text:
    Mark Boltax, Appellant, v Joy Day Camp, Also Known as Kissena Park Jewish Educational Center, et al., Respondents.
    Decided January 14, 1986

      APPEARANCES OF COUNSEL

      James P. Kreindler for appellant.

      John B. Shields and Patricia N. Cirillo for Joy Day Camp, respondent.

      Harry P. Brett for Flushing County Day School, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

To establish a prima facie case of negligence, a "plaintiff must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). When an intervening act also contributes to the plaintiff’s injuries, "liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” (Derdiarian v Felix Contr. Corp., 51 NY2d, at p 315, supra). Assuming for purposes of this motion for summary judgment that defendants’ alleged negligence— allowing trespassers to gain entry to the pool area and dangerously maintaining the pool by having it filled below capacity and by placing a lifeguard chair near the pool’s shallow end— was a causative factor in plaintiff’s injuries, the reckless conduct of plaintiff, an adult experienced in swimming and knowledgeable about the general dangers of diving, who admitted his familiarity with the various water levels at each part of the pool, yet chose to dive head first from the lifeguard chair into shallow water, was an unforeseeable superseding event that absolves defendants of liability (see, Prosser and Keeton, Torts § 44, at 313-314 [5th ed 1984]; Basso v Miller, 40 NY2d 233, 241 ["foreseeability shall be a measure of (a landowner’s) liability”]). "[W]here only one conclusion may be drawn from the established facts * * * the question of legal cause may be decided as a matter of law” (Derdiarian v Felix Contr. Corp., supra, at p 315).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

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:
    In the Matter of John E. Mirch, Appellant, v State of New York Office of Court Administration et al., Respondents.
    Argued January 9, 1986;
    decided January 14, 1986

      APPEARANCES OF COUNSEL

      John E. Mirch, appellant pro se.

      Kenneth Falk, Michael Colodner and John Eiseman for State of New York Office of Court Administration, respondent.

      Robert Abrams, Attorney-General (Robert Hermann, Peter H Schiff and William J. Kogan of counsel), for Classification Review Board, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (111 AD2d 965).

Concur: Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr. Taking no part: Chief Judge Wachtler.


text:
    In the Matter of Carol Ehrlich et al., Respondents, v New York City Conciliation and Appeals Board, Respondent, and Viola Sommer, Doing Business as Ete Co., Appellant.
    Decided January 14, 1986

      APPEARANCES OF COUNSEL

      Gary M. Rosenberg for appellant.

      Raymond A. Bragar for Carol Ehrlich and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to the Division of Housing and Community Renewal for further proceedings in accordance with this memorandum.

The enactment of the Laws of 1982 (ch 555), amending the Administrative Code of the City of New York containing its Rent Stabilization Law, did not repeal for the period July 20, 1982 through June 30, 1983 the provision allowing a landlord of a rent-stabilized apartment not to offer a renewal lease to a tenant not occupying the apartment as his primary residence. New York City’s authority to enact the Rent Stabilization Law derives from State legislative enactments. Both the Local Emergency Housing Rent Control Act (L 1962, ch 21, McKinney’s Uncons Laws of NY § 8605) and the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, McKinney’s Uncons Laws of NY § 8625) which authorize the city, after declaration of a housing emergency, to regulate certain types of housing, explicitly exempt from such regulation apartments not occupied by tenants as their primary residence (id.). Thus, notwithstanding the Legislature’s apparently inadvertent repeal of the city’s Rent Stabilization Law provision authorizing the promulgation of the primary residence rule embodied in the Rent Stabilization Code, the city continuously has lacked the power to subject apartments not occupied as primary residences to rent regulation. Since the right to a renewal lease is a feature of the Rent Stabilization Law, it follows that the city may not compel the landlord here to offer a renewal to these tenants if it can be shown that they were not occupying the apartment as their primary residence on September 30, 1982, the date their last lease expired. Because it has not yet been decided whether the apartment was so occupied at the time, the matter is remitted to the Division of Housing and Community Renewal for such determination.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and matter remitted to Supreme Court, New York County, with directions to remand to the Division of Housing and Community Renewal for further proceedings in accordance with the memorandum herein.


text:
    The People of the State of New York, Appellant, v Dawn Maria C., Respondent.
    Argued January 6, 1986;
    decided January 14, 1986

      APPEARANCES OF COUNSEL

      David A. Wait, District Attorney (Donna J. Arnold of counsel), for appellant.

      John L. McMahon for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Although no appeal lies from the Appellate Division order of reversal "as a matter of discretion in the interest of justice” to review the intermediate appellate court’s exercise of its discretion in declaring defendant a youthful offender (CPL 450.90 [2] [a]), an appeal does lie to consider the narrow issue concerning the legality of that court’s corrective action (CPL 450.90 [2] [b]; People v Mackell, 40 NY2d 59). We find no illegality in the Appellate Division’s remittal to County Court for sentencing. In so concluding we do not read the Appellate Division’s statement in its decision that County Court should "fix a reasonable definite term of incarceration along with a probationary period which includes the necessary counseling” (105 AD2d, at p 336) as in any way limiting the County Court’s discretion to impose a sentence authorized by statute (CPL 720.20 [3]; Penal Law § 60.02 [2]).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order affirmed in a memorandum.


text:
    Gateway State Bank, Respondent, v Shangri-La Private Club for Women, Inc., Appellant.
    Decided January 14, 1986

      APPEARANCES OF COUNSEL

      Richard E. Sands for appellant.

      Joan Nerlino Caddell 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 (113 AD2d 791).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone. Taking no part: Judge Hancock, Jr.


text:
    In the Matter of Warren M. Levin, Appellant, v C. Meynard Guest, as Executive Secretary of the State Board of Professional Medical Conduct for the State of New York, Respondent.
    Decided January 14, 1986

      APPEARANCES OF COUNSEL

      Daniel M. Kolko and Lorraine Backal for appellant.

      Robert Abrams, Attorney-General (Harvey M. Berman of counsel), 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 (112 AD2d 830).

Motion by American Academy of Medical Preventics for leave to file a brief amicus curiae denied.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone. Taking no part: Judge Hancock, Jr.


text:
    The People of the State of New York, Respondent, v Juan Matias, Appellant.
    Submitted December 30, 1985;
    decided January 14, 1986
   Motion to vacate the Court of Appeals order of dismissal dated December 17, 1985 granted, the appellant’s papers on appeal to be served and filed on or before February 3, 1986. [See, 66 NY2d 769.]

Judge Hancock, Jr., taking no part.


text:
    The People of the State of New York, Appellant, v Edwin Pacheco, Respondent.
    Submitted December 30, 1985;
    decided January 14, 1986
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Darden, 52 NY2d 1015; People v Prunty, 46 NY2d 1014; People v Mintz, 20 NY2d 753, 770).

Judge Hancock, Jr., taking no part.


text:
    The People of the State of New York ex rel. Charlie Sims and Willie Stevens, Appellants, v Thomas Murray, as Warden of Bikers Island Correctional Facility, Respondent.
    Submitted September 16, 1985;
    decided January 14, 1986
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.

Judge Hancock, Jr., taking no part.


text:
    In the Matter of Edward A. Wagner, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted December 16, 1985;
    decided January 14, 1986
   Motion to vacate the Court of Appeals order of dismissal dated June 19, 1985, etc., dismissed as untimely (22 NYCRR 500.11 [g] [3]), with $20 costs and necessary reproduction disbursements. [See, 65 NY2d 812.]

Judge Hancock, Jr., taking no part.


text:
    Mohan Shah, Appellant, v Eastern Silk Industries, Ltd., et al., Respondents.
    Decided January 16, 1986

      APPEARANCES OF COUNSEL

      Jerome H. Diamond for appellant.

      Jonathan J. Fink for respondents.
   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 (112 AD2d 870; see also, Foss v City of Rochester, 66 NY2d 872).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of Frank Marin et al., Respondents, v Board of Elections of the State of New York et al., Appellants.
    Decided January 16, 1986

      APPEARANCES OF COUNSEL

      James D. Featherstonhaugh for appellants.

      Raymond B. Harding for respondents.
   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 reversed, without costs, and petition dismissed. Question certified answered in the affirmative. We agree with the dissenters below that the failure to join all of the persons elected to party office at the September 17, 1984 organizational meeting of the Liberal Party State Committee within the time required by Election Law § 16-102 (2) was a defect that could not be cured by amendment pursuant to CPLR 1003 after the expiratian of the limitation period (Burns v Board of Elections, 65 NY2d 949; Matter of Greenspan v O’Rourke, 27 NY2d 846; Matter of Suthergreen v Westall, 6 AD2d 1014; see, Liberal Party of State of N. Y. v Board of Elections, 65 NY2d 949).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    Adeline Ascher et al., Appellants, v F. Garafolo Electric Co., Inc., Respondent, et al., Defendants.
    Decided January 16, 1986

      APPEARANCES OF COUNSEL

      Stephen A. Weingrad for appellants.

      Patrick W. Cannon 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 at the Appellate Division (113 AD2d 728).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    Irving Wolff, Appellant, v Bernard Wolff et al., Respondents.
    Decided January 16, 1986

      APPEARANCES OF COUNSEL

      Alan E. Bandler and Alan D. Scheinkman for appellant.

      Arnold Davis for Bernard Wolff and other, respondents.

      Irving I. Lederman Hot Coffee Vending Service, Inc., and another, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing so much thereof as affirmed the injunction against plaintiff and any corporation of which he is a shareholder and, except as so modified, the order should be affirmed, with costs to plaintiff.

Plaintiff and his three siblings (the individual defendants) charged wrongdoing and misappropriation against each other in connection with their food and game vending machine business, Hot Coffee Vending Service, Inc. The court after trial rejected plaintiff’s claims of oppression, waste and breach of fiduciary duty by defendants, and instead concluded that plaintiff himself had breached his fiduciary duties as a corporate officer, misappropriated Hot Coffee’s property and diverted its business opportunities. In particular, the court found that, while a Hot Coffee officer, plaintiff had surreptitiously organized Top Score Fun 'N Food in his own name and for his own benefit, and had thereby diverted business opportunities and property from Hot Coffee. The court specifically identified as lost business opportunities the Top Score facilities at Hunter College and the Madison Square Garden Bowling Center, as well as relations with the College of the City of New York. While plaintiff contended at trial that he had acted at the direction of defendant Bernard Wolff in operating these businesses for himself only after he had been wrongfully frozen out of the corporation, the affirmed findings of the trial court rejecting this as well as additional arguments tendered by appellant have support in the record and are therefore beyond our review (see, Humphrey v State of New York, 60 NY2d 742).

Plaintiff now contends that it was error for the courts below to impose an injunction against competition by him (or any Corporation of which he is a shareholder) with the business of Hot Coffee, and specifically against doing business at the Madison Square Garden Bowling Center, arguing that such an injunction — unbounded by time or geography — in effect deprives him of an opportunity to earn a livelihood. Indeed, the purpose of an injunction being remedial and not punitive (see, May’s Furs & Ready-to-Wear v Bauer, 282 NY 331, 343), we agree that the courts below abused their discretion in enjoining plaintiffs legitimate competition with Hot Coffee. Even an otherwise valid covenant not to compete will not be enforced if it would be unreasonable in time, space or scope, or would operate in a harsh or oppressive manner (see, American Broadcasting Cos. v Wolf, 52 NY2d 394, 403-404).

We do not, however, find merit in plaintiffs remaining arguments. First, while he urges that the business was not a corporation but a family joint venture, and that corporate fiduciary standards are inapplicable, the conclusions below regarding corporate status are amply supported by the record, including plaintiffs own admissions. Second, Hot Coffee being a corporation, we agree with the Appellate Division that property found to have been misappropriated by respondent Bernard Wolff should be returned to the corporation rather than to its shareholders. Finally, there is no anomaly in the direction that plaintiff account to Hot Coffee for diversions of its assets, contracts and business opportunities, until the date of settlement of the account, even though his shares are to be valued as of the day prior to the date upon which his complaint was filed. This relief was imposed not for breaches of fiduciary duty committed after the date of dissolution and valuation, but for wrongs to the corporation while plaintiff served as its officer. Where, as here, an officer has been found to have diverted corporate assets and opportunities, he may be held accountable for the fruits of his wrongdoing (see, Blaustein v Pan Am. Petroleum & Transp. Co., 293 NY 281, 300; New York Trust Co. v American Realty Co., 244 NY 209, 216; Restatement [Second] of Agency § 403).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 ÑYCRR 500.4), order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to plaintiff.


text:
    In the Matter of Michael A. Blase, Doing Business as University Heights Nursing Home, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants.
    Decided January 16, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert Hermann, Peter H Schiff and Clifford A. Royael of counsel), for appellants.

      Sharon Couch DeBonis for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to appellants, by vacating so much of the order as enjoined appellants from recouping purported Medicaid over-payments for the years 1973-1979 and compelled appellants to audit respondent’s cost reports for 1981 and 1982 and render a determination within 90 days, and by directing appellants to hold hearings with respect to the cost reports for the years 1973-1979, and except as so modified, the order should be affirmed (see, Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169). With respect to its 1981 and 1982 cost reports, respondent has not demonstrated a clear legal right to an audit and determination within 90 days (see, 10 NYCRR 86-2.7 [c]; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 178, supra), or that such review is a ministerial act mandated by law, and thus mandamus does not lie (see, Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 96).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to appellants, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Appellant, v Lucio Medina, Respondent.
    Argued January 10, 1986;
    decided January 16, 1986
   Appeal dismissed upon the ground that the Appellate Division’s determination of modification 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 * * * modification” (CPL 450.90 [2] [a]).


text:
    Vladimir K. Nelson, Respondent, v Times Square Stores Corporation, Appellant, et al., Defendants.
    Argued January 9, 1986;
    decided January 16, 1986
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division was not on a question of law (CPLR 5601 [former a] [i]; Guaspari v Gorsky, 29 NY2d 891).

Judge Titone taking no part.


text:
    James Talcott Factors, Inc., Appellant, v Larfred, Inc., Respondent.
    Submitted January 8, 1986;
    decided January 16, 1986
   On the court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine an action or proceeding within the meaning of the Constitution (Matter of Small, 158 NY 128). Motion for a stay pending appeal dismissed as academic.

Judge Alexander taking no part.


text:
    Alisa Kasachkoff, Appellant, v The City of New York et al., Respondents.
    Submitted December 23, 1985;
    decided January 16, 1986
   Motion to dismiss appeal insofar as it seeks review of the May 8, 1984 order of the Appellate Division granted and that portion of the appeal dismissed, with $20 costs of motion, upon the ground that the May 8, 1984 order does not necessarily affect the final determination appealed from (CPLR 5501 [a] [1]). Motion as to the contents of the record on appeal which has not yet been served or filed, dismissed as premature.

Judge Hancock, Jr., taking no part.


text:
    Hazel Keen, Individually and as Shareholder of Lebanon Hills Farms, Inc., Respondent, v Murray Keen, Appellant, et al., Defendants.
    Submitted December 2, 1985;
    decided January 16, 1986
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the movant is not a party to so much of the action as was severed and finally disposed of as against the corporate defendants (CPLR 5511).

Judge Hancock, Jr., taking no part.


text:
    The People of the State of New York, Respondent, v Raphael Torres, Appellant.
    Argued January 6, 1986;
    decided February 4, 1986

      APPEARANCES OF COUNSEL

      David Samel and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Kevin Lubin and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating the sentence, and the case remitted to Supreme Court, Bronx County, with instructions to resentence appellant before a different Judge.

The People admit violation of their promise to take no position regarding sentence, but contend defendant has failed to preserve this issue for review. However, defendant can be restored to his presentence position without withdrawing his plea, and he did timely interpose an objection prior to the prosecutor’s remarks at sentencing, when the error could have been cured (see, People v Tindle, 61 NY2d 752, 754).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order modified and case remitted to Supreme Court, Bronx County, with instructions to resentence appellant in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Appellant, v Eugene Powell, Respondent.
    Argued January 6, 1986;
    decided February 4, 1986

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Rosalyn H. Richter and Barbara D. Underwood of counsel), for appellant.

      Joel L. Deckler and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant was tried for the robbery of a school teacher which occurred in front of her fourth grade class. The People called as a witness one of the students, 10 years old at the time of trial, who had not made any identification of defendant prior to trial. When the child was unable to identify the defendant, who had shaved off his beard since the time of his arrest, the People were allowed, over objection, to show him a photograph of the defendant taken at the time of his arrest, and to ask him whether he recognized the picture. Under these circumstances, this prompting of an in-court identification through showing this 10-year-old witness the single photograph was improper.

We agree with the Appellate Division that this error, in the context of this case, was not harmless and therefore a new trial is required.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Alexander concur; Judges Titone and Hancock, Jr., taking no part.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Leroy James, Respondent.
    Argued January 7, 1986;
    decided February 4, 1986

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Rosalyn H. Richter, Barbara D. Underwood and Karen M. Wigle of counsel), for appellant.

      Carol Mellor for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In view of the Appellate Division’s conclusion, not challenged by the People on this appeal, that the victim’s testimony as to his identification of the defendant at the precinct should have been suppressed, the in-court identification by the victim was also improperly admitted as there was no evidence at the suppression hearing of an independent source for it. The Appellate Division properly noted that it may not make its own finding of an independent source based upon trial testimony (see, People v Dodt, 61 NY2d 408, 417; see also, People v Wilkins, 65 NY2d 172; People v Gonzalez, 55 NY2d 720, cert denied 456 US 1010).

The Appellate Division also properly reversed the defendant’s conviction of criminal possession of stolen property in the first degree and dismissed that count of the indictment. The only evidence before the jury as to the value of the car, a 1975 Chevrolet, at the time defendant possessed it (Oct. 1980), was the owner’s testimony that he had purchased it approximately one year prior to that date for $2,600 and had used it during that year as a "gypsy cab”. We agree with the majority below that this evidence was insufficient as a matter of law to establish that the value of the car exceeded $1,500 at the time it was stolen.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Alexander concur; Judges Titone and Hancock, Jr., taking no part.

Order affirmed in a memorandum.


text:
    In the Matter of Eastern New York Youth Soccer Association et al., Appellants, v New York State Public High School Athletic Association, Inc., et al., Respondents.
    Argued January 6, 1986;
    decided February 4, 1986

      APPEARANCES OF COUNSEL

      Michael A. Rebell and Roberta G. Koenigsberg for appellants.

      Ronald R. Shaw for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that respondent’s rule limiting participation in club and interscholastic athletics is rational and does not violate any fundamental constitutional right of family autonomy (see, 108 AD2d 39). Also presented for our review is petitioner’s contention that authority was improperly delegated to respondent to promulgate the outside competition rule. Respondent’s authority to promulgate the rule is implicit from the provisions contained in part 135 of the Commissioner’s regulations (8 NYCRR). Local boards of education are required to conduct interscholastic athletics in accordance with the Commissioner’s regulations "and such additional rules consistent with this basic code as may be adopted by such boards relating to items not covered specifically in” it and the regulations provide also that a "board may authorize appropriate staff members to consult with representatives of other school systems and make recommendations to the board for the enactment” of rules regulating athletic activities (8 NYCRR 135.4 [c] [7] [ij [a]). Respondent is a voluntary association of local boards of education, containing representatives of various school boards. It was those member schools that exercised the authority conferred upon them by the Commissioner of Education when respondent promulgated the rule at issue. This view finds further support in the definition of athletic association in the regulations as a "central organization of schools joined together on a large geographic area or statewide basis for the purpose of governing athletic programs for all its member schools”, thus recognizing that local school boards may form an association such as respondent to regulate interscholastic athletic programs (8 NYCRR 135.1 [f]).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Herald Company, Inc., Appellant, v Louis H. Mariani, as City Judge of the City of Syracuse, et al., Respondents.
    Argued January 6, 1986;
    decided February 4, 1986
    APPEARANCES OF COUNSEL

      S. Paul Battaglia for appellant.

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Beth J. Van Doren of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner-appellant, Herald Company, seeks release of a transcript of testimony given by a 13-year-old victim during a preliminary hearing in Syracuse City Court in connection with charges of rape by a 15-year-old defendant. After denial of the application by the City Court Judge, respondent Louis Mariani, Herald commenced this article 78 proceeding in Supreme Court, Onondaga County, to prohibit enforcement of the order. Although on February 1, 1984, pursuant to the request of the Onondaga County Grand Jury, the underlying criminal matter was transferred to Onondaga County Family Court, in August 1984 Supreme Court granted the petition to the extent of ordering respondents to provide Herald with a copy of the transcript redacted to preserve the anonymity of the victim and the privacy of defendant. The Appellate Division reversed on the ground that, upon removal, Supreme Court was without jurisdiction to rule on Herald’s request for the transcript.

The issue is not one of jurisdiction of Supreme Court— where jurisdiction generally lies in article 78 proceedings (see, CPLR 7804 [b]) — but rather the impact on the City Court order of removal and transfer of all records to Family Court.

In urging that the City Court order remained viable and subject to review, Herald relies on CPL 725.10 (2), which provides that upon removal "[a]ll further proceedings including motions and appeals shall be in accordance with laws appertaining to the family court and for this purpose all findings, determinations, verdicts and orders other than the order of removal, shall be deemed to have been made by the family court.” This section, which assures continuity in proceedings despite transfer, cannot divest Family Court of its responsibility and power — not shared by City Court — to "consider the needs and best interests of the respondent” (see, Family Ct Act § 301.1), and to exclude the public from juvenile delinquency proceedings (Family Ct Act § 341.1; see also, Family Ct Act §§ 166, 212; 22 NYCRR 2501.2, 2501.3). Indeed, Herald’s argument based on CPL 725.10 is immediately contradicted by CPL 725.15, where the Legislature has decreed that the official records of an action preceding removal become "confidential and must not be made available to any person or public or private agency” except in accordance with Family Court procedures, thus specifically imposing "the traditional Family Court veil of confidentiality” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 725.15, p 252). In this situation, then, it is apparent that the City Court order cannot simply be "deemed” a Family Court order subject to review in an article 78 proceeding. Any application for release of the transcript must be made to Family Court, to be determined in accordance with standards applicable to juvenile delinquency proceedings in that court (see, e.g., Matter of Robert M., 109 Misc 2d 427).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Leonard Zorcik, Appellant.
    Argued January 7, 1986;
    decided February 4, 1986

      APPEARANCES OF COUNSEL

      Sari M. Friedman for appellant.

      John J. Santucci, District Attorney (Annette Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Knowledge that property is stolen may be shown circumstantially, such as by evidence of recent exclusive possession, defendant’s conduct or contradictory statements from which guilt may be inferred (People v Reisman, 29 NY2d 278, 285-286, cert denied 405 US 1041; People v Von Werne, 41 NY2d 584, 590). In this prosecution for criminal possession of stolen property in the first degree, the evidence was sufficient for the jury to infer that defendant knew the car he possessed had been stolen. For example, defendant admitted having had possession of the vehicle within six hours after the theft was reported; his story that "John” had left the car with him for repair on August 12 or 15, 1982 was contradicted by the owner, who testified that she had possession of the car until August 18, when it was stolen; defendant was unable to identify "John” or furnish accurate information as to his whereabouts; the car’s radio had been removed and the locks tampered with; and the car had affixed to it the license plates of a vehicle which had been at defendant’s shop just before being scrapped, thus affording defendant an opportunity to obtain those plates.

Defendant’s other claims are either unpreserved or without merit.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order affirmed in a memorandum.


text:
    In the Matter of Jean M. Phillips, Appellant, v Robert J. Maurer, as Acting Commissioner of Education of the State of New York, et al., Respondents.
    Argued January 7, 1986;
    decided February 4, 1986

      APPEARANCES OF COUNSEL

      Christopher J. Enos for appellant.

      Kenneth Pawson and Robert D. Stone for Robert J. Maurer, as Acting Commissioner of Education of the State of New York, respondent.

      John W. Glavin for Board of Education of the WheatlandChili Central School District, respondent.

      Jay Worona and Norman H. Gross for New York State School Boards Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that Education Law §§ 1716 and 1709 (33) authorize a board of education to "present a proposed annual budget, accompanied by educational and informational material to enlighten the voters” (109 AD2d 998, 999), and that public moneys may be spent reasonably to accomplish this end (e.g., Matter of Lawson, 21 Ed Dept Rep 296; Matter of Bishop, 14 Ed Dept Rep 278; Matter of Kemp, 1 Ed Dept Rep 33). We cannot agree, however, with the respondent Acting Commissioner’s interpretation that the scope of a board of education’s statutory authority allows a board to disseminate information, at the taxpayers’ expense, patently designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board. It has been stated in a different context that "[t]o educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval by a State agency of any issue, worthy as it may be” (Stern v Kramarsky, 84 Misc 2d 447, 452; see also, 1980 Opns St Comp No. 80-411).

The challenged advertisement contains information that, standing alone, would be considered a proper attempt to educate the public so that they will be better equipped to exercise their franchise. However, it also urges readers in bold print to vote "yes” to wheatland-chili’s budget and bond issue proposal, and contains subjective statements, such as "The Board of Education urges residents to vote 'Yes’ for the proposed budget and bond issue, because it believes both are in the best interest of the District” and "By voting 'Yes’ * * * you will help protect our school facilities and the quality of education in our District”. Accordingly, the advertisement exceeds the publication of information "reasonably necessary” to educate the public (see, Education Law § 1709 [33]) and there is no rational basis for the Acting Commissioner’s failure to restrain the board from purchasing it with district funds.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur in memorandum; Judge Hancock, Jr., taking no part.

Order reversed, etc.


text:
    In the Matter of the Conservator of the Property of Artemesia Battisti, a Patient at Willard Psychiatric Center. Anthony N. Mustille, as Director of Willard Psychiatric Center, Respondent; Louis Battisti, Appellant.
    Decided February 4, 1986
   Appeal from order entered July 22, 1985 dismissed, without costs, by the Court of Appeals sua sponte, as untimely taken.

Appeal from order entered December 13, 1985 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.


text:
    Anthony M. Donaloio et al., Appellants, v State of New York, Respondent.
    Submitted December 23, 1985;
    decided February 4, 1986
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (see, Cohen and Karger, Powers of the New York Court of Appeals § 36 [c], at 144-145).


text:
    Harold Shorr, Appellant, v Cohen Bros. Realty & Construction Corp. et al., Respondents.
    Argued January 8, 1986;
    decided February 6, 1986

      APPEARANCES OF COUNSEL

      Thomas R. Newman, Louis G. Adolf sen and Audrey Rogers for appellant.

      Joseph D. Ahearn and Michael Majewski for respondents.
   OPINION OF THE COURT

Memorandum.

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

The plaintiff was severely injured on June 15, 1973 when he jumped out of a window of his sixth story apartment to escape a fire which he had caused by placing a recently used gasoline tank, with the top removed, near the pilot light on a stove. When the pilot light’s flame ignited a residue which had apparently remained in the tank, plaintiff poured water on the fire, thereby causing it to spread throughout the kitchen. Plaintiff thought about pouring more water on the fire, and walked around the apartment for several minutes before finally deciding to flee. He first attempted to leave the apartment through the door, but was unable to open it.

Plaintiff commenced this negligence action against the defendant, his landlord, contending that the door did not open because it had "seized” at the top and that defendant, despite notice of this defect prior to the fire, had failed to repair the door. A verdict for the plaintiff at the first trial was set aside by the trial judge, who ordered a new trial. A judgment for the plaintiff entered on the verdict at the second trial was reversed by the Appellate Division, and a third trial ordered, on the ground that the trial judge had improperly removed from the jury’s consideration, on the issue of contributory negligence, the plaintiff’s conduct which caused the fire.

At the third trial, the defendant, as it had done previously, asserted that plaintiff’s injuries were caused by his own negligence and, with respect to the alleged "seizing” of the door, contended that it did not open because plaintiff had not unlocked both of the locks. The jury, answering questions submitted to it by the court, found that the defendant was not guilty of any negligence which was a proximate cause of plaintiff’s injuries, and that the plaintiff was guilty of contributory negligence which was a proximate cause of his injuries. Judgment was accordingly entered for the defendant, and the Appellate Division has affirmed.

Plaintiff took an appeal as of right from the final Appellate Division order so as to bring up for review the Appellate Division order which reversed the judgment entered in favor of the plaintiff (see, CPLR 5601 [d]). This court then granted plaintiff’s motion for leave to appeal from the final Appellate Division order, thereby enabling him to raise alleged errors at the third trial and causing the prior Appellate Division order to be reviewed pursuant to CPLR 5501 (a).

Because the fire occurred prior to the adoption in New York of comparative fault principles (see, CPLR 1411), plaintiff was required to show that the defendant’s alleged negligence was the sole legal cause of his injuries and any degree of contributory negligence by the plaintiff would bar recovery (see, e.g., Fitzpatrick v International Ry. Co., 252 NY 127; Gill v Anderson, 39 AD2d 941). Thus, the Appellate Division, in the first of the two orders being reviewed, properly held that the trial judge had erred in removing from the case plaintiff’s actions which caused the fire. We also conclude, based on the evidence at the third trial, that, as a matter of law, plaintiff’s conduct prior to his attempt to leave the apartment unreasonably created a risk that he would be injured either by a fire or in attempting to escape from it, and this constituted contributory negligence requiring dismissal of his negligence action (see, e.g., Seidman v M & R Air Conditioning Corp., 15 NY2d 814; Nucci v Warshaw Constr. Corp., 12 NY2d 16; McAllister v New York City Hous. Auth., 9 NY2d 568).

Accordingly, plaintiff’s contentions as to alleged errors in the court’s charge at the third trial need not be addressed, as defendant’s motion to dismiss at the close of plaintiff’s case should have been granted.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Alec Boxill, Appellant.
    Argued January 8, 1986;
    decided February 6, 1986

      APPEARANCES OF COUNSEL

      Abraham Werfel for appellant.

      Elizabeth Holtzman, District Attorney (Leonard Joblove and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum of the Appellate Division (111 AD2d 399).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone. Taking no part: Judge Hancock, Jr.


text:
    Ralph Flint, Formerly Known as Izzy R. Finkelstein, et al., Appellants, v Janet Shaiman, Respondent.
    Decided February 6, 1986

      APPEARANCES OF COUNSEL

      Arthur Goldstein for appellant.
    Respondent precluded.
   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 (108 AD2d 777).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of Lydia K. Commissioner of the New York City Department of Social Services, Respondent; Lucille K., Appellant.
    Decided February 6, 1986

      APPEARANCES OF COUNSEL

      Spiros A. Tsimbinos for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Carolyn A. Reed of counsel), for respondent.

      Carol Goldstein and Lenore Gittis, Law Guardian.

   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, without costs, for reasons stated in the memorandum at the Appellate Division (112 AD2d 306).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of the Claim of Steven Cohen, Respondent. Blinder, Robinson & Company, Inc., Appellant; Lillian Roberts, as Commissioner of Labor, Respondent.
    Decided February 6, 1986

      APPEARANCES OF COUNSEL

      Carl M. Kuntz for appellant.

      Robert Abrams, Attorney-General (Frederick M. Paola of counsel), for Lillian Roberts, as Commissioner of Labor, respondent.

      William F. Reynolds for Steven Cohen, 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 (112 AD2d 687). We add only that unlike Matter of 12 Cornelia St. (Ross) (56 NY2d 895), the evidence here indicates the employer was able to exercise control over the activities of its salespersons beyond the requirements of applicable governmental regulation.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    Lottie Kravitz, Appellant, v County of Rockland et al., Defendants.
    Decided January 14, 1986

      APPEARANCES OF COUNSEL

      Susan Corcoran for appellant.

      Francis J. Young and Francis X. Young for County of Rockland, respondent.

      Louis D. Broccoli for Town of Clarkstown, 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. The Appellate Division did not abuse its discretion as a matter of law in denying plaintiff leave to serve late notices of claim (General Municipal Law § 50-e [5]).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone. Taking no part: Judge Hancock, Jr.


text:
    The People of the State of New York, Respondent, v Frank Fernandez, Appellant.
    Argued January 9, 1986;
    decided February 6, 1986

      APPEARANCES OF COUNSEL

      James J. Cruise, Jr., for appellant.

      John J. Santucci, District Attorney (Ray F. Cerreta of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings (People v Prescott, 66 NY2d 216, 220). CPL 710.70 (2) carves out a limited exception providing that an order finally denying a motion to suppress evidence may be reviewed on appeal from a final judgment of conviction, even one entered upon a guilty plea. That exception is unavailable to this defendant, who pleaded guilty before obtaining such an order. That he may have believed his plea would not result in such forfeiture is irrelevant, because, even if communicated to the court, a subjective belief cannot permit evasion of what otherwise would be the consequences of the plea (People v Mack, 53 NY2d 803, 806). Moreover, by pleading guilty before the hearing on his suppression motion, defendant precluded the making of a record and, in consequence, foreclosed the possibility of appellate review of his challenge to the admissibility of the People’s evidence (see, People v Charleston, 54 NY2d 622, 623).

The conclusion of the lower courts that no reason existed for Criminal Term to have suspected defendant of being an incapacitated person and therefore to have directed an examination pursuant to CPL article 730 finds support in the record, and cannot be reviewed further. Defendant’s remaining contention has not been preserved for our review.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed in a memorandum.


text:
    Johanna Zuckerberg, as Administratrix of the Estate of Harry J. Zuckerberg, Deceased, Appellant, v Blue Cross and Blue Shield of Greater New York, Respondent.
    Argued January 8, 1986;
    decided February 6, 1986

      APPEARANCES OF COUNSEL

      Stephen W. Schlissel and David Lazer for appellant.

      Sheila M. Rennert, John L. Shurtleff, Jerrold I. Ehrlich and Ellen Barrett Levin for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree that plaintiff failed to sustain her burden of proving that Hospital La Gloria provided "medical and surgical or obstetrical care” as contemplated by the definition of "hospital” contained in the Blue Cross community rated contract. Because the contract definition of "hospital” is clear and unambiguous, there is no basis here for application of the "substantial compliance” doctrine.

Thus, it is unnecessary to reach any of the other issues raised by plaintiff.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of U-Need-A-Roll Off Corp., Respondent, v New York State Tax Commission, Appellant.
    Decided February 6, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert Hermann and Kathleen Liston Morrison of counsel), for appellant.

      David Hirschberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the State Tax Commission that petitioner’s initial purchase of trash containers and compactors was not tax exempt reinstated.

Invoices submitted by petitioner corresponding to the audit period showed that petitioner’s customers were charged a flat fee for petitioner’s trash removal services without stating a separate rental charge for the customers’ use of the containers and compactors. Thus, there was substantial evidence to support the Commission’s determination that petitioner’s transactions with its customers did not involve a rental of personal property, and accordingly, the Commission could properly consider the initial purchase by petitioner of the property to be subject to sales tax (Tax Law § 1105 [a]; § 1101 [b] [4]). As we have had previous occasion to note, "[i]t should not fall within judicial 'decisional analysis’ to determine what is or is not a rental” (Matter of Albany Calcium Light Co. v State Tax Commn., 44 NY2d 986, 988).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the determination of the State Tax Commission reinstated in a memorandum.


text:
    Paul Smith, Appellant, v Dianne Stark et al., Defendants, and Pal Pools, Inc., Respondent.
    Argued January 7, 1986;
    decided February 6, 1986

      APPEARANCES OF COUNSEL

      Richard, E. Shandell for appellant.

      Terrence M. Quinlan for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, an 18-year-old college student, sustained serious physical injuries during a party when he dove or was thrown into the shallow end of an in-ground residential swimming pool. In this action to recover damages for these injuries, plaintiff contends that defendant Pal Pools, Inc., the manufacturer and installer of the pool, was negligent in failing to place depth markers at appropriate locations around the pool or take other measures to apprise prospective users of the comparative depth of the water.

Although plaintiff has no present recollection of exactly how he "entered” the pool, he was an experienced swimmer familiar with in-ground pools and with the proper method of diving into shallow water. At an examination before trial, he admitted, among other things, that he had observed a diving board at one end of the pool, which he knew to be the deep end, and a set of steps at the opposite end of the pool, which he knew to be the shallow end, and that he saw several people standing in the pool.

By virtue of plaintiff’s general knowledge of pools, his observations prior to the accident, and plain common sense, plaintiff must have known that, if he dove into the pool, the area into which he dove contained shallow water. On the other hand, if he was thrown, the manufacturer of the pool could in no respect be at fault (see, Ventricelli v Kinney Car Sys. Rent A Car, 45 NY2d 950; Mack v Altmans Stage Light. Co., 98 AD2d 468). The Appellate Division, therefore, properly concluded that the lack of depth warning devices was not the proximate cause of plaintiff’s injuries, and properly dismissed the complaint against Pal Pools (see, Dailey v Major Pool Equip. Corp., 30 NY2d 846; Colosimo v May Dept. Store Co., 466 F2d 1234; Caruso v Aetna Ins. Co., 186 So 2d 851 [La App]; Products Liability — Swimming Pools, Ann., 6 ALR4th 492).

The contention that plaintiff’s amnesia entitles him to prevail on a lesser degree of proof and precludes summary judgment against him is without merit. Our concern here is with proximate cause which may be resolved on evidence ascertainable from other sources. Moreover, the "burden of proof remains on the amnesiac plaintiff * * * to present prima facie evidence of defendant’s negligence before the * * * [lesser degree of proof] rule can be applied * * * Unless there is some evidence, even if weak, upon which a jury could find defendant negligent the complaint must be dismissed” (1 NY PJI2d 19 [1984]; see also, Schechter v Klanfer, 28 NY2d 228; Jarrett v Madifari, 67 AD2d 396, 403).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Pierre McKenzie, Appellant.
    Argued January 8, 1986;
    decided February 6, 1986

      APPEARANCES OF COUNSEL

      Edith Blumberg for appellant.

      Robert M. Morgenthau, District Attorney (Michael A. Schwartz and Bruce Allen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of criminal possession of a weapon in the second and third degrees. Relying upon Francis v Franklin (471 US —, 105 S Ct 1965), he contends that the statutory presumptions contained in Penal Law § 265.15 (3) and (4), concerning weapon possession and intent to use a weapon unlawfully against another, as well as the charge on the issue, to which no exception was taken, unconstitutionally shifted the burden of proof to him.

In Francis v Franklin (supra), the Supreme Court held that a trial court’s instructions in a murder trial, which advised the jury that the acts of a person of sound mind and discretion are presumed to be the product of the person’s will and that a person is presumed to intend the natural and probable consequences of his acts, created a mandatory presumption which impermissibly shifted the burden on the element of intent. The defect was not cured by the fact that the jury was also informed at one point that the presumption "may be rebutted.”

Francis thus reaffirmed earlier holdings in Sandstrom v Montana (442 US 510) and Ulster County Ct. v Allen (442 US 140) which require that a jury be clearly instructed that presumptions are "permissive.” Statutory presumptions in New York are permissive (see, People v Lemmons, 40 NY2d 505; People v Leyva, 38 NY2d 160), as the Supreme Court itself noted in Ulster County Ct. v Allen (supra). Penal Law § 265.15 (3) and (4) is constitutional (People v Lemmons, supra; People v Cruz, 34 NY2d 362, 370; People v Terra, 303 NY 332, appeal dismissed 342 US 938; People v Adamkiewicz, 298 NY 176).

The instructions to the jury explicitly indicated that the presumption was permissive. Defendant’s failure to object preserves no question of law concerning the sufficiency of the instructions (CPL 470.05; People v Contes, 60 NY2d 620; People v Cadorette, 56 NY2d 1007). The limited exception to the preservation requirement recognized in People v Patterson (39 NY2d 288, affd 432 US 197) is not applicable here, as the charge contained no express burden-shifting language and Francis v Franklin (supra) did not represent a departure from existing State and Federal law (see, People v Thomas, 50 NY2d 467).

Defendant’s remaining argument, that the ninth and tenth counts of the indictment were not sufficiently precise to apprise him of the conduct which was the subject of each accusation, is also without merit. The counts met the standard set forth in People v Iannone (45 NY2d 589), and, if additional information was significant to the preparation of the defense, the defendant should have requested a bill of particulars. Having failed to do so, he cannot now complain that the charges lacked specificity.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order affirmed in a memorandum.


text:
    In the Matter of Barton M. Perlbinder et al., Respondents, v New York City Conciliation and Appeals Board et al., Appellants.
    Decided February 6, 1986

      APPEARANCES OF COUNSEL

      Mary Ellen Cronly and Edward Chazin for New York City Conciliation and Appeals Board, appellant.

      Gustin L. Reichbach for Chrysoula Frangos, appellant.

      Lauri Cohen for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the Conciliation and Appeals Board (CAB) reinstated.

The CAB found that petitioner was one of 15 partners in the. 442-unit residential building at 85 East 85th Street. He occupied two adjoining apartments with his wife and child for six years. In 1974, he vacated the premises, with no intention of returning, and sublet the apartments, with furniture, to respondent Frangos who has occupied them ever since. Upon Perlbinder’s refusal to renew Frangos’ sublease, Frangos filed a complaint with the CAB. The CAB determined that the primary lease between Perlbinder and the owner was fabricated or altered and that Perlbinder was an illusory prime tenant. Upon the tender of an allowable rent increase, Fran-gos was to be given a renewal lease including the furniture.

In this article 78 proceeding, Supreme Court annulled the CAB determination, stating that the CAB’s finding of an illusory primary tenancy was "questionable” and that the required provision of furniture constituted a "taking” without due process of law. The Appellate Division unanimously affirmed, without opinion, and we granted leave to appeal.

The factual findings made by the CAB are supported by substantial evidence and may not be set aside on judicial review (see, e.g., Matter of Mid-State Mgt. Corp. v New York City Conciliation & Appeals Bd., 66 NY2d 1032, affg 112 AD2d 72 [1st Dept]). Moreover, its construction of Code of Rent Stabilization Association of New York City, Inc. § 62 (A) to confer rent stabilization protections on persons denominated "subtenants” in circumstances in which the primary tenancy is illusory, is neither inconsistent with the section’s language nor irrational or unreasonable. Accordingly, it should be respected by the courts (Matter of Mid-State Mgt. Corp v New York City Conciliation & Appeals Bd., supra; Matter of Cale Dev. Co. v Conciliation & Appeals Bd., 61 NY2d 976, affg 94 AD2d 229; Hivee Realty Corp. [New York City Conciliation & Appeals Bd.], NYLJ, May 5, 1982, p 6, col 1 [Sup Ct, NY County] [Alexander, J.]).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Titone and Hancock, Jr., concur in memorandum; Judge Alexander taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    In the Matter of Washington Square Institute for Psychotherapy and Mental Health et al., Respondents, v New York State Human Rights Appeal Board, Respondent, and Harilyn Rousso, Appellant.
    Argued January 9, 1986;
    decided February 6, 1986

      APPEARANCES OF COUNSEL

      Lewis M. Steel and Gina Novendstern for appellant.

      Derek Wolman for respondents.
   OPINION OF THE COURT

Memorandum.

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

Inasmuch as the alleged discriminatory act occurred prior to the effective date of the 1979 amendment to Executive Law § 292 (21), it was only necessary to demonstrate that complainant’s physical or medical condition in some way interfered with her performance in the training program in order to justify her dismissal. (See, Matter of Miller v Ravitch, 60 NY2d 527, 531-532; Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234, 237.) Here, it cannot be said that the Division’s determination, that complainant was unable sufficiently to participate in the program, was arbitrary and capricious. (See, State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276, 284.)

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Account of the Bank of New York, as Trustee under the Will of Langdon P. Marvin, Deceased, et al., Respondents; Langdon P. Marvin, Jr., Appellant.
    Submitted January 6, 1986;
    decided February 6, 1986
   Motion, treated as one for reargument of motion for leave to appeal, etc., dismissed for untimeliness (22 NYCRR 500.11 [g] [3]), with $20 costs. [See, 66 NY2d 601.]

Motion to dismiss an appeal taken from an order of the Appellate Division denying a motion for leave to appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    M. W. Zack Metal Company, Appellant-Respondent, v International Navigation Corporation of Monrovia et al., Defendants, Newcastle Protection & Indemnity Association et al., Respondents-Appellants, and Federal Insurance Company et al., Respondents.
    Submitted January 21, 1986;
    decided February 6, 1986
   Motion to dismiss cross appeal by respondents-appellants Newcastle et al. granted and cross appeal dismissed, with costs and $20 costs of motion, upon the ground that the cross appellants are not aggrieved parties within the meaning of CPLR 5511.


text:
    Michael J. Torpey, Inc., Appellant, v Consolidated Edison Company of New York, Inc., Respondent.
    Submitted January 21, 1986;
    decided February 6, 1986
   Motion for reconsideration of this court’s November 21, 1985 order dismissing the appeal herein dismissed for untimeliness (22 NYCRR 500.11 [g] [3]), with $20 costs. [See, 66 NY2d 915.]


text:
    Human Development Services of Port Chester, Inc., Respondent, v Zoning Board of Appeals of the Village of Port Chester, Appellant.
    Argued January 9, 1986;
    decided February 11, 1986

      APPEARANCES OF COUNSEL

      George A. O’Hanlon, Village Attorney, for appellant.

      Stephen Rogowsky for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. In so holding, however, we do not find it necessary to reach the public policy question discussed in the Appellate Division decision.

It was conceded by the Village Attorney before the Zoning Board of Appeals that the use proposed to be made of the premises by petitioner "is a single family dwelling under the statute” and that if the Board denied "the variance the building would have to either be torn down or the additional land would have to be obtained.” Petitioner’s presentation before the Board included the statement that it had sought unsuccessfully to purchase additional land from the adjoining owner. Its petition in this review proceeding reiterated the unavailability of additional land through purchase and quoted the Village Attorney’s concession that if additional land were not obtained the building would have to be torn down. The "answer” of the Board was in narrative form and contained no denials of the specific allegations of the petition; rather it sought dismissal of the proceeding on the ground that no practical difficulty existed and that the difficulty, if any existed, was self-created.

Under those circumstances, the statements in the petition, not having been denied, "are deemed admitted” (CPLR 3018 [a]), for, as CPLR 103 (b) makes clear, the procedure in special proceedings is the same as in actions and is governed by the CPLR provisions applicable to actions except as otherwise prescribed by law. CPLR 7804 (e) contains no contrary prescription, and although it does authorize the court to order any defect or omission in the answer to be supplied, no such order was asked for or made.

As the matter reaches us, therefore, the Board is bound by formal judicial admissions that additional land cannot be purchased and that the residence on the land will have to be torn down if petitioner is to use the property for the permitted use for which it was purchased (Richardson, Evidence § 216 [Prince 10th ed]; Fisch, New York Evidence § 805 [2d ed]; McCormick, Evidence § 265 [3d ed]). As against that the Board’s "answer” suggests that denial of the requested rear-yard variance, without which petitioner could not install a driveway along the rear lot line, necessary to reach the proposed parking area, was proper because (1) so to locate the driveway would detract from the turn-of-the-century house and require removal of part of its old stone fence, which would not be aesthetically pleasing, (2) there would be insufficient parking with resultant environmental impact, and (3) the difficulty in which petitioner found itself was self-created, it having purchased with knowledge that the property was without a driveway and that its rear-yard setback was but 21.4 feet rather than the 30 feet required by the ordinance.

Aside from the fact that the Board made no such findings, none of the asserted reasons is sufficient to sustain denial of the permit in the . face of the admissions referred to above. To require removal of the house in order to retain the charm of it and its old stone fence under the facts of this case clearly is capricious. As for parking, petitioner offered to provide whatever the Board required. Moreover, for purposes of local laws such as the Port Chester zoning ordinance, petitioner’s use is a family unit (Mental Hygiene Law § 41.34 [f]), for which the zoning ordinance (Port Chester Code § 98-14 [C] [1]) does not require more than the parking spaces petitioner proposed to provide.

Nor does the fact that petitioner was aware prior to consummation of its purchase contract that the village had raised a question concerning the rear setback sustain denial of the requested variance. That a difficulty may be self-created is a factor to be taken into account, but as we held in Matter of De Sena v Board of Zoning Appeals (45 NY2d 105, 108): "A finding of self-created hardship normally should not in and of itself justify denial of an application for an area variance. The basic inquiry at all times is whether strict application of the ordinance in a given case will serve a valid public purpose which outweighs the injury to the property owner” (citations omitted). For the reasons already noted, no valid public purpose would be served by denial of the variance and the injury to the property owner (removal of the existing building and erection of a new one 8.6 feet farther away from the rear line) therefore cannot have been found to have been outweighed. The Board’s denial of a variance of the rear setback provision of the ordinance was, therefore, arbitrary and capricious.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr., concur; Judge Titone taking no part.

Order affirmed, with costs, in a memorandum.

       The reference was, apparently, to Mental Hygiene Law § 41.34 (f), which provides that, "A community residence established pursuant to this section and family care homes shall be deemed a family unit, for the purposes of local laws and ordinances.”


text:
    In the Matter of MFY Legal Services, Inc., Appellant, v Edward R. Dudley et al., Respondents.
    Argued January 7, 1986;
    decided February 11, 1986

      APPEARANCES OF COUNSEL

      Stephen Myers, Norman Siegel and Daniel L. Greenberg for appellant.

      Joseph L. Ciasen, III, and Owen McGivern for respondents.

      Robert Abrams, Attorney-General (Frederic L. Lieberman, Howard L. Zwickel, O. Peter Sherwood and Robert Hermann of counsel), for State of New York and another, amici curiae.

      Conrad A. Johnson, Mary Marsh Zulack, John E. Kirklin and Scott A. Rosenberg for Legal Aid Society of New York, amicus curiae.

      Kathleen Peratis for New York Civil Liberties Union, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

This is an article 78 proceeding in the nature of prohibition instituted by petitioner, a not-for-profit legal services corporation, against respondents, Justices of the Appellate Term, First Department. Petitioner seeks to prohibit respondents from issuing ex parte orders that (1) direct entry of final judgment pursuant to CPLR 5704 (b) in summary proceedings seeking possession of real property or (2) forbid Civil Court Judges from holding inquests in such proceedings. Although several issues are presented on appeal, the issue of standing is dispositive.

Petitioner does not have standing to maintain this proceeding in its own right because it has failed to demonstrate that it has suffered any injury in fact as a result of respondents’ actions (see, Matter of Dental Socy. v Carey, 61 NY2d 330, 334). Its claim that the entry of default judgments without inquests results in a greater demand for its services than holding inquests is too speculative to give rise to a cognizable interest and its large volume of litigation in landlord-tenant disputes does not confer standing upon it. In so urging, petitioner relies on Matter of Morgenthau v Cooke (56 NY2d 24) but that decision does not support its contention. In Morgenthau we held that the District Attorney had standing to challenge the manner of designating Judges to the Supreme Court in New York City not because of the large volume of litigation he engaged there but because as a public officer of those courts he had a duty to ensure that the appointment of judges complied with constitutional requirements (see, id., at p 30). Finally, no "impenetrable barrier”, the situation mentioned in Boryszewski v Brydges (37 NY2d 361, 364), prevents judicial scrutiny of respondents’ actions if we refuse to accord petitioner standing because the issues raised on this appeal can be presented on a motion to vacate the default judgment (CPLR 5015 [a]) and on an appeal from a denial of that motion.

Petitioner also lacks standing to proceed as a representative of its clients. National Org. for Women v State Div. of Human Rights (34 NY2d 416), Matter of Douglaston Civic Assn. v Galvin (36 NY2d 1) and Matter of Dental Socy. v Carey (61 NY2d 330, supra), relied upon by petitioner, are to be distinguished because in each of those cases at least one member of the association had standing whereas here none of petitioner’s lawyer members has standing. Unless its members have standing, petitioner can claim none as their representative (see, Matter of Dental Socy. v Carey, supra, at p 333). In reality, what petitioner is attempting to do is to sue on its own behalf for a declaration of its potential clients’ rights and it may not do so (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 15; Hiscock Legal Aid Socy. v Hennessy, 101 Misc 2d 1046, 1048-1049, affd 78 AD2d 775, lv denied 52 NY2d 703).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Judgment affirmed, without costs, in a memorandum.


text:
    Allen & Company Incorporated, Respondent, v Shearson Loeb Rhoades, Inc., Appellant.
    Argued January 8, 1986;
    decided February 11, 1986
    APPEARANCES OF COUNSEL

      Gerald Kerner and Susan E. Amron for appellant.

      David J. Freeman, David R. Foley and Mark H. Moore for respondent.
   OPINION OF THE COURT

Memorandum.

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

As of August 15, 1980 plaintiff, Allen & Company, owned approximately 300,000 common shares of Pancontinental Mining Limited, an Australian company. The shares were held on Allen’s behalf by defendant, Shearson Loeb Rhoades, Inc., in a foreign depository account in the name of ANZ Nominees, in Australia. By letter dated August 15, 1980, ANZ informed Shearson that Pancontinental was offering its shareholders as of that date shares and options in Pancontinental Petroleum Limited. The offering was not registered with the Securities and Exchange Commission. ANZ’s letter bore the stamped legend, "urgent, this is an important letter which requires your prompt attention,” and concluded: "Instructions must be in our hands by 4th September, 1980, at the latest. In the absence of your specific instructions reaching this office by that date, we will lapse your entitlements.”

Shearson did not, however, forward this letter to Allen. According to Allen, a Shearson broker first mentioned the offer offhandedly and without full particulars in a telephone conversation just before the offer expired, adding that Allen as an American citizen could not subscribe. By the time Allen received more information, consulted an attorney and informed Shearson that it wanted to subscribe, the offer had expired.

Allen sued for damages, but on Shearson’s demand the matter was submitted to arbitration. Shearson’s defense in the arbitration centered on two law issues. First, Shearson contended it could not legally have transmitted the letter or its contents to Allen because the offering was unregistered and that, had it done so, it would have violated section 5 (c) of the Securities Act of 1933 (15 USC § 77e [c]), which makes it unlawful for any person directly or indirectly to offer to sell any unregistered security. In the alternative, Shearson claimed that even had Allen timely received the letter, it could not legally have exercised its right to buy unregistered securities in the United States, and thus suffered no harm. The arbitrators awarded Allen damages and Shearson moved, pursuant to CPLR 7511 (b) and the Federal Arbitration Act (9 USC § 10), to set aside the award on the grounds that it was contrary to public policy as set forth in the Federal securities laws and irrational. Shearson’s motion was granted by Special Term but the Appellate Division reversed and reinstated the award.

Shearson’s position on the present motion, at bottom, rests on the very same two law issues it unsuccessfully tendered to the arbitrators — that it could not legally have transmitted the offer, and that Allen could not legally have accepted it; therefore, according to Shearson, an award of damages based on such illegal conduct cannot stand. But even assuming that an arbitration award were subject to vacatur on the ground that the arbitrators erroneously decided the questions of law submitted by the parties (see, Matter of Maye [Bluestein] 40 NY2d 113, 118), and even assuming that an arbitration award under the Federal Arbitration Act could be vacated on grounds other than those specified by statute (9 USC §§ 2, 10 [a]-[d]), Shearson’s own admissions in the arbitration contradict its assertions on this motion that any communication or acceptance of the offer would have been illegal.

Whether or not Shearson’s transmittal of the August 15, 1980 letter to its customer would have constituted an offer to sell securities in violation of section 5 (c) of the Securities Act of 1933, Shearson’s own general counsel, testifying in the arbitration, acknowledged that a broker "can always legally speak to someone about an offering.” He testified that Shear-son did not consider an oral communication regarding an offering a violation of section 5 (c), and that Shearson had no policy barring its brokers from orally informing customers of such offerings. Indeed, Shearson offered testimony that its agent had in fact orally communicated the substance of Pan-continental’s offer shortly after its receipt, which conflicted with Allen’s proof that the communication was incomplete and untimely. Similarly, Shearson’s own witness and correspondence indicated that Allen could have made arrangements to subscribe to the rights, thus contradicting the contention that Allen suffered no damage because it could not lawfully have accepted the offer.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order affirmed, with costs, in a memorandum.


text:
    Richard Zletz, Appellant, v Herbert Wetanson et al., Respondents.
    Decided February 11, 1986

      APPEARANCES OF COUNSEL

      Sheldon V Burman for appellant.

      Stephen Ross for Herbert Wetanson and others, respondents.

      Ira E. Garr for Hisae Vilca, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by reinstating the complaint as against defendants Wetanson, Civin and Epstein and, as so modified, affirmed.

In March 1983, approximately two years after commencing this action for breach of oral partnership agreements and conspiracy, plaintiff began a flurry of discovery by securing the depositions of defendants Epstein and Vilca and serving upon defendants a set of interrogatories and a notice to produce documents. After some 14 months of defendants’ unsuccessful efforts to secure disclosure from plaintiff, and after a court order compelling plaintiff to answer defendant Vilca’s interrogatories, Special Term dismissed the complaint, pursuant to CPLR 3126, as against all four defendants. The Appellate Division affirmed, without opinion.

Dismissal of the complaint as against defendant Vilca for plaintiff’s failure to answer the interrogatories was well within Special Term’s discretion. The record supports Special Term’s determination that plaintiff, through delays and other strategies, engaged in a course of conduct designed to yield one-sided disclosure in his favor, culminating in his disregard of an order compelling him to answer defendant Vilca’s interrogatories, which were found to be relevant and appropriate (cf. Fellner v Texas Mexican Ry. Co., 76 AD2d 820; Commissioners of State Ins. Fund v News World Communications, 74 AD2d 765). Where a party in these circumstances disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint is within the broad discretion of the trial court (Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 571-572; Laverne v Incorporated Vil. of Laurel Hollow, 18 NY2d 635, 637-638; Battaglia v Hofmeister, 100 AD2d 833, 834; see, CPLR 3103 [a]; Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406-407).

Dismissal of the complaint as against the remaining three defendants, however, was an abuse of discretion. Although similarly affected by plaintiff’s actions, these defendants never sought an order compelling disclosure and Special Term made no ruling that material sought by these defendants “ought to have been disclosed” (CPLR 3126). In fact, Special Term had viewed disclosure with respect to these three defendants as stayed by virtue of CPLR 3214 (b). The complaint should therefore be reinstated as to these defendants.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Niles A. Edmead, Appellant, v Robert J. McGuire, as Chairman of the Board of Trustees of the New York City Police Department Pension Fund, Article II, et al., Respondents.
    Decided February 11, 1986

      APPEARANCES OF COUNSEL

      James M. Wright for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Karen Hutson of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that the determination of the Board of Trustees became "final and binding” (CPLR 217) and, therefore, that the four-month limitation period commenced to run, on the date petitioner was notified of the Board’s decision. A challenged determination is final and binding when it "has its impact” upon the petitioner who is thereby aggrieved (Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352, 357; see also, Matter of Biondo v State Bd. of Parole, 60 NY2d 832, 834; Matter of Martin v Ronan, 44 NY2d 374, 380-381; Matter of Queensborough Community Coll, v State Human Rights Appeal Bd., 41 NY2d 926). The limitations period does not commence to run where the agency has created the impression that the determination, albeit issued, was intended to be nonconclusive (see, Mundy v Nassau County Civ. Serv. Commn., supra, p 358; Matter of Castaways Motel v Schuyler, 24 NY2d 120, 126). However, where the determination is unambiguous and its effect certain, the statutory period commences as soon as the aggrieved party is notified (see, Matter of Biondo v State Bd. of Parole, supra, p 834). Contrary to petitioner’s contention, the time limitation is not somehow tolled until the action directed by the determination has already been taken (Matter of Queensborough Community Coll. v State Human Rights Appeal Bd., supra; see also, Matter of Allstate Ins. Co. v Stewart, 29 NY2d 925, affg 36 AD2d 811).

Here, although petitioner’s actual retirement was delayed until October 27, 1982 when his terminal leave was exhausted, the impact of the determination on the date of its issuance and petitioner’s notification thereof, September 8, 1982, was in no way rendered tentative, uncertain or otherwise less final and binding. Consequently, the statutory period commenced on September 8, 1982, and the proceeding, commenced more than five months later, on February 18, 1983, was correctly dismissed by the Appellate Division as untimely.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., 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.


text:
    Alco Gravure, Inc., et al., Appellants, v Knapp Foundation, Respondent.
    Submitted February 3, 1986;
    decided February 11, 1986
   Motion to amend the remittitur, etc., denied. The denial of plaintiffs’ motion for a preliminary injunction was not before this court. [See, 64 NY2d 458.]

Judge Alexander taking no part.


text:
    In the Matter of Charles Hansen, Jr., Appellant, v City of Gloversville, Respondent.
    Submitted February 3, 1986;
    decided February 11, 1986
   Motion for reargument denied (see, Specialty Foods Corp. v State of New York, 37 NY2d 751). [See, 66 NY2d 1036.]


text:
    New York State Club Association, Inc., Appellant, v City of New York et al., Respondents.
    Decided February 11, 1986
   Appeal transferred to the Appellate Division, First Department, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).

Judge Kaye taking no part.


text:
    In the Matter of Orchards Associates et al., Appellants, v Planning Board of the Town of North Salem, Respondent. Concerned Residents of North Salem, Inc., Intervenor-Respondent.
    Decided February 11, 1986
   Appeal dismissed, without cost, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right (CPLR 5601, as amended by L 1985, ch 300, §1).


text:
    1014 Fifth Avenue Realty Corp., Respondent, v Manhattan Realty Company, Appellant.
    Argued January 6, 1986;
    decided February 13, 1986

      APPEARANCES OF COUNSEL

      Richard B. Cooper for appellant.

      Edward J. Ross and James J. Sabella for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and plaintiff’s motion for summary judgment denied.

Plaintiff is correct in arguing that its faithful performance of the covenants, conditions and agreements required to be performed by it is a condition precedent to its exercise of the purchase option in the lease which need not be pleaded in its complaint (CPLR 3015 [a]). It does not necessarily follow that it need not be proved as part of its application for summary judgment, for the burden of proof of faithful performance rests upon it to the extent that defendant’s answer denies such performance "specifically and with particularity” (id.). Its claim that defendant did not deny specifically and with particularity is, however, in error for paragraph 14 of defendant’s answer specifically denied performance of the condition and paragraph 15 particularized 10 different respects in which faithful performance was lacking.

CPLR 3015 (a) did not require defendant to specify each particular incident within the 10 categories in order to impose upon plaintiff the burden of proving performance. When particularity as to such minutiae is required, the CPLR specifically so states (3015 [b] — the State, country or government of incorporation; 3016 [a] — the particular words complained of in a libel action; 3016 [c] — the time and place of each act complained of; 3016 [e] — the substance of foreign law relied upon; 3016 [f] — "plaintiff may set forth and number * * * the items of his claim and the reasonable value or agreed price of each” [emphasis supplied]). As used in CPLR 3015 (a), therefore, "particularity” requires no more than is set forth in paragraph 15 of defendant’s answer. It follows, under familiar principles of law, that plaintiff’s failure to present evidentiary proof of faithful performance required denial of its motion (Westmount Intl. Hotels v Sear-Brown Assoc., 65 NY2d 618, 619) regardless of the sufficiency of the opposing papers (Wine-grad v New York Univ. Med. Center, 64 NY2d 851, 853).

Nor does the fact, relied upon by the Appellate Division, that "defendant does not dispute that plaintiff is entitled to renew” the lease (111 AD2d, at p 80) provide a basis for granting plaintiff summary judgment with respect to the purchase option. The quoted words are based on the statement in defendant’s brief to Special Term that, "The lease still has 52 years to run” in a point headed "No forfeiture of a substantial investment by plaintiff is threatened.” We need not decide whether there is a difference between the option to renew and the option to purchase under this lease or in law, for, in light of the nonwaiver clause of the lease, the lessor, if it saw fit to do so, could treat the claimed breaches differently, even if the language of the respective options did not otherwise permit it to do so. Even were that not so, however, a concession arguendo contained in a brief on a motion for summary judgment is not a formal judicial admission binding the party making it to the very result he is arguing against (Modern Pool Prods, v Rudel Mach. Co., 58 Misc 2d 83, 86; Berner v British Commonwealth Pac. Airlines, 346 F2d 532, 542, cert denied 382 US 983; see, CPLR 2104).

Nor can we conclude from the affidavits alone that plaintiff’s deviations from the requirements of the lease were de minimis. Restoration Realty Corp. v Robero (58 NY2d 1089, affg 87 AD2d 301), on which the Appellate Division majority relied in so concluding, is clearly distinguishable, for defendant has not, as did the landlord there involved, stood by while the tenant made extensive repairs and then "embarked on a campaign of defeating the contractual rights of [the tenant] who has acted in good faith” (87 AD2d, at p 305). Here there are triable issues concerning the extent of plaintiff’s failure faithfully to perform the conditions of the lease upon which exercise of the option to purchase depended and with respect to the landlord’s actions or failure to act with respect to the numerous defaults evidenced by the affidavits (Jefpaul Garage Corp. v Presbyterian Hosp., 61 NY2d 442; cf. Key Intl. Mfg. v Stillman, 66 NY2d 924, affg 103 AD2d 475). Whether equity should intervene in plaintiff’s favor must, therefore, await a trial.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur in memorandum; Judge Hancock, Jr., taking no part.

Order reversed, etc.

      . The Appellate Division memorandum does not specify the source of the statement, but both briefs submitted to us refer to the quoted statement as the source.

      . The condition of the renewal option is that "the Lessee shall fulfill and duly perform the conditions, covenants and terms”; the purchase option is "conditioned upon the faithful performance by the Lessee of all covenants, conditions and agreements”. (Emphasis supplied.)


text:
    Rosalynd Hornstein, Appellant, v Edward H. Wolf et al., Respondents, et al., Defendants.
    Decided February 13, 1986

      APPEARANCES OF COUNSEL

      Henry Conan Caron for appellant.

      David B. Horowitz, respondent pro se, and for Edward H. Wolf and another, respondents.

      Peter L. Contini for Herbert Nason and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

Our examination of the record persuades us, contrary to plaintiff’s belated contention, that defendant Petker did move to dismiss for failure to state a cause of action.

As to the merits of the appeal, it is evident that plaintiff has failed to plead a cause of action for either malicious prosecution or abuse of process. The cause of action for malicious prosecution is defective because of the failure specifically to plead facts sufficient to overcome the presumption of probable cause for the prior temporary restraining orders which arose as a result of the fact that those temporary restraining orders were necessarily passed upon initially by the issuing court (see, Burt v Smith, 181 NY 1; see also, Phillips v City of Syracuse, 57 NY2d 996; 2 NY PJI 813).

With respect to the abuse of process claim, plaintiff has failed to allege any actual misuse of the process to obtain an end outside its proper scope (cf. Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397).

Finally, denial by the Appellate Division of a right to replead did not abuse its discretion for the record viewed as a whole indicates that plaintiff cannot plead a sound cause of action (see, ATI, Inc. v Ruder & Finn, 42 NY2d 454, 461).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., 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.


text:
    The People of the State of New York, Appellant, v Harold Bendell, Respondent.
    Decided February 13, 1986

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Jeffrey Scott Sarokin of counsel), for appellant.

      Steven J. Hyman 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 reversed and case remitted to the Appellate Division, First Department, for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]). We agree with the dissenting Justices below (111 AD2d 87, 89-91) that any error of the prosecutor, in referring to his pretrial involvement in the case, was harmless (see, People v Paperno, 54 NY2d 294; People v Ortiz, 54 NY2d 288) and that the prosecutor’s cross-examination of defendant’s character witnesses was proper (see, People v Kuss, 32 NY2d 436). There is no ground, therefore, for holding that defendant has been deprived of his fundamental right to a fair trial by the prosecutor’s conduct.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of 97 Columbia Heights Housing Corp., Respondent, v Board of Estimate of the City of New York et al., Appellants. Brooklyn Heights Association, Intervenor-Appellant.
    Decided February 13, 1986

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Gillian Sacks of counsel), for appellants.

      Domenick L. Gabrielli and J. Daniel Mahoney for respondent.

      John Moss Hinchcliff for intervenor-appellant.
   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. Special Term properly concluded that the New York City Board of Estimate erred in overturning a determination of the New York City Board of Standards and Appeals. The Board of Estimate’s review powers are limited to whether there is substantial evidence to support the Board of Standards and Appeals determination (NY City Charter § 668 [c]). Review of the record demonstrates that substantial evidence supports the Board of Standards and Appeals determination (Victory Blvd. Assoc. v City of New York, 58 NY2d 900).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of Michael Johnson, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Decided February 13, 1986

      APPEARANCES OF COUNSEL

      Norman P. Effman and Leigh E. Anderson for appellant.

      Robert Abrams, Attorney-General (Leslie B. Beustadt, Robert Hermann and Peter H. Schiff of counsel), for respondents.
   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, without costs (see, Matter of Perez v Wilmot, 67 NY2d 615; People ex rel. Vega v Smith, 66 NY2d 130).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone. Taking no part: Judge Hancock, Jr.


text:
    Jane Marvel et al., Appellants, v Capital District Transportation Authority et al., Respondents.
    Decided February 13, 1986

      APPEARANCES OF COUNSEL

      Salvatore D. Ferlazzo for appellants.

      Kenneth G. Varley and Fred J. Hutchison for respondents.
   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, without costs, for reasons stated in the memorandum at the Appellate Division (114 AD2d 612).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of Katherine Patrick et al., Respondents, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, et al., Appellants.
    Argued January 10, 1986;
    decided February 13, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert J Schack, Robert Hermann and Maryellen Weinberg of counsel), for Cesar A. Perales, as Commissioner of the New York State Department of Social Services, appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Trudi Mara Schleifer of counsel), for James Krauskopf, as Commissioner of the New York City Department of Social Services, appellant.

      Floyd S. Weil for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by granting respondent Perales’ motion to dismiss the petition as to him, and by granting respondent Krauskopf s motion to dismiss the petition to the extent that it pertains to the denial of petitioner’s application for a medical subsidy. As so modified, the order should be affirmed, with costs to petitioners.

We reject respondent Krauskopfs contention that the petition for the adoption maintenance subsidy should be dismissed as time barred under CPLR 217. The communication dated December 18, 1975 from the city Department of Social Services to petitioners regarding their application for the maintenance subsidy was not a "final and binding” determination. The communication did not approve or disapprove that application but, rather, it implied that a final decision was being withheld pending receipt of additional information from petitioners (see, Matter of Martin v Ronan, 44 NY2d 374, 381; Matter of Castaways Motel v Schuyler, 24 NY2d 120, 126).

Nor can the final approval of Alicia’s adoption on September 1, 1976 — a determination in the separate adoption proceeding — be considered a "final and binding” determination of their maintenance subsidy request, thus triggering the CPLR 217 four-month limitation. The adoption decree did not purport to be a denial of the subsidy request, and petitioners were not in any way apprised of the Commissioner’s contention that the adoption decree had the legal effect of cutting off their rights to the subsidy (see, Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352, 358). Finally, because the approval of the adoption on September 1, 1976 was a determination favorable to petitioners in that proceeding, they could certainly not claim to have been "aggrieved” thereby (see, Matter of Martin v Ronan, supra, at p 381).

We agree with Special Term that nothing in Social Services Law former § 398 (6) (k) (repealed and replaced by Social Services Law §§ 450-458, L 1977, ch 865) restricted entitlement to an adoption subsidy for the benefit of children whose adoptions had not yet been approved. To the extent that the regulation (18 NYCRR former 450.7 [g]), now repealed, excluded from the class of beneficiaries all children already adopted, even where a preadoption application had been made, it contravened the statute and was invalid.

Respondent Krauskopfs motion to dismiss the CPLR article 78 proceeding pertaining to the medical subsidy allowance under Social Services Law § 454 should have been granted and that part of the petition dismissed. By its terms, section 454, which was added by Laws of 1977 (ch 865), applies only to children who have been adopted or placed out for adoption on or after the effective date of the statute (Nov. 9, 1977). The adoption in the instant case having occurred on September 1, 1976, petitioners had no right under the new statute to such an allowance.

Finally, respondent Perales’ motion to dismiss the CPLR article 78 proceeding should have been granted and the petition dismissed as to him. There is no question that petitioners’ application for the maintenance subsidy allowance was governed by Social Services Law former § 398 (6) (k). Under this section there was no right for an aggrieved applicant to appeal a local determination to the State Social Services Department except in limited circumstances not applicable here.

Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur; Judge Kaye taking no part.

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to petitioners. Question certified answered in the negative.