richard R. Rowley and Brian J. O’Donnell for appellants.

      Russell I. Zuckerman and Thomas G. Dignan for William M. Lombard, respondent.
   OPINION OF THE COURT

Memorandum.

The orders appealed from should be affirmed, with costs, on the basis of our holding and the rationale enunciated in Matter of Sirles v Cordary (40 NY2d 950, affg on opn at 49 AD2d 330). We would caution, however, that the rationale enunciated in Sirles is properly applicable only to purported contractual limitations upon a new Sheriffs power to appoint, retain, dismiss, promote, or demote deputies whose office required the performance of some civil obligations, and might not serve to justify repudiation by a new Sheriff of other terms of a contract validly entered into by his predecessor.

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

Orders affirmed, with costs, in a memorandum.


text:
    Church of Scientology of New York, Respondent, v State of New York et al., Appellants. Church of Scientology of New York, Respondent, v State of New York et al., Appellants.
    Argued January 11,1979;
    decided February 15, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert S. Hammer and Samuel A. Hirshowitz of counsel), for appellants.

      David G. Lubell and Richard C. Hamlin for respondent.
   OPINION OF THE COURT

Memorandum.

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

The record on appeal is wholly insufficient to sustain the refusal to disclose the materials sought by petitioner under the provisions of the Freedom of Information Act (Public Officers Law, art 6). In support of the denial of access the State officials have tendered only references to sections, subdivisions and subparagraphs of the applicable statute and conclusory characterizations of the records sought to be withheld. There is no tender of any factual basis on which to determine whether the materials sought either fell outside the scope of mandated disclosure under former section 88 (L 1974, ch 578, § 2; ch 579, § 2; ch 580, § 1, eff Sept. 1, 1974) or come within the exceptions specified in subdivision 2 of present section 87 of the Public Officers Law (L 1977, ch 933, § 1, eff Jan. 1, 1978). Nor is there any justification for remittal for in camera inspection. The parties resisting disclosure made no request for such inspection. Indeed, the record contains no predicate on which an application therefor might have been based.

As to the Attorney-General’s contention that the article 78 proceeding against him was barred by the Statute of Limitations, it suffices to note that the period of limitations ran from the date on which petitioner received notice of the denial of its appeal under subdivision 4 of section 89 of the Public Officers Law (8 Weinstein-Korn-Miller, NY Civ Prac, par 7804.02, pp 78-106).

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

Order affirmed.


text:
    In the Matter of Rubin Maloff et al., Appellants, v City Commission on Human Rights and Mary Anilyan, Respondents.
    Argued January 10, 1979;
    decided February 15, 1979

      APPEARANCES OF COUNSEL

      Sybil H. Pollet and Gary J. Greenberg for appellants.

      Allen G. Schwartz, Corporation Counsel (Allan Serrins and Karene Freeman of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court, New York County, with directions to remand to the New York City Commission on Human Rights for further proceedings in accordance herewith.

The commission could reasonably conclude that a prima facie case of retaliation had been established in view of the fact that one of the reasons stated for the complainant’s discharge was her prior complaint of discrimination which had been dismissed by the commission. The commission erred however in concluding that it need not consider whether there is any substance to the other reasons stated by the petitioners as legitimate nonretaliatory grounds for the dismissal. The standard is not, as the commission suggests, that a discriminatory reason "fatally taints” the discharge; nor is the standard, as the petitioners suggest, that the employee must show that the discriminatory ground was the "sole reason” for the discharge.

Once the prima facie showing of discrimination had been made, the burden shifted to the petitioners to show that "the employee was terminated for some independent legitimate reason which was neither a pretext for discrimination nor was substantially influenced by impermissible discrimination” (Matter of Pace Coll, v Commission on Human Rights, 38 NY2d 28, 40; see, also, Matter of Maloff v Commission on Human Rights, 38 NY2d 329). Thus upon remittal, the commission should "weigh the evidence, make the permissible inferences, and * * * come to conclusions supported by the evidence” as to whether the unsatisfactory rating was, in this instance, based on legitimate nondiscriminatory grounds or whether those grounds were used as a pretext or were substantially influenced by discrimination (Matter of Pace Coll, v Commission on Human Rights, supra, p 40).

As to the appropriateness of the remittal to fix damages see Matter of Maloff v City Comm. on Human Rights (Schriber) (46 NY2d 902 [decided herewith]).

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

Order reversed, etc.


text:
    Lewis Werb et al., Appellants, v Port Authority of New York and New Jersey, Respondent.
    Argued January 10, 1979;
    decided February 15, 1979

      APPEARANCES OF COUNSEL

      Lewis Werb, pro se, and John F. Hamm for Lewis Werb and another, appellants.

      Arthur P. Berg, Patrick J. Falvey, Joseph Lesser and Sholem Friedman for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant concedes, as well he must, that the Board of Commissioners of the Port Authority itself was possessed of the power to limit the sale of the two-year discount ticket books to one to a customer (cf. Levine v Long Is. R. R. Co., 30 NY2d 907, affg 38 AD2d 936, cert den 409 US 1040). Moreover, in the absence of any direction from the commissioners to the contrary, and there was none here, it is extremely doubtful, to say the least, that explicit permission to apply such a limitation was required before the authority’s executive director, its chief operational officer, could put one into effect to prevent customer stockpiling of books. In any event, any possible question on that score was rendered academic by the commissioners’ duly adopted resolution authorizing the director "to arrange for the sale of the books of tickets * * * upon such terms and conditions as shall be reasonable and desirable”. That mandate, broad enough to encompass the director’s act here, was a reasonable and lawful delegation of authority.

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

Order affirmed.


text:
    David R. Monacelli, by His Guardian ad Litem, Eva J. Adams, et al., Appellants, v Albert V. Armstrong et al., Defendants, and Rochester Telephone Corporation et al., Respondents, et al., Defendants. Richard E. Wright et al., Appellants, v Albert V. Armstrong et al., Defendants, and Rochester Telephone Corporation et al., Respondents, et al., Defendants.
    Submitted January 15, 1979;
    decided February 15,1979
   Motion to dismiss the appeals herein granted and the appeals taken as against Rochester Telephone Corporation and Rochester Gas and Electric Corporation dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from a unanimous affirmance, by the Appellate Division, of a separate order of Special Term (see Kramb v Fincher, 301 NY 809).

Motions for leave to appeal denied.


text:
    The People of the State of New York, Appellant, v Jonathan Wharton, Respondent.
    Argued January 5, 1979;
    decided February 22, 1979
    APPEARANCES OF COUNSEL

      Denis Dillon, District Attorney (Judith K. Rubinstein and William C. Donnino of counsel), for appellant.

      Leslie P. Rudman, Matthew Muraskin and Michael J. Obús for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On this appeal, the People urge us to reverse a finding of Nassau County Court, affirmed by the Appellate Division, that the police lacked probable cause to arrest defendant Jonathan Wharton. A probable cause determination, involving mixed questions of law and fact (People v Oden, 36 NY2d 382, 384), is beyond the review powers of this court in those instances when conflicting inferences may be drawn from the record (see, e.g., People v Morales, 42 NY2d 129, 134-135; People v Rizzo, 40 NY2d 425, 430; People v Oden, supra). Where, as here, reasonable minds may differ as to the inferences and thus as to whether the arrest was justified, we may not interfere with the affirmed findings of that court possessing authority to resolve the issues of fact.

Gabrielli, J.

(dissenting). It is recognized, of course, that a probable cause determination is one involving mixed questions of law and fact and, insofar as the determination is factual in nature, it is beyond the review powers of this court. Where, however, the facts and circumstances are undisputed, there is no problem as to credibility, and only one inference can reasonably be drawn therefrom, then the question of whether there is probable cause is purely one of law (People v Morales, 42 NY2d 129, 134-135, cert den 434 US 1018; People v Rizzo, 40 NY2d 425, 430; People v Oden, 36 NY2d 382, 384). In the case before us, the evidence presented on the hearing impels but one legal conclusion — that there was probable cause for the arrest. I must therefore dissent.

Our inquiry begins with a recognition of the standard applicable to these determinations. The evidence required to establish probable cause to arrest is not required to be such as to establish proof beyond a reasonable doubt or warrant a conviction (People v Miner, 42 NY2d 937, 938). Instead, if the observations or information are sufficient to move a reasonable person to conclude that a crime is being attempted or committed, probable cause exists (People v White, 16 NY2d 270, 273, cert den 386 US 1008; People v Santiago, 86 Misc 2d 785, 788).

Here, the arrest occurred in an area known for its high incidence of burglaries (see, e.g., People v Hunter, 30 NY2d 774, 776); and the police found a torn plastic bag containing a large number of power tools, lying, apparently abandoned, along the highway. It appears further that burglars regularly parked along this road while breaking into nearby homes and, suspecting that the tools may have been abandoned when the thief’s plastic bag broke during his flight, the police parked to observe the tools. Their suspicions were confirmed when, shortly before midnight, a taxicab backed onto the highway, stopping beside the tools and the defendant ran directly to the bag, scooping it up without even examining its contents, and then ran back to his taxi. Certainly, in the face of the highly unlikely event that some innocent person carelessly abandoned these valuable tools, the observations of the police and their information concerning the habits of burglars in the area were sufficient factors to move a reasonable person to suspect that a crime was being attempted or committed. (See CPL 140.50.) Based upon this suspicion, the police were entitled to stop the defendant and demand from him an explanation of his conduct. To accomplish this task, the police were justified in stopping the taxicab which had pulled away immediately upon the defendant’s re-entry with the plastic bag. When the vehicle came to a halt, the police observed the defendant attempt to exit the vehicle. It was at this point that the officers emerged from their cars with guns drawn and shouted freeze. Under the circumstances, evincing as they did the possibility that the defendant was attempting to flee, the predicate for the police conduct crossed the line from reasonable suspicion to probable cause, justifying the defendant’s seizure and arrest. While by a wild stretch of the imagination one could conjure up an innocent explanation for the defendant’s conduct, the totality of the circumstances here points in the opposite direction and clearly establishes the existence of probable cause.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Carl D. Wyatt, Appellant.
    Argued January 12, 1979;
    decided February 22, 1979

      APPEARANCES OF COUNSEL

      Michael Lo Pinto for appellant.

      Joseph Joch, District Attorney (Andrew P. Starostecki of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (60 AD2d 958).

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


text:
    The People of the State of New York, Respondent, v Luis Arroyo, Appellant.
    Argued January 12, 1979;
    decided February 22, 1979

      APPEARANCES OF COUNSEL

      Peter Branti, Jr., Public Defender (John F. McAlevey of counsel), for appellant.

      Kenneth Gribetz, District Attorney (James H. Mellion of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court did not err in upholding the refusal of the witness called by the defense to testify based on the assertion of his constitutional privilege against self incrimination. There is nothing in this record to take this case out of the general rule that the witness is the judge of his right to invoke the privilege (People ex rel. Taylor v Forbes, 143 NY 219, 230-231; see, also, 65 NY Jur, Witnesses, § 43, p 196).

Nor did the refusal of the prosecutor to grant the witness immunity deny defendant due process or deprive him of his right to a fair trial. It suffices for present purposes to note that the witness here was not an agent of the law enforcement authorities or otherwise in any way a part of the prosecutorial apparatus. (Cf. People v Sapia, 41 NY2d 160).

Finally, we agree that no error was committed by the trial court when it refused to receive the pretrial hearsay statement made by the witness to the District Attorney’s office.

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

Order affirmed in a memorandum.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v George Budd, Appellant.
    Argued January 11,1979;
    decided February 22,1979

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Deborah S. Gerber of counsel), for appellant.

      Lawrence T. Kurlander, District Attorney (Adam H. Bernstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The question as to whether the People have exercised due diligence in their efforts to locate or produce an informant, whose testimony may be needed by the defendant at trial (People v Jenkins, 41 NY2d 307), is essentially factual. A determination of this nature, if affirmed by the intermediate appellate court, is beyond review in this court unless the evidence is insufficient, as a matter of law, to support the finding (cf. People v Oden, 36 NY2d 382).

Here the defendant argues that the police did not exercise due diligence in their search for the informant because they did not attempt to locate him until the trial had begun. The defendant also argues that the police failed to pursue certain leads, none of which, however, were specified at the trial when the motion to dismiss or direct a further search was made. The trial court held that, under the circumstances, the police had exercised due diligence noting, in response to the defendant’s only specific objection which concerned the timing of the search, that the People had not been directed earlier to produce or retain the informer and that the police had acted promptly when the court concluded that the evidence at trial indicated that the defendant should be permitted to call the informant to testify. In light of the Appellate Division’s affirmance of that determination it cannot be said that the People failed, as a matter of law, to exercise due diligence in this particular case.

Fuchsberg, J.

(dissenting). On the full record here I would hold as a matter of law that the People had exerted "inadequate efforts to ascertain” the informer’s whereabouts as required by People v Jenkins (41 NY2d 307, 311) itself.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v James F. Hamilton, Appellant.
    Argued January 12, 1979;
    decided February 22,1979

      APPEARANCES OF COUNSEL

      Dirk A. Galbraith for appellant.

      Joseph Joch, District Attorney, for respondent.
   OPINION OF THE COURT

Per Curiam.

A delay of one year and 13 days occurred between November 13, 1975, the date the felony complaint was filed, and November 26, 1976, the date the People were ready for trial. Since this period exceeds six months, defendant’s motion to dismiss the indictment on the ground of denial of a speedy trial must be granted (CPL 30.30, subd 1, par [a]) unless sufficient time is excludable to shorten the period of delay chargeable to the People to six months or less (CPL 30.30, subd 4; People v Sturgis, 38 NY2d 625).

Although the People offer numerous excuses for the delay, only the period from May 10, 1976 to August 10, 1976 is excludable as resulting from defendant’s pretrial motions (CPL 30.30, subd 4, par [a]). The contention that the People were excusably delayed by the need to investigate the crime further is not supported by the record (see People v Washington, 43 NY2d 772, 774). Nor is there support in the record for the People’s contention that they were ready to proceed in May of 1976. To sustain such an assertion, the People must communicate readiness for trial to the court on the record when ready to proceed. It is insufficient, as a matter of law, to inform the court of such a claim for the first time in an affidavit submitted in response to a motion to dismiss the indictment (see United States v Pierro, 478 F2d 386).

Finally, it bears emphasis that the right to a speedy trial guaranteed by CPL 30.30, which relates to prosecutorial readiness, is not dependent in any way on whether the defendant has expressed his readiness for trial or whether the defendant can demonstrate prejudice resulting from the delay.

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

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Andrew D. Blim, Appellant.
    Argued January 12, 1979;
    decided February 22, 1979

      APPEARANCES OF COUNSEL

      Alan D. Scheinkman for appellant.

      Stewart E. McDivitt, District Attorney (James P. Coleman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

This CPL 440.10 motion was brought on after defendant’s violation of his original sentence to probation had resulted in the substitution of a prison term. For the first time defendant then claimed that he was denied the right to counsel when he confessed and, thereafter, when he pleaded guilty (see People v Hannigan, 7 NY2d 317, 318). However, whatever merits his appeal in these regards could possess, they rest on a version of the facts rejected by the County Court after a hearing on the motion and then again by the Appellate Division. For instance, defendant’s on-the-record responses to the inquiries of the County Judge at the time of the plea included ones that he understood the consequences of the plea, that he had committed the acts which formed the basis for the crimes to which they were directed and that he was then being advised by competent counsel of his choice (People v Seaton, 19 NY2d 404, 406). And, since our own examination of the record reveals factual support for the findings below, they are beyond our power of review (People v Gruttola, 43 NY2d 116, 122).

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

Order affirmed in a memorandum.


text:
    John Dellaratta, Plaintiff, v International House of Pancakes, Defendant. Nicholas S. Carlisi, Appellant; Goldstein & Garbar, Respondent.
    Submitted January 15, 1979;
    decided February 22, 1979
    APPEARANCES OF COUNSEL

      Nicholas S. Carlisi, pro se, for motion.

      Harvey O. Garber, opposed.
   OPINION OF THE COURT

Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the supporting papers, including brief, were not served at least eight days prior to the January 15, 1979 statutory return date of the motion (CPLR 5516, 2214; 22 NYCRR 500.9).

NOTICE TO THE BAR

The attention of the Bar is directed to the February 22, 1979 publication of a New York State Court of Appeals decision affecting the court’s motion practice and procedure. In Dellaratta v International House of Pancakes [Carlisi, appellant], the court dismissed a motion for leave to appeal upon the ground supporting papers, including brief, were not served at least eight days prior to the statutory return date of the motion (CPLR 5516, 2214; 22 NYCRR 500.9). (Emphasis added.)


text:
    John T. Mather Memorial Hospital of Port Jefferson, Inc., Respondent, v James M. Ronski, Appellant.
    Submitted February 12, 1979;
    decided February 22,1979
   Motion, insofar as it seeks leave to appeal from other portions of the order of the Appellate Division, dismissed upon the ground that said portions do not finally determine the action within the meaning of the Constitution.

Motion for a stay dismissed as academic.


text:
    Lloyd Matott, Respondent, v Charles L. Ward et al., Appellants.
    Submitted January 22,1979;
    decided February 22, 1979
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York, Appellant, v Barbara Ann Mincey, Respondent.
    Submitted February 12, 1979;
    decided February 22, 1979
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York, Respondent, v William Wooden, Appellant.
    Submitted January 29, 1979;
    decided February 22, 1979
   Motion for an extension of the time within which to move for reargument granted. Motion for reargument denied. (See People v Robles, 42 NY2d 1051.) [See 31 NY2d 753.]


text:
    The People of the State of New York ex rel. Alex Mystek, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted February 5, 1979;
    decided February 22, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that 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 (People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    Charles J. Spindler et al., Appellants, v Mahlon L. Fast et al., Respondents.
    Decided February 22, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    Sturdy Concrete Corp., Respondent, v Nab Construction Corp., Appellant.
    Decided February 22, 1979
   Appeal dismissed, without costs, by thev Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    In the Matter of the Accounting of John A. Read, as Surviving Trustee of the Trusts Created Under the Will of Alice E. Wilhelm, Deceased. Torrance Brooks, as Guardian ad Litem for Michele E. Malone, an Infant, Appellant-Respondent; Carl Wilhelm, Respondent-Appellant; Frederick J. Gram, as Guardian ad Litem for Amy Wilhelm and Others, Infants, Respondents.
    Argued February 6, 1979;
    decided March 20, 1979

      APPEARANCES OF COUNSEL

      Allan R. Lipman and Wayne D. Wisbaum for Carl Wilhelm, appellant.

      Torrance Brodks, as guardian ad litem for Michele Malone, an infant, appellant.

      Frederick J. Gram for respondent.
   OPINION OF THE COURT

On the appeals by Michele Elaine Malone: Order of the Appellate Division, as amended, which reversed a decree of the Surrogate’s Court and directed entry of a decree in accordance with the opinion of the Appellate Division affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, for the reasons stated in the opinion by Mr. Justice Richard D. Simons at the Appellate Division (60 AD2d 32).

Appeal from so much of the order of the Appellate Division, dated April 7, 1978, as amended the Appellate Division opinion dismissed, without costs, upon the ground that no appeal lies from an order amending an opinion.

On the appeal by Carl Wilhelm: Appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution and the Appellate Division in granting leave to appeal failed to certify a question of law decisive of the correctness of its determination (CPLR 5713), and upon the further ground that, in view of the disposition of the appeals by Michele Elaine Malone herein, the appeal is academic.

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


text:
    In the Matter of State Division of Human Rights, Appellant, v Averill Park Central School District, Respondent.
    Argued January 10, 1979;
    decided March 20, 1979

      APPEARANCES OF COUNSEL

      Ann Thacher Anderson for appellant.

      Morton D. Shulman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice John L. Larkin at the Appellate Division (59 AD2d 449).

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

Fuchsberg, J.

(dissenting). We are here called upon to construe so much of the Human Rights Law as prohibits an employer from discriminating against any individual by reason of a disability unrelated to his employment (Executive Law, § 292, subd 21). A subsidiary question, here hardly contestable, is whether, if the employment may be deemed unrelated, the State Division of Human Rights’ finding of discrimination was supported by substantial evidence.

The issues come to us on appeal from an order of the Appellate Division annulling a determination of the State Human Rights Appeal Board, which affirmed an order of the Human Rights Division directing the petitioner Averill Park Central School District to offer the complainant, Leo M. Vissa, reinstatement to the position of school bus driver. For the reasons that follow, I would reverse the order of the Appellate Division and restore the order of the Human Rights Division.

Since the facts — essentially undisputed — pragmatically, pertinently and precisely epitomize the kind of problem the statute was enacted to meet, I start with their recital:

Vissa had been employed by the district as a bus driver for 12 years. He was always an exemplary employee. Specifically, among other things, he had never been involved in an accident, never received a traffic summons and never been the subject of unfavorable comment by students, parents or school authorities.

In August, 1974, a routine hearing test was administered to him by a school nurse, who undisputably had no special competency in auditory matters. Solely on the basis of her report, which showed a hearing loss at frequencies higher than 4,000 cycles per second, and without making any independent examination of his own, the school physician, a general practitioner without any particular training in otolaryngology, determined that, though Vissa’s hearing was "adequate” at normal speech levels, he was physically unfit to perform the duties of a bus driver. Thereupon the school district, without more, demoted him to a custodial job at a lower salary. This is the sum total of the evidence of the disability presented by the school authorities at the public hearing subsequently conducted by the Division of Human Rights.

In contrast, the opposing proof was overwhelming. Though Vissa’s hearing had tested imperfectly for years, it had not adversely affected his work, as his performance bore out. Moreover, his condition apparently was not progressive, for only two months before the nurse’s examination which the school physician chose to adopt, Vissa’s hearing had been tested by the Veterans’ Administration hospital and found essentially unchanged, if not improved, from what it had been four years earlier. Indeed, in the two years preceding his demotion he had passed the annual hearing tests conducted by other school nurses with flying colors. Above all, at the Human Rights hearing, three highly qualified specialists, one associated with the VA hospital that had tested Vissa’s hearing in 1974 and 1975, the second the chief of otolaryngology at the VA hospital, and the third the chief research consultant to the New York League for the Hard of Hearing and a celebrated expert in the field of environmental noise, all unequivocally rejected the school doctor’s conclusion. Their unimpeached testimony established that every sound a bus driver must be able to hear in order to drive safely includes low-frequency and medium-frequency components, both well within Vissa’s range of hearing, that there was no environmental noise Vissa would not be able to hear, that the most critical frequencies of emergency or distress signals range from 500 through 2,000 cps, that warning devices are designed to emit noise around the 500 to 2,000 and not the 4,000 range, that the tests adopted by the Federal Highway Administration for drivers of interstate buses do not go beyond 2,000 cps, that Vissa’s hearing easily met these standards, and that there was no acoustical contingency that might arise which would be inaudible to him.

Tellingly, any serious assertion that Vissa’s hearing impairment interfered in any way with his work as a school bus driver was eliminated on cross-examination of the school physician. The good doctor not only agreed that Vissa could hear the low- and middle-frequency components of sounds emitted across the frequency range, but he candidly admitted his ignorance of whether warning sounds emitted only in a high frequency were also concomitantly emitted in the low and middle frequencies. Finally, after the conclusion of the public hearing but before the Division of Human Rights issued its order, New York State’s Department of Motor Vehicles adopted the Federal standard for the licensing of school bus drivers (15 NYCRR 6.11 [b] [11], 6.12 [c], 6.13) and the State Department of Education has followed suit (8 NYCRR 156.3 [c] [l]).

On this record and in face of the injunction that the Human Rights Law, as remedial legislation, be construed liberally (Executive Law, §§ 290, 300), the Appellate Division found it necessary to rely on what I respectfully suggest is an erroneous interpretation of the exclusionary phrase “unrelated activity” as it appears in subdivision 21 of section 292 of the statute. That section, whose construction is therefore at the heart of this appeal reads in pertinent part: “The term 'disability’ means a[n] * * * impairment * * * provided however, * * * the term shall be limited to * * * conditions which are unrelated to the ability to engage in the activities involved in the job or occupation which a person claiming protection of this article shall be seeking”. Ignoring the principle that the proviso, as an exception, ordinarily would "be strictly construed in order that the major policy underlying the legislation itself is not defeated” (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 213; 2A Sutherland, Statutory Construction [4th ed], §§ 47.08, 47.11), the court found an intent to broadly exclude disabilities that conceptually could be said to be related in any way to the job in question, without regard to whether it did so in a particular complainant’s case. In its view, because some hearing defects conceivably could make it unsafe to drive a school bus, even those drivers whose hearing defects do not in fact interfere in any way whatsoever with their abilities to hear everything their jobs require are nevertheless also to be left unprotected by the Human Rights Law.

On the other hand, the Division of Human Rights contends that, in order for the exclusionary proviso in the statute to come into play, the disability to which it is sought to be applied must be one rendering the particular disabled person unable, in whole or in part, to perform the duties of the job or occupation involved. On such an analysis, requiring a determination that the specific individual involved is in fact vocationally incapacitated, Vissa’s high frequency hearing loss would not come within the exclusionary proviso since it did not prevent him from carrying out his duties in a perfectly satisfactory manner.

It seems to me that we are required to adopt the interpretation offered by the Human Rights Division and to reject the one put forth by the Appellate Division. In the first place, the latter’s approach is not consonant with subdivision 21 of section 292’s legislative history. Secondly, it would seriously undermine the Human Rights Division’s ability to protect our disabled citizens from employment discrimination. And, thirdly, in the light of what the statute was intended to accomplish, I do not believe it accords with reality.

Taking up these matters in reverse order, I start by observing the obvious — that the proviso was to effect a balance between the right of a disabled person to be free from discrimination and the right of an employer to hire only those persons who are "able to engage in the activities involved in the job”. So, had Vissa’s loss of hearing been such as to interfere with his ability to perform his job, the school district would have been justified in removing him. However, the relationship test postulated by the section cannot have been intended to be so general and so permissive that it would all

but invite certain employers to evade the underlying statutory design with impunity, even when, for instance, such employers are motivated by nothing worse than a reluctance to go to the trouble of ascertaining whether what in theory may be a disability interfering with normal work performance in fact has no such effect at all or, by reasonable and simple accommodation, may be overcome completely (cf. Davis v Southeastern Community Coll., 424 F Supp 1341, 1345 [construing 1973 Rehabilitation Act, US Code, tit 29, § 794 et seq.]; Administrative Code of the City of New York, §§ Bl-7.0, Bl-7.1 [City Comm on Human Rights], [exception for bona fide occupational qualifications]).

To the contrary, if the over-all statutory scheme had any purpose at all, it must have been to eliminate the barriers that over and over again have deprived handicapped people of the opportunity to enter the job market on a basis consistent with their true aptitudes. It is understandable that an employer would often be blinded to a handicapped applicant’s worth by the imagined fear that the disability would render him or her less competent or a greater source of liability. Fueled by differences that were confused with disabilities, an indiscriminate broadbrush of exclusion would unnecessarily condemn literally millions of persons to unproductive lives while the Nation itself was the poorer for being deprived of their potential contributions to society (see, generally, Fitch, Vocational Guidance in Action; Anderson, The Disabled Man and His Vocational Adjustment). The immensity of this problem is not to be overestimated. Very pointedly for the present case, in excess of lAVi million Americans suffer from impaired hearing alone, a figure that should not be surprising in a world where few adults are perfect physical specimens (Bruck, Access, The Guide to A Better Life for Disabled Americans, p 151).

Turning now to the legislative history, while it could have been more explicit, the clues that emanate from the Senate bill jacket (S 4524B, L 1974, ch 988) reflect a consistent concern that the competence of disabled individuals not be ignored. In this regard, explanatory communications to the Governor from sponsors of the legislation are most revealing. They disclose an intent completely at odds with the one which the court below has divined. For example, one describes the proviso as protecting the employer’s "justifiable concern for the disabled or handicapped person whose medical condition would prevent him from carrying out his job duties”. Another informs the Governor that the intention of the proviso was merely to permit an employer to take "into account a person’s physical handicap if such handicap made it impossible for a person to perform the job. ” The substance of this thinking was echoed in Governor Malcolm Wilson’s own memorandum of approval, in which he took pains to emphasize that the proviso excepted only hiring practices that took the capacities of "individual” employees into account. Said the Governor, "the intent of this legislation is clear in preserving and promoting * * * practices which emphasize the capacity of the individual and his worth as a prospective employee, by abrogating employment practices which blind an employer to the job applicant’s individual worth because of a disability which is unrelated to his capability to perform the job” (1974 McKinney’s Session Laws of New York, p 2123). (Emphasis mine.)

Furthermore, if, despite all these telltale traces, there were still doubt as to the meaning of the statutory language, on the record here it cannot be said that the interpretation given it by the Human Rights Division, the highly specialized agency charged with its enforcement, was irrational (Matter of Howard v Wyman, 28 NY2d 434, 438; Davis, Administrative Law of the Seventies, § 30.00). Especially is this so, in view of the fact that the legislative bill jacket also contains memoranda from various government agencies indicating the need for specifying procedures for which determinations under the section were to be made; the Governor’s approval of the legislation despite the interpretative problems almost necessarily indicated expected reliance on the enforcing body.

In sum, the Division of Human Rights was warranted in concluding (1) that for a disability to be one "unrelated to the ability to engage in the activities involved in [a] job or occupation” it has to be one based on a demonstrated incapacity of an individual to handle a particular job and (2) that there was even more than substantial evidence that Vissa’s hearing loss did not interfere with his ability to hear anything he needed to have heard in order to drive a school bus.

Order affirmed, etc.

      . Frequency, or pitch, is determined by the speed at which sound is emitted. Such speed is measured in cycles per second ("cps”). The higher the frequency or pitch, the greater the number of cycles per second. The so-called "speech range” runs from 500 through 2,000 cps. The highest note on the standard piano keyboard, when tuned to concert pitch, emits a sound at 4,096 cps. (See Concise Oxford Dictionary of Music, "Acoustics (13)” [2d ed], 1964.)

      . Assuming that, because adopted post hoc, these regulations technically are not part of the record, the division made clear in bringing them to our attention that it regards its order as permitting the school district to retest Vissa thereunder before actually reinstating him.

      . See Department of Civil Service memorandum, dated April 16, 1974; Department of Education memorandum, dated April 19, 1974; Department of Labor memorandum, dated Arpil 26, 1974; Consumer Protection Board memorandum, dated May 1, 1974, relating to S 4524B. All of these are contained in the bill jacket.


text:
    The People of the State of New York, Respondent, v George Burrows, Appellant.
    Argued January 12, 1979;
    decided March 20, 1979
    APPEARANCES OF COUNSEL

      Walter M. Volpi for appellant.

      Lee Clary, District Attorney (Karen F. McGee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the guilty plea vacated, and the case remitted to County Court for further proceedings on the indictment.

Defendant appeals from an order of the Appellate Division which affirmed his conviction upon a plea of guilty to robbery in the third degree and assault in the second degree. The plea was entered following denial by County Court of defendant’s motions to suppress certain identification testimony of the crime victim and also of an eyewitness, and to dismiss the indictment on speedy trial grounds. On appeal to the Appellate Division, defendant argued that his motions should have been granted. That court withheld determination of the appeal, and' remitted the matter to County Court for a new hearing. With respect to the identification testimony, the Appellate Division found that the police had used impermissible identification procedures, and remitted to determine whether there existed a sufficient independent basis for in-court identification testimony by the victim and the witness.

On remittal, County Court found that there did exist a sufficient independent basis to support in-court identification testimony by the witness, but that there did not exist a sufficient independent basis to allow in-court identification testimony by the victim herself. As to the speedy trial question, County Court concluded that defendant had not been deprived of a speedy trial. Upon resubmission to the Appellate Division, that court affirmed defendant’s conviction.

In light of the undisturbed finding by County Court that there did not exist a sufficient independent basis to allow in-court identification testimony by the victim, the motion to suppress should have been granted with respect to identification testimony by the victim. Since we cannot say that defendant’s decision to plead guilty was not influenced by this error, we are in no position to conclude that it was harmless (see People v Grant, 45 NY2d 366, 379-380). Hence, the guilty plea must be vacated.

Turning to defendant’s contention that the courts below should also have suppressed any in-court identification testimony by the witness to the crime on the ground that she lacked an independent recollection, the contrary factual determination by the court below was based on sufficient evidence and is thus beyond the scope of our power to review (see People v Peterson, 40 NY2d 1014, 1015). As to defendant’s speedy trial claim, analysis of the record does not demonstrate that defendant was deprived of a speedy trial.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum; Judge Jasen concurs on constraint of People v Grant (45 NY2d 366).

Order reversed, etc.


text:
    In the Matter of the Claim of Virginia Albrecht, Appellant, v Orange County Community College, Respondent. Workers’ Compensation Board, Respondent.
    Argued February 5, 1979;
    decided March 20, 1979

      APPEARANCES OF COUNSEL

      David Mac Rae Wagner for appellant.

      James C. Harding and Patrick J. Malone for Orange County Community College, respondent.
   OPINION OF THE COURT

Memorandum.

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

As we read the board’s decision we are satisfied that it based its denial of benefits in this case on a failure of proof of accidental causation. The board wrote: "The record contains no medical evidence to support a finding of accidental injury arising out of and in the course of employment.” We interpret that statement in the board’s concise decision as relating only to the issue of causation; the absence, or presence, of "medical evidence” would be irrelevant to any determination as to the scope of employment. Concluding as we do, then, that the board predicated its rejection of the claim on the ground that the claimant had failed to establish accidental causation, we cannot disturb that factual determination unless we can also conclude that it was erroneous as a matter of law. That we cannot do on the record before us.

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

Order affirmed, with costs, in a memorandum.


text:
    Le Cesse Bros. Contracting, Inc., Respondent, v Town Board of the Town of Williamson, Respondent, and Murray Walter, Inc., Appellant.
    Argued February 6, 1979;
    decided March 20, 1979

      APPEARANCES OF COUNSEL

      Rodney A. Richards and Bruce O. Becker for appellant.

      Douglas S. Gates for Le Cesse Bros. Contracting, Inc., respondent.

      Charles J. Dittmar for Town of Williamson, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice Richard D. Simons at the Appellate Division (62 AD2d 28).

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


text:
    The People of the State of New York, Respondent, v Robert J. Wofford, Appellant.
    Argued February 8, 1979;
    decided March 20, 1979

      APPEARANCES OF COUNSEL

      Henry Winestine and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Michael Gore of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In this concededly tragic case, recognizing the very limited scope of appellate review in our court, we cannot conclude that the determination of the suppression court, now affirmed at the Appellate Division, that appellant knowingly and intelligently waived his constitutional preinterrogation rights, was erroneous as a matter of law. Nor can we conclude as a matter of law either that the trial court applied the incorrect standard of criminal responsibility or that appellant’s criminal responsibility was not proved beyond a reasonable doubt, notwithstanding the presence in the record of considerable evidence that appellant may have lacked substantial capacity to know or appreciate the nature and consequences of his conduct and that such conduct was wrong. (Penal Law, § 30.05.)

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

Order affirmed in a memorandum.


text:
    In the Matter of Pernice Edwards, Respondent, v Joseph J. Christian, as Chairman of the New York City Housing Authority, Appellant.
    Argued February 8, 1979;
    decided March 20, 1979

      APPEARANCES OF COUNSEL

      Jeanne Hollingsworth and Donald Schatz for appellant.

      Mark H Spires, Doris E. Mortis and Sam Himmelstein for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (61 AD2d 1045).

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


text:
    In the Matter of the Arbitration between North Colonie Central School District, Appellant, and North Colonie Teachers’ Association, Respondent.
    Argued February 5, 1979;
    decided March 20, 1979

      APPEARANCES OF COUNSEL

      David W. Morris for appellant.

      Richard E. Casagrande and Bernard F. Ashe for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Robert G. Main at the Appellate Division (60 AD2d 496; see, also, Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582).

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


text:
    Beatrice A. Nero, an Infant, by Her Mother and Natural Guardian, Beatrice R. Nero, et al., Appellants, v Ris Paper Co., Inc., et al., Respondents, et al., Defendants. (Action No. 1.) Ronald A. Pelletier, Sr., as Administrator of the Estate of Andrea C. Pelletier, Deceased, Appellant, v Ris Paper Co., Inc., et al., Respondents, et al., Defendants. (Action No. 2.)
    Argued February 6, 1979;
    decided March 20, 1979

      APPEARANCES OF COUNSEL

      Jerome J. Goldstein and Charles F. McGuire for appellants.

      William F. McNulty, Joseph F. Onorato and Anthony J. McNulty for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Myles J. Lane at the Appellate Division (60 AD2d 340).

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


text:
    Millicent Linden, Appellant, v David Fox et al., Respondents.
    Submitted January 29, 1979;
    decided March 20, 1979
   Motion to dismiss plaintiffs appeal as of right from unanimous Appellate Division orders granting defendants’ motions to dismiss, respectively, plaintiffs notice of appeal and amended notice of appeal to the Appellate Division granted and the appeal dismissed, without costs, upon the ground that an appeal does not lie (NY Const, art VI, § 3; CPLR 5601). On the court’s own motion, plaintiffs appeal as of right from Appellate Division orders denying her cross motions to dismiss defendants’ motions dismissed, without costs, upon the ground that an appeal does not lie (NY Const, art VI, § 3; CPLR 5601).

Motion for leave to appeal denied.


text:
    In the Matter of Ruth Halprin et al., Appellants, v New York City Conciliation and Appeals Board et al., Respondents.
    Submitted February 5,1979;
    decided March 20,1979
   Motion to vacate the Court of Appeals order of dismissal dated January 16, 1979 denied, with $20 costs to each respondent. [See 46 NY2d 850.]