text:
    In the Matter of Adam Jay Associates, Appellant, and B & J Realty Co., Respondent, v Board of Assessors of County of Nassau et al., Respondents.
    Decided June 7, 1984

      APPEARANCES OF COUNSEL

      Richard P. Broder for appellant.

      Trade P. Peddy, William D. Siegel and Donald F. Leist-man for B & J Realty Co., respondent.
   OPINION OF THE COURT

Memorandum.

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

At issue in this tax certiorari proceeding is whether appellant (the property owner/mortgagor) or respondent (the assignee of the mortgagee) is entitled to receive the tax refund. We affirm the order below in favor of the assignee of the mortgagee, since the mortgagee, for its own account, had made the actual tax payments under review and had suffered a loss upon sale of the property.

In 1974, appellant defaulted on payments on an apartment building mortgage. The mortgagee, the Department of Housing and Urban Development (HUD), brought a foreclosure action in 1975 in Federal court and secured the appointment of a receiver. The court’s order included a provision that HUD itself pay the property taxes during the pendency of the action, a direction with which it complied, resulting in tax payments by HUD for the years in issue of $1,177,421.28. In January, 1979, the court entered a judgment of foreclosure and the property was sold, leaving a deficiency on the indebtedness, including the taxes paid by HUD, of $1,283,573.96. The mortgage agreement having limited the right of the mortgagee to foreclosure, the mortgagee did not seek a deficiency judgment against appellant. Appellant contends that, although it did not directly make the tax payments, in reality it paid the taxes, since they increased the mortgage indebtedness, and it should therefore receive any tax refund resulting from the certiorari proceeding.

Special Term concluded that since HUD had paid all of the property taxes during the years in issue and since the deficiency exceeded the total taxes paid, respondent, as HUD’s assignee, was entitled to the refund. The Appellate Division affirmed, without opinion, and we agree.

A property tax refund is normally made to the party who paid the tax (People ex rel. Crompton Bldg. Corp. v Sexton, 264 App Div 522; Real Property Tax Law, § 726). Appellant did not make the tax payments directly, or even indirectly through HUD, since HUD acted pursuant to court order, on its own behalf and not as appellant’s agent (see People ex rel. New York Tit. & Mtge. Co. v Miller, 262 App Div 175, affd 287 NY 685; People ex rel. 342 East 57th St. Corp. v Miller, 262 App Div 132, affd 287 NY 682). Finally, appellant did not pay the taxes through forfeiting the property because the sale price of the property did not even cover the mortgage principal and interest, much less the tax advances. Accordingly, respondent is entitled to the refund as the assignee of the party who paid the tax.

Appellant’s remaining contention, that the taxes paid by HUD actually exceed the amounts found by Special Term and therefore any refund would be greater than the deficiency, has no support in the record.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Valentino Gandolfi et al., Respondents-Appellants, v City of Yonkers, Defendant, and County of Westchester, Appellant-Respondent. (Action No. 1.) (And Another Action.)
    Submitted May 21, 1984;
    decided June 7, 1984
   In action No. 1, plaintiffs’ motion for leave to appeal and, on the court’s own motion, appeals taken as of right by plaintiffs and by the defendant City of Yonkers dismissed, without costs, each upon the ground that the ordér of the Appellate Division does not finally determine the action within the meaning of the Constitution. Plaintiffs’ motion for an order directing disposition of tax receipts pending determination of the appeals denied.


text:
    Abraham Ten Hoeve, Respondent, v Board of Education of Dundee Central School District et al., Appellants.
    Submitted March 12, 1984;
    decided June 7, 1984
   Motions by defendants for leave to appeal granted. Motion by plaintiff for leave to cross-appeal dismissed upon the ground that plaintiff is not aggrieved by the determination at the Appellate Division (CPLR 5511).


text:
    Elsie Lasini, Appellant, v Paul Lasini, Respondent.
    Submitted May 21, 1984;
    decided June 7, 1984
   On the court’s own motion, appeal transferred, without costs, to the Appellate Division, Second Department. The direct appeal does not lie because no substantial constitutional question is involved. Motion to preclude the Attorney-General from participation on the appeal to this court dismissed as academic.


text:
    Helen Scheuer, Individually and as Executrix of Ellsworth Scheuer, Deceased, Appellant, v John D. Malfa et al., Respondents.
    Submitted April 23, 1984;
    decided June 7, 1984
   Motion, insofar as leave to appeal is sought as against defendant Mercy Hospital, denied. Motion, insofar as leave to appeal is sought as against defendant Malfa, dismissed upon the ground that, as to said defendant, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Barbara M. Sims, as Judge of the Buffalo City Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted May 14, 1984;
    decided June 7, 1984
   Motion for reargument denied. [See 61 NY2d 349.] Motion to disqualify a Judge of this court dismissed upon the ground that the court has no jurisdiction to entertain the motion made on nonstatutory grounds. That application was referred to the Judge, and he denied it with the following decision: “Motion denied (see Matter of Waltemade, 37 NY2d [ll])”


text:
    United Commodities — Greece, Plaintiff, v Fidelity International Bank et al., Defendants; Pillsbury Company, Appellant, and Trade Development Bank (France), Respondent.
    Submitted April 30, 1984;
    decided June 7, 1984
   Motion for leave to appeal denied as unnecessary (see Dalrymple v Shults Chevrolet, 39 NY2d 795).


text:
    Jean D. Rolfe, Appellant, v Village of Falconer, Respondent.
    Argued May 12, 1984;
    decided June 12, 1984

      APPEARANCES OF COUNSEL

      Howard F. Crossley for appellant.

      James J. Duggan for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff seeks to recover damages for the loss of asbestos shingles that were allegedly stolen by one Kenneth Lanan-ger, who had received from defendant a building permit to remodel and enlarge two porches and an entrance on plaintiff’s building. In obtaining the permit, Lananger represented himself to be the building’s owner.

Plaintiff’s action cannot succeed. The purpose of the building permit is to ensure compliance with the pertinent construction laws. Nothing in the ordinances indicates that they are intended to protect owners against unauthorized modifications to their buildings or, indeed, theft of their building materials. That the application form refers to the applicant as “Owner” does not thereby impose such a duty of protection on the municipality. Consequently, defendant had no obligation to ascertain whether Lananger was truly the owner of plaintiff’s building when he applied for the building permit. In the absence of even an implicit assumption by the municipality of a duty to verify ownership, the burden of protecting against unauthorized alterations leading to the theft of materials may not be imposed on the Village.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    Fay’s Drug Company, Inc., Respondent, v Geneva Plaza Associates, Appellant.
    Argued May 9, 1984;
    decided June 12, 1984

      APPEARANCES OF COUNSEL

      Joseph A. Giorgi for appellant.

      Gary M. Glassman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (98 AD2d 978).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Linda Fleishman, Appellant, v Eli Lilly and Company et al., Respondents. Carolyn Manno et al., Appellants, v Gerard Levi et al., Respondents.
    Argued May 10, 1984;
    decided June 12, 1984

      APPEARANCES OF COUNSEL

      Alfred S. Julien and William D. Fireman for Linda Fleishman, appellant.

      Harvey W. Spizz for Carol Manno and another, appellants.

      R ussell H. Beatie, Jr., Sanford N. Berland and Babette L. for Eli Lilly and Company, respondent.

      Charles M. McCaghey, Terrence J. O’Rourke and Grace M. Healy for E. R. Squibb & Sons, Inc., respondent.

      Robert J. Woody and Thomas C. Rice for Winthrop Laboratories, respondent.

      Nancy Ledy Gurren, John J. Bower and Leah G. Kaplan for The Upjohn Company, respondent.

      Kenneth Mauro for Gerard Levi, respondent.
   OPINION OF THE COURT

Memorandum.

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

There is no showing in the record in either case of sufficient legal significance to warrant departure from our prior decisions. (Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, remittitur amd 55 NY2d 802, app dsmd cert den 456 US 967; Thornton v Roosevelt Hosp., 47 NY2d 780; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, remittitur amd 12 NY2d 1073, cert den 374 US 808; Schmidt v Merchants Desp. Transp. Co., 270 NY 287, rearg den 271 NY 531.) We most recently reaffirmed our adherence to these decisions in Martin v Edwards Labs. (60 NY2d 417, 425-426). Any departure from the policies underlying these well-established precedents is a matter for the Legislature and not the courts.

Chief Judge Cooke (dissenting). Admittedly, the injuries in this case are essentially no different than the injuries suffered because of the delayed or slow action of inhaled asbestos (Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, app dsmd 456 US 967; Schmidt v Merchants Desp. Transp. Co., 270 NY 287), or cancer-causing drug injections (Thornton v Roosevelt Hosp., 47 NY2d 780; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, cert den 374 US 808). But, because I believe that the reliance on past precedent is no longer justified, I respectfully dissent.

It appears that the primary proffered rationale for continuing the rule that the causes of action accrue in the present cases upon contact with the cancer-causing agent is the doctrine of stare decisis. If this were a completely inflexible rule, I would acquiesce in the continuance of the result first enunciated in 1936 in Schmidt v Merchants Desp. Transp. Co. (supra). However, the law is not and should not be so inflexible that it cannot correct itself from injustice and unfounded concerns espoused in prior decisions (see Woods v Lancet, 303 NY 349, 354-355). True, precedent is not to be abandoned lightly or without compelling circumstances, for it serves an important purpose of maintaining stability in the law (see Cenven, Inc. v Bethle hem Steel Corp., 41 NY2d 842, 843; Heyert v Orange & Rockland Utilities, 17 NY2d 352, 360; Sprecher, 31 ABAJ 501) and “it would be foolhardy not to recognize that there is potential for jurisprudential scandal in a court which decides one way one day and another way the next” (People v Hobson, 39 NY2d 479, 488). On the other hand, the doctrine should not be used as a shield behind which a court may hide as reason for perpetuating unnecessary and profound unfairness, which subjects the law to ridicule. “Tort cases, but especially personal injury cases, offer another example where courts will, if necessary, more readily re-examine established precedent to achieve the ends of justice in a more modern context (see, e.g., Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Goldberg v Kollsman Instrument Corp., 12 NY2d 432; Bing v Thunig, 2 NY2d 656; Woods v Lancet, 303 NY 349). Significantly, in these cases the line of precedent, although well established, was found to be analytically unacceptable, and, more important, out of step with the times and the reasonable expectations of members of society.” (People v Hobson, 39 NY2d 479, 489, supra.)

A grave injustice — to victims of DES as well as to past and future victims of identified and unidentified substances which do not immediately make known their harmful effect upon the body but have a “time-bomb” effect — is worked by the current rule of law which requires negligence and products liability causes of action to be brought before a plaintiff could reasonably know of their existence and very likely before any medically cognizable injury has occurred. It is time to abandon that inequitable rule as a mistake of the past that we have a duty to correct (see Woods v Lancet, 303 NY 349, 354-355, supra). The current rule is unreasonable and the Statute of Limitations should not be construed in such a manner (see Urie v Thompson, 337 US 163, 168-171; Thornton v Roosevelt Hosp., 47 NY2d 780, 783-785, supra [Fuchsberg, J., dissenting]; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 219-220, supra [Desmond, Ch. J., dissenting]; Heath v Sears, Roebuck & Co., 123 NH 512, 524).

It is not persuasive to say that any change is better left to the Legislature. That the determination of when a cause of action accrues is not solely a matter for the Legislature, is plainly evident by this court’s determination here and previously, that a cause of action of this type accrues upon injury which is assumed to occur at the time of exposure, ingestion or injection of the cancer-causing foreign substance (see, e.g., Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, supra; Schmidt v Merchants Desp. Transp. Co., 270 NY 287, supra). Indeed, when this court acted to change the common law by adopting a date-of-discovery rule for the commencement of foreign-object medical malpractice cases, it stated: “Our decision does not encroach upon any legislative prerogatives. The Legislature did not provide that the Statute of Limitations should run from the time of the medical malpractice. This court did. Therefore, a determination that the time of accrual is the time of discovery is no more judicial legislation than was the original determination. Granted, the Legislature could have acted to change our rule; however, we would surrender our own function if we were to refuse to deliberate upon unsatisfactory court-made rules simply because a period of time has elapsed and the Legislature has not seen fit to act.” (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 434; see Woods v Lancet, 303 NY 349, 354-356, supra).

As recently stated by this court: “When limitations begin to run ‘depends on a nice balancing of policy considerations’ (Victorson v Bock Laundry Mach. Co., 37 NY2d, supra, at p 403) reflecting the manufacturer’s interest in defending a claim before his ability to do so has deteriorated through passage of time, on the one hand, and, on the other, the injured person’s interest in not being deprived of his claim before he has had a reasonable chance to assert it (id.; Caffaro v Trayna, 35 NY2d 245, 250-252; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429-431).” (Martin v Edwards Labs., 60 NY2d 417, 425.) Here, the balance of policy considerations weighs heavily in favor of plaintiffs and indicates that a discovery rule or, at the very least, a true date of medical-injury rule should be adopted for the accrual of the causes of action.

A Statute of Limitations serves in part to prevent plaintiffs from sleeping on their rights or waiting to assert stale claims and to ensure that defendants will receive notice of claims as soon as practicable (see Urie v Thompson, 337 US 163, 170, supra). In these cases, the plaintiffs cannot be said to have purposefully or unreasonably waited to bring suit because no injuries were known by them to occur at the time of their ingestion of or exposure to DES (see Raymond v Lilly & Co., 117 NH 164, 170).

As to the deterioration of the ability to defend, this situation is functionally equivalent to defective products that are implanted without assimilation. In the latter situation, “the age of the claim and consequent problems of proof disadvantaged not only the manufacturer but also the plaintiff who to succeed had to prove that the defect existed at the time it left the manufacturer’s plant” (Martin v Edwards Labs., 60 NY2d 417, 427, supra). Indeed, in DES cases, because of the long passage of time until a suit is brought, the plaintiff will be severely disadvantaged in trying to determine which drug company manufactured the product, and the availability of other theories of recovery has not yet been expressly determined (see Bichler v Lilly & Co., 55 NY2d 571). Further, the fact that the product has assimilated into the body does not debilitate the defense, because the nature of the claim is not that the product “broke” but that its known and undisputed chemical composition at the time of ingestion was defective. Thus, examination of the actual product here, unlike a defective implanted product, is not crucial to the defense. Finally, prior DES cases have shown that much of the original testing information has been preserved by the chemical manufacturers (see Bichler v Lilly & Co., 55 NY2d 571, supra).

Neither does credibility, nor the danger of feigned claims play a significant or greater role in DES cases than implant cases because it is quite impossible to feign the medically certifiable presence of cancer. In addition, similar to the implant cases, the fact that “complicated medical questions may be involved and professional diagnostic judgment implicated” (Martin v Edwards Labs., 60 NY2d, at p 427) does not require a date-of-ingestion rule, just as such considerations did not require a date-of-insertion rule in the implant cases, because the medical issues “normally will concern only recent events rather than the remote implantation” (id.).

The function of the Statute of Limitations as a “device for repose,” relied upon initially in Schwartz v Heyden Newport Chem. Corp. (12 NY2d 212, 218, supra), should not now be deemed to outweigh the plaintiff’s equities. In Schwartz, the balance in favor of repose rested upon the presumptions that only “the interests of an occasional claimant were subordinate to society’s interest in repose”; and that only in fraud actions “were there a sufficient number of unknown wrongs to justify a departure from the general rule” as compared to “the rarity of such unfortunate cases in other types of actions” (id. [emphasis added]). It is now all too clear that long-delayed injuries resulting from ingestion of toxic drugs are no longer a “rarity.”

These cases present a compelling argument for adopting a discovery rule. The plaintiff may not know of the exposure to DES or other potentially harmful pharmaceuticals, which presents a situation similar to the foreign-object medical malpractice cases where a discovery rule is utilized (see CPLR 214-a), or that such exposure may be harmful. With an implanted device, it is far more likely that the plaintiff will discover injury caused by a product failure within the Statute of Limitations, but with ingested medications, the plaintiff will often not learn of or suspect any injury until the cancer begins to manifest itself, which may be years after the present limitation period or even after the cancer cells began to form. This is especially true, when the drug was a teratogen and the plaintiff was in útero.

In sum, given the relatively equal deterioration in the ability to defend and prosecute, these types of “time-bomb” drug cases, and the strong societal interest in not depriving an injured person of his or her claim before it can reasonably be asserted, a discovery rule should be adopted in these cases. At the very least, adherence to the medical-date-of-injury rule, recently adopted in Martin v Edwards Labs. (60 NY2d 417, supra), should be continued in these types of cases. In Martin, the “delayed” injuries were suffered from a defective intrauterine device, where the product itself did not malfunction but permitted bacteria to invade the uterus from the date of its insertion. This court held that plaintiff’s time to sue did not begin to run until a pelvic infection began. No rational distinction can be drawn between that case and the present, where no medically cognizable injury may occur until sometime after the prescribed medication was taken.

For all these reasons, the order of the Appellate Division should be reversed, and plaintiffs’ complaints reinstated.

Judges Jasen, Jones, Wachtler and Simons concur; Chief Judge Cooke dissents and votes to reverse in an opinion; Judges Meyer and Kaye taking no part.

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


text:
    Dawn Frosted Meats, Inc., Appellant, v Insurance Company of North America, Respondent.
    Decided June 12, 1984

      APPEARANCES OF COUNSEL

      Edward P. Dunphy, Morris J. Eisen and Joseph P. Na-poli for appellant.

      Joseph D. Ahearn for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (99 AD2d 448).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Carl Bergamini, Respondent, v Manhattan and Bronx Surface Transit Operating Authority, Appellant, et al., Respondent.
    Argued March 26, 1984;
    decided June 12, 1984

      APPEARANCES OF COUNSEL

      Steve S. Efron, Richard K. Bernard and Carla Lowen-heim for appellant.

      Eugene M. Kaufman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the certified question answered in the negative.

As we have held in Collins v Manhattan & Bronx Surface Tr. Operating Auth. (62 NY2d 361), MABSTOA is not required by section 6 of article V of the Constitution to make appointments and promotions on the basis of merit and fitness. Moreover, section 1203-a (subd 3, par [b]) of the Public Authorities Law expressly provides that employees of MABSTOA “shall not acquire civil service status”. Employment by MABSTOA may, therefore, be terminated at any time, without a hearing and without reasons being stated, unless doing so would be violative of some other provision of the Constitution, a statute other than the Civil Service Law, or the provisions of a collective bargaining agreement or of an individual contract between the Authority and the employee (Matter of Stanziale v Executive Dept., 55 NY2d 735, 737; Matter of Holbrook v State Ins. Fund, 54 NY2d 892, 894; Matter of Hopkins v Lefkowitz, 48 NY2d 901; Matter of Anonymous v Codd, 40 NY2d 860; Matter of Talamo v Murphy, 38 NY2d 637, 639; James v Board of Educ., 37 NY2d 891, 892). It is, moreover, the burden of the employee to establish that termination of his employment violated such a constitutional, statutory or contractual provision (Matter Board of Educ., 34 NY2d 318, 323; Haberman v Codd, 48 AD2d 505, 508).

Petitioner argues that his termination violated his constitutional rights of due process and free speech and constituted a “stigma” entitling him to a hearing. He suggests further that his right to a hearing is implicit in MABSTOA’s employment procedures. No issue of free speech or of stigma is pleaded in the petition, nor with respect to stigma has petitioner pleaded that there was public disclosure constituting “dissemination” (Matter of Lentlie v Egan, 61 NY2d 874). Moreover, his petition does not set forth any procedures of MABSTOA from which can be implied a limitation on its right to terminate its employees at will (cf. Weiner v McGraw-Hill, Inc., 57 NY2d 458; Parker v Borock, 5 NY2d 156). It follows that the right of MABSTOA to terminate petitioner’s employment at will remains unimpaired (Murphy v American Home Prods. Corp., 58 NY2d 293, 305) and that the Authority’s cross motion to dismiss the petition should, therefore, have been granted.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order reversed, with costs, petition dismissed as against appellant Manhattan and Bronx Surface Transit Operating Authority and question certified answered in the negative in a memorandum.


text:
    Lai Chun Chan Jin et al., Appellants, v Board of Estimate of the City of New York et al., Respondents.
    Argued May 2, 1984;
    decided June 12, 1984

      APPEARANCES OF COUNSEL

      Roger K. Evans, Rose Ann Magaldi, Norman Siegel and Joyce Moy for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Michael Gage and Leonard Koerner of counsel), for respondents.

      Jack John Olivero and Robert L. Becker for Puerto Rican Legal Defense and Education Fund, amicus curiae.

      Margaret Fung and Stanley Mark for Asian American Legal Defense and Education Fund, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division insofar as appealed from should be affirmed, with costs (see 92 AD2d 218).

Petitioners seek in this article 78 proceeding to annul revisions to the zoning resolution and zoning map of the City of New York which established a new Special Manhattan Bridge District and also to annul and vacate a special permit granted to Overseas Chinese Development Corporation (OCD) to construct a condominium in the new district. They allege that the revisions and the permit are void because respondents provided insufficient notice of the hearings before the Community Board and the City Planning Commission (CPC) prior to amendment of the zoning ordinance and the map. Specifically, they challenge sections 4.030 and 6.050 of the Uniform Land Use Review Procedure (ULURP) and contend that those sections violate the intent of section 197-c of the New York City Charter. The special permit granted OCD has now been withdrawn and the parties agree that the issue is not before us.

Section 197-c, the Uniform Land Use Review Procedure (ULURP), became a part of the New York City Charter by referendum of the city voters on November 4,1975. Pursuant to its provisions zoning changes are preceded by public hearings, before the appropriate community board, before the CPC and before the Board of Estimate (City Charter, § 197-c, subds c, e, f). Subdivision c of section 197-c provides that before acting “[e]ach such community board shall * * * (1) notify the public of the proposal or application in a manner specified by city planning commission”, conduct a public hearing and prepare and submit a written recommendation to the City Planning Commission. The City Planning Commission has provided in section 4.030 of the ULURP guidelines that notice of a public hearing before a community board shall be given by publication in the City Record and the Comprehensive City Planning Calendar. Section 6.050 provides that similar notices should precede public hearings before the CPC. Notices of public hearing were given as provided but petitioners challenge them as inadequate and contrary to the mandate of the City Charter.

The general rule is that a public notice which complies with the provisions of the statute will be upheld even though arguably a better method could be devised. If the statute is silent on the method of notice, provisions which implement a broad mandate, such as that of section 197-c, will be upheld if notice is “given in any form that is reasonably adapted to inform the public generally that the application will be heard” (Ottinger v Arenal Realty Co., 257 NY 371, 377). As the court below found, the publication provided for by the supplementing provisions of ULURP meets this standard of reasonableness.

Petitioners also contend on this appeal that the zoning amendment is void because the Special Manhattan Bridge District was not adopted in conformance with a well-considered plan and they seek an evidentiary hearing to prove their contention. There is nothing in the record to establish that petitioners sought such relief in their petition or requested a hearing at Special Term, however, and they have thereby waived any right they may have had to a hearing (see Telaro v Telaro, 25 NY2d 433). Moreover, the Manhattan Bridge Area Study, published by the City Planning Commission in 1979 and included in the record on this appeal, reveals that the proposed revision and the effect it would have upon the health, safety and welfare of the affected community was considered before its adoption and that study fulfilled the requirement that the revision be adopted pursuant to a well-considered plan (see Albright v Town of Manlius, 28 NY2d 108; Udell v Haas, 21 NY2d 463). In view of this evidence and the strong presumption of validity which attaches to a municipality’s exercise of its zoning powers (Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61), denial by the Appellate Division of petitioners’ request for a hearing on the issue was not an abuse of discretion as a matter of law.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order, insofar as appealed from, affirmed, with costs, in a memorandum.


text:
    Industrial Equipment Credit Corporation, Respondent, v Bernard Green et al., Appellants.
    Argued May 8, 1984;
    decided June 12, 1984

      APPEARANCES OF COUNSEL

      J. Irwin Shapiro, Joseph A. Suozzi, Kenneth L. Gartner and Daniel M. Kolko for appellants.

      Hal B. Patterson and Sylvain R. Jakabovics for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and order of the Appellate Division brought up for review should be affirmed, with costs.

Defendants are guarantors on a note given to plaintiff’s predecessor to secure an equipment lease for the acquisition of theatre equipment. The lease was for the term of 60 months and required an advance payment of $3,366 and monthly payments of $967.73. Defendants guaranteed due payment and performance by the lessee and their guarantee provided that the liability of the guarantors was direct and unconditional and could be enforced by the creditor without first resorting to any other right, remedy or security.

The lessee made nine required lease payments to plaintiff through February 1973, and then defaulted. Following the default, plaintiff and the defendants made unsuccessful efforts to find a possible buyer for the equipment. In October 1973, plaintiff made a formal declaration of the lessee’s default and notified defendants that on or after November 12, 1973, it would “make a private sale of the collateral * * * to Mi-Ann Theatre of Coram Corp., for $42,000, payable in 42 monthly installments of $1,000.00 each.” The letter extended to defendants “the privilege of redeeming the said collateral and reinstating the said Agreement by payment of $8,709.57 (the amount of the arrears) any time prior to the sale of said collateral”. The proposed sale to Mi-Ann did not materialize, nor was a formal contract ever signed, and further efforts made by plaintiff to find a buyer were similarly unsuccessful. The evidence establishes that the defendant Green knew that the Mi-Ann deal had not been consummated, but no formal notification thereof was given to the defendants until May 1974, when plaintiff wrote to advise that the Mi-Ann deal had fallen through and that plaintiff would seek full payment of the lease balance from defendant guarantors. This action was commenced to recover the unpaid balance, with interest and attorney’s fees.

Defendants’ principal claim is that plaintiff’s conduct amounted to a repossession as defined by section 9-503 of the Uniform Commercial Code because plaintiff exercised dominion and control over the collateral by offering it for sale to Mi-Ann. They contend that because of the nature of the equipment physical possession was not necessary for repossession (see Crowe v Liquid Carbonic Co., 208 NY 396; Uniform Commercial Code, § 9-503, Comment, McKinney’s Cons Laws of NY, Book 62½, p 604) and that having taken constructive possession of this collateral plaintiff’s recovery is limited to that security. They base their claim of constructive possession on evidence that (1) the creditor intended to take possession of the theatre seats unilaterally, without the assistance of the debtor or guarantors, negotiating the terms and conditions of sale to Mi-Ann, (2) after scheduling the private sale, plaintiff gave defendants a notice to redeem, a necessary precondition to a deficiency judgment (see Uniform Commercial Code, § 9-504, subd [3]; § 9-506), (3) plaintiff received, and on its own rejected, an offer to purchase, (4) plaintiff retained the collateral over two years before instituting this action and (5) after the commencement of this action plaintiff commenced a conversion action against the landlord and tenant.

Under the statute (Uniform Commercial Code, § 9-503), a creditor may take possession of collateral either by removing it or by rendering it unusable or disposing of it on the debtor’s premises. As the courts below found, plaintiff did neither. The security remained on the premises and was used by the debtor continuously. The notice of sale offered defendants an opportunity to protect their interests but no sale ever took place, to their knowledge, and plaintiffs did not interfere with the use of the property in any way. Nor was there a constructive repossession. The mere sending of the notice did not interfere with the debtor’s use or possession. Nor did the conversion action commenced against third parties after this action constitute the exercise of dominion and control over the collateral. Plaintiff did not interfere with the collateral and it was not required to claim possession to maintain the action, only a security interest in the property which it concededly had. The decision in Crowe v Liquid Carbonic Co. (208 NY 396, supra), based upon the statutory predecessors to the Uniform Commercial Code, is distinguishable. In Crowe the creditor leased the collateral to a third party, appropriated the rent to itself and failed to credit the sums received to the conditional sales contract. Plaintiff did none of these things.

Inasmuch as plaintiff made no election to retain the collateral in satisfaction of the debt, it was entitled to recover the whole amount due on the guarantee from defendants (cf. Flickinger Co. v 18 Genesee Corp., 71 AD2d 382).

The Appellate Division properly directed inclusion of attorney’s fees in the judgment after a hearing. Our decisions do not require that the fees be paid before recovery may be had, only that the value of the services be established before inclusion in the judgment (see Matter of First Nat. Bank v Brower, 42 NY2d 471, 473).

We have considered defendant’s remaining points insofar as they were preserved for our review and find them without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Simons and Kaye concur; Judge Meyer taking no part.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


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    Geraldine Zikely, an Infant, et al., Appellants, v Magdalena Zikely, Respondent.
    Decided June 12, 1984

      APPEARANCES OF COUNSEL

      Michael N. Dorfman for appellants.

      Thomas E. Paterson for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (98 AD2d 815).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


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    The People of the State of New York, Respondent, v Armet Coles, Appellant.
    Argued May 4, 1984;
    decided June 12, 1984

      APPEARANCES OF COUNSEL

      Claude Castro for appellant.

      William L. Murphy, District Attorney CKaren F. McGee and Paul J. Angioletti of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division should have set aside the plea once it found that the trial court had erred in denying the defendant’s motion to suppress with respect to his second statement. Although the erroneous admission of such a statement may constitute harmless error in the context of a trial (People v Schaeffer, 56 NY2d 448) it cannot be said to be harmless on this record in light of the defendant’s plea of guilty.

This case is essentially indistinguishable from our decision in People v Purdy (53 NY2d 806). There the statements which should have been suppressed constituted nothing more than an express acknowledgement and reaffirmation of the defendant’s prior statements which were held to be admissible. Nevertheless we held that the trial court’s error in failing to suppress the subsequent statements could not be deemed to be harmless in light of the defendant’s plea of guilty. Here the defendant’s second statement is more incriminating. The defendant did not only reconfirm his involvement in the crime but he also provided the police with additional information, and potential leads, by identifying one of the other participants in the crime.

As we noted in People v Grant (45 NY2d 366) harmless error rules were designed to review trial verdicts and are difficult to apply to guilty pleas (see, e.g., People v Burrows, 46 NY2d 957; People v Harris, 48 NY2d 208). The primary difficulty is to determine the effect the erroneous denial of the motion had upon the defendant’s decision to plead guilty. Although the People contend that the denial of the motion with respect to his second confession did not influence the defendant’s decision to plead guilty, they obtained no such concession from the defendant at the time of the plea nor did they negotiate a waiver of the defendant’s right to appeal with respect to that portion of the order denying his motion to suppress the second confession (cf. People v Williams, 36 NY2d 829). On such a record, any attempt to gauge the effect of the erroneous denial of this portion of the suppression motion upon the defendant’s decision to plead guilty would be speculative.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur; Judge Jasen dissents and votes to affirm for the reasons stated in the opinion by Justice Vincent D. Damiani at the Appellate Division (89 AD2d 471).

Order reversed, plea vacated and case remitted to Supreme Court, Richmond County, for further proceedings on the indictment in a memorandum.


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    The People of the State of New York, Respondent, v Craig Kinnard, Appellant.
    Decided June 12, 1984

      APPEARANCES OF COUNSEL

      Dennis A. First for appellant.

      Sol Greenberg, District Attorney, for respondent, precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Appellant was arrested for rape, taken to the precinct, and given Miranda warnings. He said he understood his rights but did not wish to talk with the police officers. The officers nonetheless questioned him about the crime but elicited no incriminating responses. When the officers completed their interrogation, they escorted him from the interview room and commenced the booking procedure. During this process, appellant suddenly said that he wanted to make a statement. The officers then completed booking him, took him to another interview room, administered Miranda warnings again, and took his statement.

When a suspect exercises his right to remain silent, the police must scrupulously honor that decision and questioning must cease (Michigan v Mosley, 423 US 96; People v Wander, 47 NY2d 724). The police violated that obligation here. But a suspect, even after exercising his right to remain silent, may change his mind and voluntarily make a statement (People v Buxton, 44 NY2d 33, 37). Given the pronounced break in the interrogation, the commencement of the booking process, the absence of any incriminating responses to the police questioning, and appellant’s subsequent unprompted decision to make a statement, we cannot say that the courts below erred as a matter of law in concluding that the initial unlawful questioning did not taint the spontaneity of the later confession.

For the reasons stated in the Appellate Division’s memorandum, the trial court committed no error in refusing to submit attempted rape as a lesser included offense. Appellant’s remaining contentions are meritless.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


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    Consolidated Edison Company of New York, Inc., et al., Appellants, v Public Service Commission, Respondent.
    Decided June 12, 1984
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department. A direct appeal does not lie where it does not involve a statutory provision (NY Const, art VI, § 3, subd b, par [2]; CPLR 5601, subd [b], par 2).


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    Carol Groth, Respondent, v William J. Bologna, Appellant.
    Decided June 12, 1984
   Appeal from Appellate Division order dated November 17, 1983 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.

Appeal from Appellate Division order dated March 1, 1984 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


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    Antoinette Itzkoff, Appellant, v Norman Itzkoff, Respondent.
    Submitted May 14, 1984;
    decided June 12, 1984
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 38, pp 155-157).


text:
    Cathleen P., Individually and as Natural Mother and Guardian of Nicholas P., Appellant, v Gary P., Respondent.
    Submitted June 4, 1984;
    decided June 12, 1984
   Motion to dismiss the appeal denied.


text:
    The People of the State of New York, Appellant, v Gregory Saunders and Donald Linton, Respondents.
    Submitted May 21, 1984;
    decided June 12, 1984
   Motion to vacate the Court of Appeals order of dismissal, dated April 30, 1984, granted and the appeal restored to the calendar. [See 62 NY2d 646.] Since appellant’s papers on appeal have already been filed, the respondents’ 45-day filing period (Rules of Practice of Court of Appeals, § 500.7 [a] [22 NYCRR 500.7 (a)]) is deemed to commence on the date of this order.


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    William A. Schmitt, as Trustee of Charles L. Tellerday, Bankrupt, Respondent-Appellant, and Charles L. Tellerday et al., Plaintiffs, v George B. Morgan, Respondent, and Cyrus B. Adler et al., Appellants-Respondents.
    Decided June 12, 1984
   Appeal by defendants Cyrus B. Adler and Nancy Adler dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Cross appeal by plaintiff Schmitt dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that he is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]) and upon the further ground that the order of the Appellate Division appealed from does not finally determine the action within the meaning of the Constitution.


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    Barbara F. Spindel, Also Known as B. R. Fox, Appellant, v New York Telephone Company et al., Respondents.
    Decided June 12, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not a party aggrieved by the order of the Appellate Division brought up for review (CPLR 5511; Cohen and Karger, Powers of the New York Court of Appeals, § 91, pp 393, 394).


text:
    Submitted May 21, 1984;
    decided June 12, 1984

      APPEARANCES OF COUNSEL

      John H. Owen for appellants.

      Colin E. Ingham, District Attorney (William J. Gibbons of counsel), for respondent.
   OPINION OF THE COURT

Motion for leave to appeal dismissed as untimely.


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    Newin Corporation et al., Appellants, v Hartford Accident and Indemnity Company et al., Respondents, et al., Defendants.
    Argued May 2, 1984;
    decided June 14, 1984

      APPEARANCES OF COUNSEL

      Charles L. Stewart, Anthony A. Dean, Craig P. Murphy and James E. Patterson for appellants.

      WilliamP. Sullivan, Jr., Alfred J. Morgan, Jr., and Peter I. Broeman for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the motion for partial summary judgment by defendants Hartford Accident & Indemnity Co. and the Insurance Company of North America denied.

This action arises out of the “Salad-oil Swindle” of 1963, which caused the collapse of Allied Crude Vegetable Oil Refining Corp., and forced Ira Haupt & Co., a member of the New York Stock Exchange, into liquidation as a result of fraudulent trading in salad oil. Plaintiffs, New York Stock Exchange, Inc., and its wholly owned subsidiary, Newin Corporation, allegedly advanced $9.5 million, for the benefit of Haupt’s customers who sustained losses when Haupt went bankrupt. Plaintiffs now seek to recover this amount from defendants Hartford Accident and Indemnity Company and the Insurance Company of North America under certain insurance “bonds” issued by them.

The issue before this court is whether defendants Hartford and INA were properly, granted partial summary judgment dismissing plaintiffs’ causes of action to recover under two bonds issued to Newin Corporation.

In compliance with the Exchange’s rules, Haupt purchased from a subsidiary of defendant Continental Insurance Company (who is not a party to this appeal), fidelity bonds in the face amounts of $14,000,000 and $2,000,000 to protect its customers from losses caused by the fraudulent acts of its partners and employees. The defendants Hartford and Continental issued an “excess” bond (Newin Bond I) for $5 million to Newin Corporation to cover losses that plaintiffs might sustain by reason of payments to customers of any member firm, such as Haupt, which went into bankruptcy. Defendant INA also issued a second $5 million bond (Newin Bond II) which provided similar coverage but was allegedly in “excess” of Newin Bond I.

The Newin Bonds provided for recovery of losses which exceeded “all insurance recovered or recoverable under the Stockbrokers’ Blanket Bond [Haupt’s employee bond] and/ or Stockbrokers’ Partnership Bond [Haupt’s partnership bond] or equivalent insurance carried by such Member Organization available to cover such loss or losses”. Hartford and INA contend that they are entitled to summary judgment on the ground that this “deductible” clause represents a “standard” excess clause, meaning that plaintiffs could not recover on the Newin Bonds until the face amount of the primary coverage of Haupt’s own fidelity bonds was exhausted, which concededly did not occur. Plaintiffs submitted affidavits by persons who had participated in the negotiation and drafting of the Newin Bonds, asserting that the phrase “available to cover such loss” was inserted at plaintiff’s insistence and was intended to mean actually available from Haupt’s bonds to cover plaintiffs’ losses. Thus, they assert that the clause is not a “standard” excess deductible because it permits recovery after funds were no longer available from Haupt to reimburse them for their losses, notwithstanding that the face value of Haupt’s own bonds were not exhausted.

While the rights and obligations of parties under insurance contracts should be determined by the specific language of the policies (see Continental Cas. Co. v Equitable Life Assur. Soc., 52 NY2d 228, 233; New York Dock Co. v Brown, Inc., 272 NY 176, 180), if the language of the policy is susceptible of two reasonable meanings, the parties may submit extrinsic evidence of their intent at the time of contracting (see Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169, 172; Concoff v Occidental Life Ins. Co., 4 NY2d 630, 637). Plaintiffs demonstrated, at the very least, that the deductible clause was ambiguous. Thus, a material question of fact as to the parties’ intent was presented by the plaintiffs’ affidavits. Defendants’ motions, therefore, should have been denied (see Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441).

Defendants’ other arguments have been considered and found to be without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

Order reversed, etc.


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    Extaza of 34th Street, Respondent, v City Stores Co., Inc., Appellant.
    Argued May 8, 1984;
    decided June 14, 1984

      APPEARANCES OF COUNSEL

      Francis J. Donovan and Gerard V. Stapleton for appellant.

      Roger Bruce Feinman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the defendant’s motion for summary judgment dismissing the complaint granted. The certified question is answered in the negative.

Although nominally an action by the tenant against its landlord to recover for water damage, the papers make clear that the real party in interest is Insurance Company of the State of Pennsylvania (State Insurance), the tenant’s insurer, which seeks to assert the tenant’s rights by way of subrogation (see CPLR 1004). The lease required the tenant to carry fire and extended coverage insurance and to pay the cost of such insurance and provided that “Landlord shall be named as additional insured in said policies of insurance and said policies shall contain waivers of subro-gation against Landlord.”

The subrogation clause of the State Insurance policy issued to tenant provided that “any release from liability entered into in writing by the insured prior to loss hereunder shall not affect this policy or the right of the insured to recover hereunder.” Construed in the light of the subrogation rights otherwise reserved to State Insurance in the same policy provision, the quoted language can only be construed as a waiver by State Insurance of subrogation rights against any person to whom its insured had given a release in writing prior to loss, for otherwise the insured by giving such a release would, by cutting off the insurer’s subrogation rights, have adversely affected its right to recover under the policy (Commerce & Ind. Ins. Co. v Orth, 254 Ore 226; see Insurance Co. of North Amer. v Universal Mtge. Corp., 82 Wis 2d 170).

State Insurance having waived its right to subrogation against the landlord, to whom tenant by entering into the lease had given a prior written release (the insurance clause of the lease, quoted above), has no cause of action in subrogation. It is, therefore, unnecessary to consider the effect of section 5-321 of the General Obligations Law upon the rights of the tenant against the landlord had the tenant failed to obtain insurance containing the required subrogation waiver clause. State Insurance, having agreed to waive its rights against the landlord and presumably taken that into consideration in fixing its premium, will not be heard to say that the landlord’s failure to participate with the tenant in the cost of insurance invalidates its waiver.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

Order reversed, etc.


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    In the Matter of David Bezio et al., Appellants, v New York State Office of Mental Retardation and Developmental Disabilities, Respondent.
    Argued May 10, 1984;
    decided June 14, 1984

      APPEARANCES OF COUNSEL

      Bruce S. Dix, James T. Donnelly, David M. LeVine and Michael F. O’Brien for appellants.

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the petition should be reinstated, without prejudice to an application for permission to replead.

We agree with the Appellate Division’s conclusion that section 15.23 of the Mental Hygiene Law is concerned with the suitability of the individual to remain in the status of a voluntary resident, rather than the suitability or appropriateness of the treatment being administered. That the Legislature so intended is evident from the requirement of the section that the court consider not only the resident’s suitability but also “his willingness to so remain.” But the fact that the petition asked for more rélief than can be granted under the particular section does not affect its sufficiency to state a cause of action (cf. CPLR 3017, subd [a]). Therefore, it should not have been dismissed.

It may be that petitioners can state a cause of action within the holding of our decision in Klostermann v Cuomo (61 NY2d 525), which had not been decided when the Appellate Division considered this case. To the extent that they seek to enforce rights under pertinent statutes as distinct from litigating the wisdom of the medical policy underlying the treatment they are receiving, they may be able to state a cause of action (compare Klostermann v Cuomo, 61 NY2d 525, supra, and Bruno v Codd, 47 NY2d 582, with Jones v Beame and Bowen v State Bd. of Social Welfare, 45 NY2d 402; and see Schwartz, Political Question Doctrine in New York, NYLJ, May 15, 1984, p 1, col 1). Rather than exercise the power given us by CPLR 103 to convert the present petition, framed as it was to bring the right to treatment issue within the scope of section 15.23 of the Mental Hygiene Law, to a complaint, we deem it the better course, particularly since we are informed that the treatment plan for, and status of, some of the petitioners has changed since the original pleading was drawn, to reverse and reinstate the pleading, without prejudice, however, to an application to Supreme Court, Schenectady County, for permission to replead.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

Order reversed, etc.


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    Hartford Accident and Indemnity Company, Respondent, v Costal Dry Dock and Repair Corp., Appellant.
    Decided June 14, 1984

      APPEARANCES OF COUNSEL

      Joseph F. Manes for appellant.

      Harry A. Gavalas for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (97 AD2d 724).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


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    Robert W. Nishman, Appellant-Respondent, v Anthony J. De Marco, Jr., Respondent-Appellant.
    Argued May 7, 1984;
    decided June 7, 1984

      APPEARANCES OF COUNSEL

      James A. Shanman for appellant-respondent.

      David L. Lewis for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division appealed from and the prior order of that court brought up for review on defendant’s cross appeal should be affirmed, without costs.

Notwithstanding what is claimed to have been the unchallenged assertion of plaintiff’s counsel at the opening of trial that overhead expenses were not to be deducted in the computations as to division of profits between these former law partners, the trial court determined that there should be “an equal division of net profits” on fees received since September 1,1975. Inasmuch as this factual determination with respect to their agreement was affirmed at the Appellate Division and there is evidence in the record to support it, that finding is beyond the scope of our review. The evidence in the record subsequently introduced before the referee, submitted almost wholly by defendant De Marco, is sufficient to sustain a finding as to the amount of overhead to be taken into account in the computation of “net profits”, and the determination of the Appellate Division with respect to such amount comports with the weight of the evidence.

Although it is not beyond the power of our courts in any case to deny judicial relief to a litigant who comes into court with unclean hands, we perceive no warrant in the circumstances of this case to relieve defendant De Marco of his stipulation at the opening of trial which, as the courts below have found, delimited the scope of issues to be determined to exclude consideration of any defense based on unclean hands principles. Particularly is this so where the defense was not pleaded, the evidence now urged to support it was expressly offered for the purposes of impeachment only, and the defense was first raised on defendant’s motion to dismiss at the close of his case. The parties charted their own course, and defendant offers no sufficient reason now to permit him radically to change that course (cf. Salesian Soc. v Village of Ellenville, 41 NY2d 521, 525-526 [municipality not relieved of stipulation waiving statutory right to notice of claim]).

Finally, there is no merit to the assertion that provisions of the Code of Professional Responsibility preclude giving effect to what the courts below have found was the agreement of the parties with respect to the division of fees received on matters pending at the time of dissolution of the partnership (Code of Professional Responsibility, DR 2-107 [B]).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order appealed from and prior order of the Appellate Division brought up for review on defendant’s cross appeal affirmed, without costs, in a memorandum. Question certified not answered as unnecessary.


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    Mann Theatres Corporation of California et al., Appellants-Respondents, v Mid-Island Shopping Plaza Co., as Successor in Interest to Mid-Island Shopping Plaza, Inc., Respondent-Appellant, and Mid-Plaza Associates, as Successor in Interest to Mid Plaza Cinema, Inc., et al., Appellants-Respondents. (Action No. 1.) Mid-Island Shopping Plaza Co., Respondent-Appellant, v Mid Plaza Cinema Associates et al., Appellants-Respondents. (Action No. 2.)
    Argued May 8, 1984;
    decided June 7, 1984

      APPEARANCES OF COUNSEL

      Kenneth B. Forrest, Herbert M. Wachtell and Marc Wol-insky for Mann Theatres Corporation of California, appellant-respondent.

      Michael D. Hess and Michael Luskin for Brighton The-atre Corporation, appellant-respondent.

      Daniel L. Carroll, Milton Popper, Denise Y. Turner and A. Walter Socolow for Mid-Plaza Associates and another, appellants-respondents.
    A. Thomas Levin and Theodore Daniels for respondent-appellant.
   OPINION OF THE COURT

Cross appeal taken as or right by Mid-Island Shopping Plaza Co. dismissed, without costs, upon the ground that cross-appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]), and motion by cross-appellant made on oral argument for leave to appeal granted. Order affirmed, without costs, for the reasons stated in the opinion by Justice Leon D. Lazer at the Appellate Division (94 AD2d 466); the remaining time within which appellants may cure the violation of paragraph 11 of the ground lease will commence to run on service on appellants, with notice of entry, of a copy of the order of Supreme Court, Nassau County, to be entered on the remittitur of this court.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


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    In the Matter of Thomas F. Conroy et al., Appellants, v Diane Levine, as Village Clerk for the Village of Port Washington North, et al., Respondents. (And Another Proceeding.)
    Argued June 5, 1984;
    decided June 14, 1984
    APPEARANCES OF COUNSEL

      Matthew A. Tedone for appellants.

      Stephen G. Limmer for Diane Levine and others, respondents.

      Steven R. Schlesinger for Michael Wolin and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioners brought these summary proceedings under section 15-138 of the Election Law to declare the Port Washington North general village election held on March 20, 1984 null and void, to remove the declared successful candidates for Village Trustees from office and to order a new general election.

The successful candidates here filed their respective oaths of office and assumed the offices of Village Trustees. Inasmuch as Supreme Court has no jurisdiction in a summary proceeding such as this to remove successful candidates from office or order a new election (Matter of Hanington v Coveney, 62 NY2d 640; Matter of Corrigan v Board of Elections, 38 AD2d 825, 826, affd 30 NY2d 603), the relief petitioners seek can be granted, if at all, only in a plenary action in the nature of quo warranto, (id.)

The attempt by petitioners to distinguish our decision in Matter of Hanington v Coveney (supra) on the ground that petitioners in that case proceeded pursuant to section 16-102 rather than section 15-138 is unpersuasive. Section 15-138 was not intended to enlarge the summary jurisdiction of Supreme Court over general elections; it is merely a recodification of prior law which required proceedings such as this to be brought in quo warranto. (See McKinney’s Session Laws of NY, 1972, pp 3408-3409; Election Law, former § 536, L 1972, ch 895, § 2; L 1972, ch 895, § 3; see, also, Matter of Mason v Tapel, 71 AD2d 1050.) As a result, Supreme Court was powerless to grant the summary relief requested. To the extent Matter of Nicholson v Blessing (88 AD2d 958) is to the contrary, it is not to be followed.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Simons and Kaye concur; Judge Meyer taking no part.

Order affirmed, without costs, in a memorandum.


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    Morris Goldstein et al., Respondents, v Consolidated Edison Company of New York, Inc., Appellant, et al., Defendants; Seymour Gillman, as Trustee in Bankruptcy for Sherry Tobacco Company, Inc., and Claremont-Madison Tobacco Corp., Respondent, v Consolidated Edison Company of New York, Inc., Appellant.
    Argued May 2, 1984;
    decided June 14, 1984

      APPEARANCES OF COUNSEL

      William E. Hegarty, Thomas J. Kavaler, Lisa Schilit and Ernest J. Williams for appellant in both actions.

      Jessel Rothman, Julian Kaplan and Margaret D. Kranz for Morris Goldstein and another, respondents.

      Jane Compton Hammett, Jay A. Mailer and Irving Schneider for Seymour Gillman, respondent.
   OPINION OF THE COURT

Orders affirmed, with costs, and question certified answered in the affirmative (see Koch v Consolidated Edison Co., 62 NY2d 548).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


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    Sun Yau Ko et al., Appellants, v Lincoln Savings Bank, Respondent.
    Decided June 14, 1984

      APPEARANCES OF COUNSEL

      Lillian L. Poses and Melvin Levitt for appellants.

      Kenneth W. Malamy for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (99 AD2d 943).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


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    In the Matter of Manuel Fernandez, Appellant, v New York State Employees’ Retirement System et al., Respondents.

      Decided June 14, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the unanimous Appellate Division order of affir-mance (CPLR 5601).


text:
    In the Matter of L. Robert Leisner, Appellant, v Victor S. Bahou, as President of the New York State Civil Service Commission, et al., Respondents.
    Submitted May 21, 1984;
    decided June 14, 1984
   Motion, insofar as it seeks leave to appeal from those portions of the order of the Appellate Division which pertain to vacatur of the stipulation of settlement and the claim for damages against respondent Bonk, dismissed upon the ground that those portions of the order do not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Daniel R. Pinello, an Attorney and Counselor at Law, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Decided June 14, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved and that the dissents are not on questions of law.


text:
    Loran W. Robbins et al., as Trustees of Central States Southeast and Southwest Areas Pension Fund, Respondents, v National Development, Inc., Defendant. Fay Green, Appellant.
    Decided June 14, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution; and upon the further ground that the appellant is not aggrieved by the modification at the Appellate Division.


text:
    Sam & Mary Housing Corp., Appellant, v Jo/Sal Market Corp., Respondent.
    Decided June 14, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right under CPLR 5601 (subd [a], par [i]) since the dissent at the Appellate Division, pertaining to a claimed error to which no objection was made, is not on a question of law which would be reviewable in this court (Guaspari v Gorsky, 29 NY2d 891).


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    Antoinette Spallina, as Conservator of the Property of Gaetana Manuse, Respondent, v Frank Giannoccaro et al., Appellants.
    Submitted May 14, 1984;
    decided June 14, 1984
   Motion to vacate the Court of Appeals order of dismissal dated April 25, 1984 denied with $20 costs. [See 62 NY2d 646.]


text:
    Argued June 4, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      John Anthony Bonina for appellants.

      Jay W. Levy for respondent.
   OPINION OF THE COURT

Memorandum.

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

According to an affidavit of service by mail submitted by defendant, a copy of a conditional order of preclusion with notice of entry was placed, postpaid, in an official depository of the United States on December 12, 1979. Plaintiffs never complied with the order, and defendant moved for summary judgment dismissing the action in March 1981. Plaintiffs opposed by claiming that the conditional order had never been received. Specifically, plaintiffs’ attorney averred that it “appears” that the order was mailed, but his office “never received that order,” from which he could “only surmise that this document was lost in the mail, since it was never delivered to our offices.”

A properly executed affidavit of service raises a presumption that a proper mailing occurred. By statute, service is complete upon mailing (CPLR 2103, subd [b], par 2). Plaintiffs’ papers raise no question of fact as to whether proper service was made.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


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    Jay S. Shinder, Respondent, v State of New York, Appellant.
    (Claim No. 61498-A.)
    Argued June 6, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Vernon Stuart and Peter Schiff of counsel), for appellant.

      James D. Featherstonhaugh for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the claim dismissed.

The claim essentially seeks judicial review of the allocation of police resources. The absence of a “special duty” owed to claimant by the State precludes his recovery (see Napolitano v County of Suffolk, 61 NY2d 863; Evers v Westerberg, 32 NY2d 684). Nor was such a “special duty” created by the officers’ assumption of a duty when they earlier attempted to remove the bull from the roadway, as there is no basis for finding that claimant relied on these efforts to his detriment (cf. De Long v County of Erie, 60 NY2d 296; Florence v Goldberg, 44 NY2d 189).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer and Kaye concur in memorandum; Judge Simons concurs on constraint of Napolitano v County of Suffolk (61 NY2d 863).

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.


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    In the Matter of Katherine W., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued June 5, 1984;
    decided June 29, 1984
    APPEARANCES OF COUNSEL

      John F. McGlynn and Lenore Gittis for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Dody Schorr and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Respondent was adjudicated a juvenile delinquent after she admitted to petit larceny in full satisfaction of the delinquency petition. A dispositional hearing was held, at which the senior psychologist of the Family Court clinic, respondent’s probation officer, and a Division for Youth court liaison worker testified. Based on their recommendations, respondent was ordered placed in a Division for Youth Title III facility for a 12-month period. The Appellate Division affirmed, without opinion.

On this appeal, respondent argues that the Family Court abused its.discretion in placing respondent in a Title III facility. She notes that these facilities are the most restrictive and secure type of facility run by the Department for Youth and that they are usually reserved for juveniles with the most egregious delinquency records. Respondent contends that the Family Court failed to order the least restrictive confinement that would be consistent with both respondent’s best interest and the need to protect the community (see Matter of Cecil L., 71 AD2d 917; Matter of Donna H., 70 AD2d 521; Matter of Andre L., 64 AD2d 479; see, also, Family Ct Act, § 352.2, subd [2]). In support of this position, respondent asserts that the Family Court failed to consider less restrictive alternatives or whether respondent’s special medical, educational, and dietary needs could be attended to in a Title III facility.

At the dispositional hearing, the court-retained psychiatrist testified that due to respondent’s volatile temper, other psychological problems, and past acts of violence, her interests would be best served in the most structured environment available. Other evidence indicated that respondent had fled from other nonsecure settings and that none of four less secure facilities for which respondent was eligible would accept her. Finally, the relative advantages and disadvantages of placing respondent in a secure facility were ventilated at the dispositional hearing. On this record, it cannot be said as a matter of law that the Family Court abused its discretion in ordering respondent placed in the Title III facility.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Charles Shattenkirk et al., Appellants, v Michael Finnerty, as Budget Director of the State of New York, et al., Respondents.
    Argued June 7, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      Bartley J. Costello, III, John J. Ciavardoni and William F. Sheehan for appellants.

      Robert Abrams, Attorney-General (Peter H. Schiff and Alan W. Rubenstein of counsel), for respondent.
   OPINION OF THE COURT

Order, insofar as appealed from, affirmed, with costs, for reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (97 AD2d 51).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Haamid Azeem et al., Appellants, v Colonial Assurance Company et al., Respondents.
    Argued June 4, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      Thomas A. Palmer for appellants.

      James D. Gauthier for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice James H. Boomer at the Appellate Division (96 AD2d 123).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    John Williams, Doing Business as John Williams Productions, Appellant, v American Home Assurance Company et al., Respondents.
    Submitted June 4, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      Steven H. Gifts and Robert J. Poulson, Jr., for appellant.

      John M. Speyer and Renee F. Frank for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (97 AD2d 707).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of William Harris, Respondent, v Trustees of Columbia University in the City of New York, Appellants.
    Argued June 6, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      Floyd Abrams, P. Kevin Castel, Andrew Dash and Byron Golden for appellants.

      Harry Kresky for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and petition dismissed for reasons stated in the dissenting opinion by Justice Bentley Kassal at the Appellate Division (98 AD2d 58, 67-73).

Concur: Chief Judge Cooke and Judges Jasen, Wacht-ler, Simons and Kaye. Judges Jones and Meyer dissent and vote to affirm for reasons stated in the opinions by Justices Sidney H. Asch and Samuel J. Silverman at the Appellate Division (98 AD2d 58, 67).


text:
    In the Matter of Patricia Apuzzo, Appellant-Respondent, v County of Ulster, Respondent-Appellant, and Ulster County Unit, Ulster Local 856 of the Civil Service Employees Association, et al., Respondents.
    Argued June 5, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      Louis M. Klein for appellant-respondent.

      Francis T. Murray, County Attorney {Brian L. Findholt of counsel), for respondent-appellant.

      William M. Wallens for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to respondents against both appellants, for the reasons stated in its memorandum (98 AD2d 869). We add that, whether or not petitioner has standing to bring the instant proceeding in light of the provisions of article IV of the collective bargaining agreement (Chupka v Lorenz-Schneider Co., 12 NY2d 1; Matter of Soto [Goldman], 7 NY2d 397), the issues raised are properly before us on the county’s appeal, it having cross-petitioned for the same relief. We note further, however, that the claim of laches is not, that question being for the arbitrator (cf. CPLR 7502, subd [b]), and that revocation of the Apuzzo appointment is not barred by section 75 of the Civil Service Law, the failure to follow the seniority preference provision of section 2 of article XIV of the agreement being an irregularity of a substantial nature in the appointment, within the meaning of the last unnumbered paragraph of subdivision 4 of section 50 of the Civil Service Law (see, also, Civil Service Law, § 52, subd 2).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs to respondents against appellant, in a memorandum.


text:
    Leo Zanoni et al., Plaintiffs, v 855 Holding Co., Inc., et al., Defendants, Brentwood Pioneer Associates, Appellant, and M. Robert Lehrer, Respondent.
    Argued June 6, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      Leon Malman for appellant.

      Edward Flower and Warren Landau for respondent.
   OPINION OF THE COURT

Order, insofar as appealed from, affirmed, with costs, for the relevant reasons stated in the memorandum at the Appellate Division (96 AD2d 860).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Sun Beach Real Estate Development Corp., Appellant, v Charles Anderson, as Town Clerk of the Town of East Hampton, et al., Respondents.
    Argued June 14, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      Haliburton Fales, 2d, Alice R. Belair and Alice K. Jump for appellant.

      Frank A. Isler and Howard M. Finkelstein for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Leon D. Lazer at the Appellate Division (98 AD2d 367).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of John Svenningsen et al., Respondents, v John A. Passidomo, as Supervisor of the Town Board of Harrison, et al., Appellants.
    Submitted June 7, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      William Maker, Jr., for appellants.

      Andrew N. Karlen and Thomas F. Keane, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs (see 95 AD2d 833).

Petitioners own real property located partly in the City of Rye and partly in the Town of Harrison. They pay real property taxes to both municipalities and to the Town of Harrison School District. The property also lies within the Mamaroneck Valley Sewer District, which includes Harrison’s sewer system, and petitioners pay sewer taxes to Westchester County, the Mamaroneck Valley Sewer District and the Town/Village of Harrison Sewer District Number 1. A one-story masonry structure, previously used as a warehouse, is located on the Rye side of the property line. Petitioners seek to convert this building to office space and have received approval from the City of Rye for the conversion subject to establishing sewer facilities. Petitioners sought permission from respondents to hookup with the South Road sewer line in the Town of Harrison, the only sewer line reasonably proximate to petitioners’ property, but respondents denied the application unless petitioners agreed that the number of offices and the size of the parking area would be subject to prior approval of the town. The apparent purpose for the insistence on that condition was to control predicted traffic problems in the area. At least no objection to the use of the sewer line as such was expressed. Petitioners commenced this article 78 proceeding alleging that the Town Board’s conditions were arbitrary, unreasonable and constituted an abuse of discretion.

On this appeal respondents take the position that they possess absolute discretion to grant or deny petitioners’ application to connect with the Town of Harrison sewer line for any reason or for no reason at all and that they cannot be compelled to supply sewer service to a building outside the territorial limits of the town. The short answer to that contention is that the building is on property partly within the town and petitioners pay real estate and sewer taxes to the town. They were thus entitled to have their application considered on the merits, subject to rejection or qualification upon a finding that the proposed connection, because of excessive demands on the system or otherwise, would present problems related to the sewer system or the public health of the town (see Matter of Belle Harbor Realty Corp. v Kerr, 35 NY2d 507, 511; Matter of Bologno v O’Connell, 7 NY2d 155; Matter of Harper v Zoning Bd. of Appeals, 55 AD2d 405, 411-413, affd 43 NY2d 980). Nothing in the record establishes that the development of petitioners’ property will create such problems and rejection of their application because of anticipated traffic congestion in the area created by the new use was arbitrary and capricious because unrelated to the proposed sewer connection.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    Pogo Holding Corporation, Appellant, v New York Property Insurance Underwriting Association, Respondent.
    Argued June 4, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      Matthew Dollinger for appellant.

      Walter P. Kelly for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant, Pogo Holding Corporation, brought suit to recover the proceeds of two fire insurance policies, in the amounts of $40,000 and $15,000, issued by respondent, New York Property Insurance Underwriting Association, covering two wood frame buildings owned by appellant in Far Rockaway, which sustained fire damage in September 1974. Respondent asserted as affirmative defenses that appellant willfully misrepresented the value of its property in its sworn proof of loss statements, and that appellant swore falsely and willfully misrepresented and concealed information relating to its property during the examinations under oath required by the policy. Under the policies at issue, which, contained the standard New York fire insurance policy, either of the above, if proved, would be ground for voiding the policies (see Insurance Law, § 1.68, subd 5).

At trial, evidence was introduced showing that while appellant, in its proofs of loss, claimed that the value of its damaged property was $55,000 (the full amount of the policies), a real estate expert called by respondent testified that the value of the premises before the fire was only $10,500. Additionally, one of its officers during appellant’s examination under oath gave testimony as to the rental value of the properties which conflicted with lower rental figures set forth in a letter previously sent by appellant to respondent. Trial Term instructed the jury, without objection, as follows:

“I instruct you that false swearing or misrepresentation as to a material fact, if intentional, in the proof of loss or in the insured’s examination under oath, will bar the plaintiff’s recovery. It need not be shown that the defendant was injured by the falsity.

“Now, an insured’s motive in making a false statement is immaterial. If he knowingly makes a false statement intentionally [sic] to deceive will be implied on the principle that every person intends the natural consequences of his act.

“If you find that the defendant has established by a fair preponderance of the evidence that the plaintiff intentionally swore falsely or misrepresented as to a material fact in the proofs of loss or in its examination under oath, your verdict will be for the defendant.”

Trial Term also submitted a jury verdict form containing several interrogatories, again without objection. In response to the question, “Did plaintiff falsely swear to or misrepresent a material fact,” the jury answered “Yes.” The jury verdict form stated that if the answer to that question were “yes,” the jury should “go no further and report your verdict for defendant.”

Trial Term did not enter judgment on that verdict. Instead the court stated that appellant had earlier moved to dismiss respondent’s affirmative defenses (one based on falsity in proofs of loss, and one based on falsity in examinations under oath) and that, since both defenses were embraced in the single interrogatory above, he would separate the defenses and ask the jury two more questions. Respondent’s counsel objected to Trial Term’s refusal to accept the verdict, and to the proposed additional questions, which he feared would be “almost indicating to [the jury] that they did something wrong in the decision of the verdict that they did reach.” Over that objection, Trial Term then instructed the jury to “determine whether the plaintiff falsely swore to or misrepresented a material fact either during its examinations before trial or in its proofs of loss or both.” The jury returned a finding in narrative form to the effect that appellant “misrepresented the values of the houses.”

Once again Trial Term refused to accept the jury’s verdict, this time for improper form, and resubmitted the issue of whether appellant falsely swore or misrepresented a material fact in its proof of loss or examination as separate written questions, both of which the jury answered in the negative. At that point Trial Term concluded that the jury’s latest answers were inconsistent and set aside the original verdict, over respondent’s objection, dismissed respondent’s affirmative defense of false swearing and misrepresentation in appellant’s proofs of loss, and ordered a new trial on appellant’s cause of action and respondent’s remaining defense of misrepresentation or concealment by appellant in its examinations under oath.

The Appellate Division unanimously reversed and reinstated the jury’s original verdict in favor of respondent. We affirm.

Trial Term erroneously refused to accept the jury’s initial finding that appellant falsely swore or misrepresented a material fact, which, as stated on the jury verdict form, required a verdict in favor of respondent. Under the law governing this case as set forth in the charge, the evidence was sufficient to support the jury’s finding as to appellant’s false swearing or misrepresentation, and the verdict should have been accepted by Trial Term. This was not a case where the jury’s initial answers to interrogatories were ambiguous, equivocal or inconsistent with the general verdict or each other (see CPLR 4111, subd [c]), and therefore there was no basis for resubmitting the issue to the jury for reconsideration. (Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 40-41; Kennard v Welded Tank & Constr. Co., 25 NY2d 324.) The inconsistent answers, reached by the jury only after Trial Term twice improperly rejected its finding of misrepresentation by appellant, cannot serve as a basis for rejecting the jury’s initial interrogatory answer and the consequent general verdict which were supported by the evidence at trial.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur; Chief Judge Cooke taking no part.

Order affirmed, with costs, in a memorandum.

      . While we have held that intent to deceive is an element of the affirmative defense of fraud or false swearing under an insurance policy (Jonari Mgt. Corp. v St. Paul Fire & Mar. Ins. Co., 58 NY2d 408, 417), Trial Term’s charge, which was not objected to, “is the law governing this case under which the legal sufficiency of the evidence to support the jury’s finding * * * must be assessed.” (Bichler v Lilly & Co., 55 NY2d 571, 584.)

      . While the clerk did not inquire, and the jury did not report, whether it reached the general verdict for respondent required by the directions on the verdict form, that omission — to which appellant did not object — is of no effect, as the jury’s interrogatory answer was a sufficient basis on which judgment could have been entered for respondent. (Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 39-41.)


text:
    Robert Eisenbach, Appellant, v Metropolitan Transportation Authority et al., Respondents.
    Argued June 5, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      James Gilroy, Paul O’Dwyer and Joseph Licata for appellant.

      Edward G. Lukoski and Thomas M. Taranto for respondents.
   OPINION OF THE COURT

Memorandum.

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

Appellant, Robert Eisenbach, in November 1982 commenced this negligence action against respondents, Metropolitan Transportation Authority and Long Island Railroad, alleging that in August 1981, while a passenger, he fell from one of respondents’ trains and was struck by another, sustaining extensive physical injuries. Respondents moved to dismiss the complaint as time-barred (CPLR 3211, subd [a], par 5). The parties have agreed that the applicable limitations period is one year and 30 days; this action was not in fact commenced until one year and 80 days after the accident. The issue presented is whether the limitations period should have been tolled, pursuant to CPLR 208, for the 68-day period following the accident during which appellant, while hospitalized and treated with strong pain-killing drugs, was, in his words, “generally confused, disoriented, and unable to effectively attend to [his] affairs.” Appellant claims that he is entitled to the benefit of the tolling provision because this disability amounted to “insanity” within the meaning of CPLR 208. Special Term denied respondents’ motion to dismiss, concluding that there was a triable issue of fact as to whether appellant’s condition “was such that he was mentally incapable of protecting his rights and handling his own affairs.” The Appellate Division reversed and granted respondents’ motion to dismiss the complaint, holding that “ ‘the toll claimed by [appellant] in this instance is untenable as a matter of law’ ”. (97 AD2d 808, 809.)

In McCarthy v Volkswagen of Amer. (55 NY2d 543) we held that a toll claimed by the plaintiff on the basis of “post traumatic neurosis” was untenable as a matter of law in view of the Legislature’s intention that the toll for insanity be narrowly interpreted and the fact that a contrary interpretation of that statute “could greatly and perhaps inappropriately expand the class of persons able to assert the toll for insanity and could, concomitantly, weaken the policy of the Statutes of Limitation as statutes of repose.” (McCarthy v Volkswagen of Amer., 55 NY2d 543, 548, 549, supra.) The same reasoning applies here. The provision of CPLR 208 tolling the Statute of Limitations period for insanity, a concept equated with unsoundness of mind (De Gogorza v Knickerbocker Life Ins. Co., 65 NY 232, 237), should not be read to include the temporary effects of medications administered in the treatment of physical injuries. The expansion of the statute to embrace such disability — undoubtedly experienced in varying degrees whenever pain-killing drugs are administered — should be accomplished, if at all, by legislative action.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.

       To the extent that Matter of Hurd v County of Allegany (39 AD2d 499) may be read to support a contrary result it should not be followed.


text:
    The People of the State of New York, Respondent, v Jerome Anthony, Appellant.
    Decided June 29, 1984
   Appeal dismissed by the Court of Appeals sua sponte, upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).


text:
    Lawrence Carp, Appellant, v Sharon L. Marcus, as Administratrix of the Estate of Patricia A. Marcus, Deceased, Respondent.
    Decided June 29, 1984
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    In the Matter of Erik A. Nicolaysen, Appellant-Respondent, et al., Petitioner, v Antonia D’Apice et al., as Commissioners of the Board of Elections, Westchester County, et al., Respondents, and Lawrence Breen et al., Respondents-Appellants. (And Another Proceeding.)
    Decided June 29, 1984
   Cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that cross appellants are not parties aggrieved (CPLR 5511).


text:
    In the Matter of Riverview Apartments Co., Appellant, v Ruth Golos, as Assessor of the City of Elmira, et al., Respondents, and City School District of the City of Elmira, Intervenor-Respondent.
    Submitted May 21, 1984;
    decided June 29, 1984
   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 and is not the type of nonfinal order which comes within the meaning of CPLR 5602 (subd [a], par 2).


text:
    Valentino Gandolfi et al., Respondents, v City of Yonkers, Defendant, and County of Westchester, Appellant. (Action No. 1.) Platzner Organization et al., Respondents, v David A. Shulman, as Commissioner of Finance of the County of Westchester, et al., Appellants. (Action No. 2.)
    Argued June 7, 1984;
    decided June 29, 1984

      APPEARANCES OF COUNSEL

      Henry J. Logan, County Attorney (Kenneth E. Powell and Lester D. Steinman of counsel), for County of Westchester, appellant.

      Arthur J. Doran, Jr., Corporation Counsel (Joseph E. St. Onge of counsel), for City of Yonkers, appellant.

      Barbara Gunther, Corporation Counsel, for City of Mount Vernon, appellant.

      Maxwell E. Charat, Corporation Counsel (Stephen J. Mignano of counsel), for City of New Rochelle, appellant.

      Frederick J. Adler for Valentino Gandolfi and others, respondents.

      Jonathan Lovett for Platzner Organization and others, respondents.

      Robert Abrams, Attorney-General (August L. Fietkau, Peter H. Schiff and Richard G. Liskov of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the opinion by Justice Vito J. Titone at the Appellate Division (101 AD2d 188). Question certified insofar as it relates to action No. 1 answered in the affirmative, and question certified insofar as it relates to action No. 2 not answered as unnecessary.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.