text:
    In the Matter of Solomon Zinn et al., Respondents, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Appellants.
    Argued June 12,1981;
    decided July 6, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Diane De Furio Foody and Shirley Adelson Siegel of counsel), for appellants.

      Joseph F. Carlino and Julian Jawitz for respondents.
   OPINION OF THE COURT

Judgment reversed, with costs, and the determination of the State Tax Commission reinstated for the reasons stated in the dissenting memorandum by former Justice Louis M. Greenblott at the Appellate Division (77 AD2d 725, 726).

Chief Judge Cooke and Judges Jasen, Jones, Fuchs-berg and Meyer concur; Judges Gabrielli and Wachtler dissent and vote to affirm for the reasons stated in the majority memorandum at the Appellate Division (77 AD2d 725).


source: Caselaw Access Project

license: Public Domain

text:
    Di Falco, Field & Lomenzo, Respondent, v Newburgh Dyeing Corp., Appellant.
    Decided July 6, 1981

      Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, affirmed.
    APPEARANCES OF COUNSEL

      Leonard N. Shapiro for appellant.

      David A. Field for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. Defendant failed to make an evidentiary showing sufficient to raise a triable issue of fact.

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


text:
    Paul A. Anostario, Respondent, v Vincent E. Vincinanzo et al., Appellants.
    Submitted June 8, 1981;
    decided July 6, 1981
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that an appeal as of right, based on an illusory stipulation for judgment absolute, does not lie (see Cohen and Karger, Powers of the New York Court of Appeals, § 62).


text:
    The People of the State of New York ex rel. Alonzo Derrick, Appellant, v Eugene LeFevre, Respondent.
    Submitted June 15, 1981;
    decided July 6, 1981
   Motion for leave to appeal dismissed for failure to comply with rule 500.9(a) (1) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.9 [a] [1]).


text:
    In the Matter of Robert E. D., Also Known as Everton R. (Anonymous), a Person Alleged to be a Juvenile Delinquent, Respondent. City of New York, Appellant.
    Decided July 6, 1981
   Appeal dismissed without costs, by the Court of Appeals, sua sponte, upon the ground that, for reasons of public policy this is not a proper case for an appeal on a stipulation for judgment absolute (see Cohen and Karger, Powers of the New York Court of Appeals, § 64, pp 286-289; cf. Matter of Society of N. Y. Hosp. v New York State Labor Relations Bd., 34 NY2d 838; Weiman v Weiman, 295 NY 150).


text:
    The People of The State of New York, Respondent, v Macio Ennis, Appellant.
    Submitted June 1, 1981;
    decided July 6, 1981
   Motion to dismiss the appeal taken by notice of appeal served on or about May 13, 1981 granted and the appeal dismissed upon the ground that it does not lie as of right (CPL 450.90, 460.20).


text:
    Federal Insurance Company, Respondent, v Alexander D. Walker, Jr., Individually and as Administrator of the Estate of Helen E. Walker, Deceased, Defendant-Appellant and Third-Party Plaintiff-Respondent. Union Camp Corporation et al., Third-Party Defendants-Appellants.

      Submitted June 29, 1981;
    decided July 6, 1981
   Motion by respondent for reargument denied. Motion by third-party defendants-appellants for reargument denied. [See 53 NY2d 24.]

Judge Meyer taking no part.


text:
    Thomas J. Lynch, Appellant, v Elizabeth A. Lynch, Respondent.
    Submitted June 15, 1981;
    decided July 6, 1981
   Appeal marked “withdrawn by appellant”. Motion to stay appellant from proceeding on the appeal marked “withdrawn”. Motion for counsel fees for defense of an appeal to this court dismissed upon the ground that no appeal is now pending in this court.


text:
    Hugh J. McGraw, Appellant, v Helene R. T. B. McGraw, Respondent.
    Submitted June 15, 1981;
    decided July 6, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 43).


text:
    Roger L. Rainbow, Appellant, v Albert Elia Building Co., Inc., et al., Respondents.
    Submitted June 1, 1981;
    decided July 6, 1981
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [i]).


text:
    Ronald H. Laberge, P. C., Respondent, v Town of Inlet, Appellant.
    Submitted June 15, 1981;
    decided July 6, 1981
   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 action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, §40, p 161).


text:
    The People of The State of New York, Respondent, v Clyde Stephens, Appellant.
    Submitted June 15, 1981;
    decided July 6, 1981
   Motion to dismiss the appeal denied with leave to renew upon argument of the appeal.


author: Meyer, J.

text:
    First Colonie Company, Respondent, v John J. A. Lyons, as Commissioner of the Albany County Department of Health, et al., Defendants. Attorney-General of the State of New York, Intervenor-Appellant.
    Argued June 12,1981;
    decided July 7, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Stanley Fishman and Shirley Adelson Siegel of counsel), pro se.

      Thomas D. Latin for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (74 AD2d 696).

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

Meyer, J.

(dissenting). It is not entirely clear from the Appellate Division’s memorandum whether it decided in favor of plaintiff on the law or on the facts, but since its decision is erroneous in either event and should be reversed, I respectfully dissent.

What plaintiff’s complaint requested was judgment “declaring that § 6.16 of the ‘State Sanitary Code’ does not require an indoor pool to be fenced” and, if a contrary declaration was made, a declaration that, since defendants had approved the plans submitted by plaintiff despite the fact that they did not provide for a fence, it would be unconstitutional to apply the fencing requirement to plaintiff’s pool. Justice George L. Cobb, considering section 6.1 of the Sanitary Code together with section 6.16, concluded that the latter section did apply to an indoor pool and that neither constitutional impediment nor estoppel barred defendants’ enforcement of the provision. He, therefore, entered judgment declaring section 6.16 “valid, constitutional and fully applicable to plaintiff’s inn.”

The Appellate Division reversed in a memorandum which after quoting the first sentence of section 6.16 (“Artificial swimming pools shall be protected by a fence, wall, building, enclosure or solid wall of durable material”) stated that “A fair reading of this section compels us to conclude that it does not require the instant pool to be fenced. The pool is protected by the building wherein it is located which, in our view, is a compliance with the language of the statute.” It directed judgment declaring that “section 6.16 of the State Sanitary Code does not require that plaintiff’s indoor pool be protected by a fence.”

The reference in the memorandum to “the instant pool” and the direction for judgment declaring that “plaintiff’s indoor pool” need not be protected suggest that the Appellate Division decided the matter on the facts rather than the law. While it was not foreclosed by the demand for judgment in the complaint (Cahill v Regan, 5 NY2d 292, 298; Martin v State Liq. Auth., 43 Misc 2d 682,690 [Cooke, J.], affcl on opn below 15 NY2d 707), its decision must be reversed because erroneous whether made on the law or the facts.

It is erroneous on the law because the Appellate Division ignored subdivision b of section 6.1 of the code. That subdivision defines “artificial swimming pool” to mean “a structure intended for bathing or swimming purposes * * * located either indoors or outdoors”. Inasmuch as the second sentence of section 6.16 shows the major purpose of the fencing requirement to be the protection of small children, and subsection b of section 6.1 makes clear that an artificial swimming pool can be located either indoors or outdoors, the section cannot be interpreted to exclude every pool that is located indoors. The Appellate Division’s interpretation might be correct if one considered only the first sentence of section 6.16, but is clearly incorrect when sections 6.1 and 6.16 are considered together.

It is, of course, possible that the building which encloses a pool so protects it as to achieve the purpose of the code section and obviate the necessity for a separate fence enclosure. That, however, could be determined only as a matter of fact. The affidavits submitted by the commissioner establish that the swimming pool in question is in a large center court of the hotel, that the courtyard is the main corridor between the lobby and most of the rooms in the hotel, that the pool is easily accessible to anyone entering the courtyard and that “there is no railing, fence or other barrier surrounding the pool so that anyone using the courtyard could accidentally wander into the pool area.” Plaintiff’s responsive affidavit contains the conclusory statement that “No children, save those accompanied by adults, come in contact with plaintiff’s pool.” The only relevant factual statement is that “The plaintiff’s pool is small in size and is not designed to attract swimmers, but rather to provide eye-appeal as a part of the total aesthetics.”

As we made clear in Zuckerman v City of New York (49 NY2d 557, 560): “[W]here the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action”. The commissioner’s papers establish that plaintiff’s indoor pool presents a hazard such as the code section was designed to obviate and plaintiff’s responsive papers are wholly insufficient to demonstrate a triable issue, the size of the pool alone being insufficient to take the pool beyond the reach of the section. The commissioner was, therefore, entitled to summary judgment declaring section 6.16 applicable to the pool in plaintiff’s inn.

For the foregoing reasons, I would reverse the order of the Appellate Division and reinstate the judgment of the Supreme Court.

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v Edwin De Jesus Martinez, Appellant.
    Decided July 7, 1981

      APPEARANCES OF COUNSEL

      Judith Zerden, Bertrand J. Kahn and William E. Heller-stein for appellant.

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

On summary consideration, order affirmed. It cannot be ■ said the trial court abused its discretion in refusing to grant a continuance in the in camera hearing held to determine whether disclosure of the confidential informant was required. Where the defendant fails to establish the need for production, the trial court’s decision to end the in camera hearing on that issue does not deprive the defendant of his constitutional right to confrontation (see People v Goggins, 34 NY2d 163, cert den 419 US 1012). We have examined defendant’s other contentions and find them to be without merit.

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


text:
    The People of the State of New York, Respondent, v Charles Lanier, Jr., Appellant. The People of the State of New York, Respondent, v Thomas Alaxanian, Appellant.
    Argued June 11, 1981;
    decided July 7, 1981

      APPEARANCES OF COUNSEL

      John L. Pollok and Jay Goldberg for Charles Lanier, Jr., appellant.

      James D. Linnan for Thomas Alaxanian, appellant.

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed for the reasons stated in the opinion of Judge Joseph Harris in Albany County Court. In the peculiar circumstances disclosed in this record there was such reliability of the detailed description of the joint activities of the participants in the Livingston robbery furnished by one of their number in the presence of his counsel, such undisputed physical propinquity and connection among the residential properties of those participants, and such description of their joint, postrobbery activities based on the continuing personal observations of Investigator Baker as to preclude any conclusion on our part that the suppression court’s finding of probable cause for the issuance of the warrant for the search of the premises at 55 Rensselaer Street for the narrowly prescribed purpose of seizing the eight explicitly identified articles of home furnishings, now affirmed at the Appellate Division, was erroneous as a matter of law.

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

In each case: Order affirmed in a memorandum.


text:
    In the Matter of Palma Mitchell et al., Appellants, v Zoning Board of Appeals of the City of Yonkers et al., Respondents, and Christian Burckel, Intervenor-Respondent. (And a Similar Proceeding.)
    Decided July 7, 1981

      APPEARANCES OF COUNSEL

      John A. Mitchell and Thomas V. Incantalupo for appellants.

      Arthur J. Doran, Jr., Corporation Counsel (Robert W. Villani of counsel), for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. We cannot say as a matter of law that the determination of the board of appeals to grant an area variance was either arbitrary, capricious or without a rational basis.

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


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Sergio Gonzalez, Appellant.
    Argued June 8, 1981;
    decided July 7, 1981

      APPEARANCES OF COUNSEL

      Stanley M. Meyer and Frank A. Lopez for appellant.

      Mario Merola, District Attorney (Peter D. Coddington and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s argument that the trial court erred in refusing to admit the Grand Jury testimony of a witness who was unavailable at the time of the trial must be rejected. The testimony was excludable as hearsay evidence, and not admissible within the statutory exceptions to that rule (see CPL 670.10; People v Harding, 87 NY2d 130). Defendant’s additional argument that he had a due' process right to introduce this testimony (see Chambers v Mississippi, 410 US 284) was not preserved for our review by timely objection.

With respect to the defendant’s contention as to the circumstantial evidence charge, it is noted that although the charge as given did not include the words “exclude to a moral certainty” as requested by the defendant it did nevertheless, in substance, adequately inform the jury as to the burden of proof in a circumstantial evidence case (see People v Morris, 36 NY2d 877).

Fuchsberg, J.

(concurring). While I am otherwise in agreement with the result and reasoning of the court in this case, I write separately because of my differing view on the defendant’s request that the court charge the jury that, since the evidence was wholly circumstantial, the facts from which the inferences were to be drawn had to “exclude to a moral certainty every other reasonable hypothesis” (emphasis supplied). Unlike the court’s brief memorandum, from which one might gather that the failure to charge the moral certainty formulation is a harmless omission of a desirable charge, it is one that should no longer be so employed at all. The Trial Judge, therefore, was eminently correct, not merely because the charge he did give was one which “adequately inform [ed] the jury as to the burden of proof”, but because he denied defendant’s request that he add one built around “moral certainty”.

In reaching this conclusion, I am in agreement with the District Attorney, who, in essence, maintains that the standard of proof required in circumstantial, as in noncircumstantial, criminal cases, is that of proof beyond a reasonable doubt and that, in this context, the phrase “moral certainty” is not only a “confusing form of words” (People v Kennedy, 47 NY2d 196, 201-203; see, also, People v Porrero, 26 NY2d 430, 434-435; People v Benzinger, 36 NY2d 29, 32; People v Wachowicz, 22 NY2d 369, 372-373), but unnecessary to a charge on this subject.

In so saying, I am, of course, conscious of the fact that this court has long and repeatedly, and most often unanimously and, therefore, with my concurrence as well, approved the appending of the phrase “moral certainty” to the conventional “beyond a reasonable doubt” charge. In the main, our rationale has been that the added words, with seeming salutariness, would serve to impress the jury with what we perceived to be a special need “to perform a complex analytical function” when purely circumstantial evidence of guilt is weighed (People v Barnes, 50 NY2d 375, 380; see, also, People v Gerard, 50 NY2d 392, 397; People v Piazza, 48 NY2d 151, 158; People v Montanez, 41 NY2d 53, 57; People v Benzinger, supra, p 33; People v Morris, 36 NY2d 877). But our opinions did not focus on the risk that it would mislead the jurors or, worse, dilute the constitutionally required standard of proof. Moreover, I am bolstered in my resolve to say my piece by the host of commentators, jurists and lexicographers who, directly or indirectly, bear witness to the flaws inherent in the added charge.

I begin with the undebatable proposition that the burden of proof which the People must carry to the point of conviction is to establish all the essential elements of a crime beyond a reasonable doubt — no more and no less (Matter of Winship, 397 US 358, 364). Thus, while clarification or emphasis of the “beyond a reasonable doubt” rule — though it is one with whose connotations few laymen are unfamiliar —is permissible and perhaps useful, from the defendant’s perspective, it may not be put in a form which reduces the standard and, from society’s vantage point, it ought not raise it, as, for instance, to one of absolute certainty. As the unanimous Supreme Court put it: “Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonal evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more” (Holland v United States, 348 US 121, 140). Holland has been consistently followed in the Federal courts (see 1 Devitt and Blackmar, Federal Jury Practice and Instructions [3d ed], § 15.02, p 443).

The trouble with using “moral certainty” for this purpose is self-apparent. A lay jury will understand what “certainty” means, but “beyond a reasonable doubt” does not embrace any concept as definite as that. “Moral” conveys multifaceted ideas, among which ethical, aspirational or behaviorial ones preponderate. None of these, however, is synonymous with the rational picture conjured up by the word “reasonable” (e.g., Oxford Universal Dictonary [3d ed] [“pertaining to good and evil”, “founded on moral law”]; Webster’s New World Dictionary [3d ed] [“pertaining to good and evil”, “founded on moral law”] ; Webster’s New World Dictionary, Encyclopedic ed [1951] [“good or right in conduct or character”]; Standard Dictionary of the English Language, Funk & Wagnalls ed [1895] [“pertaining to the practices, conduct or spirit of men towards God, themselves and their fellow man, with reference to right and wrong and obligation to duty”]; Random House Dictionary of the English Language [“righteous”, “just”, “distinction between right and wrong”, “ethical”, “founded on the fundamental principles of right conduct rather than legalities, enactment or custom”] ).

And, when the words “moral” and “certainty” are used together and in that order, all five sources equate it with “probability”. Needless to say, to this the nearest legal standard of proof would be the civil law’s preponderance of evidence rather than that of the criminal law’s “beyond a reasonable doubt”. The inexactness of the phrase may have been best noted in Commonwealth v Costley (118 Mass 1, 24), as follows: “ ‘Probable evidence’, says Bishop Butler in the opening sentence of his Analogy, ‘is essentially distinguished from demonstrative by this, that it admits of degrees, and of all variety of them, from the highest moral certainty to the very lowest presumption’.”

Little wonder that McCormick, figuratively throwing up his hands, tells us that the use of “moral certainty” to help define “reasonable doubt” “has been caustically criticized as raising more questions than it answers” (McCormick, Evidence [2d ed], § 341, p 799), while Wigmore (9 Wig-more, Evidence [3d ed], § 2497, p 321), among copious citations critical of such usage, includes two rhetorical questions, which sum it well up: “ ‘Why not leave the courts and juries alone to grapple as best they may with the difficulty of determining, without any test, what constitutes a reasonable doubt, without adding to that difficulty the certainly equal difficulty of determining what constitutes a moral certainty? What possible end can such a heaping up of indefinable terms serve, but to confuse and baffle rather than enlighten and aid the average juror?’ ” (May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 Amer L Rev 642).

Struggling against such reality, in actual practice in this State the utilization of the “moral certainty” phrase, not surprisingly, has had a checkered course. So, in People v Forest (50 AD2d 260, 262), Presiding Justice Stevens found the use of “reasonable certainty” or “reasonable and moral certainty” to be erroneous because either permitted a lesser standard than proof beyond a reasonable doubt. Forest was followed in People v Cavallerio (71 AD2d 338, 345), but was rejected in People v Fox (72 AD2d 146,147), where another panel, quoting People v Bonifacio (190 NY 150, 155), found the distinction to be of no moment. And, among others,. Judge Bentley Kassal, in a well-written opinion at nisi prius, found the term “confusing” and declined to charge it as a definition of reasonable doubt (People v Hicks, 91 Misc 2d 205, affd 70 AD2d 1061).

All this does not mean circumspect explanations of the difference between direct and circumstantial evidence, and that a uniform standard applies to both, is not in order. So, for example, Devitt and Blackmer (Federal Jury Practice and Instructions) recommends a charge which reads:

“§ 15.02 Direct Evidence — Circumstantial Evidence “There are two types of evidence from which you may find the truth as to the facts of a case — direct and circumstantial evidence. Direct evidence is the testimony of one who asserts actual knowledge of a fact, such as an eyewitness; circumstantial evidence is proof of a chain of facts and circumstances indicating the guilt or innocence of a defendant. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence. You should weigh all the evidence in the case. After weighing all the evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty.”

And in the present case, Justice Ivan Warner, in a charge which unconfusedly seems to parallel charge 1:70 of the New York Patterns and Jury Instructions, told the jury: “Circumstantial evidence, ladies and gentlemen, is evidence founded on experience and observed facts and incidents establishing a connection between the known and proved facts and the facts sought to be proved.

“The evidence commonly comes from several witnesses and different sources forming a chain of circumstances pointing to the existence of the fact.

“In order to prove a fact by circumstances, there must be positive proof of some fact which although true does not itself directly establish the fact in dispute but affords a reasonable inference of its existence.

“The fact or facts upon which it is sought to base an inference must be shown and not left to rest in conjecture and, when shown, it must appear that the inference drawn is the only one that can fairly and reasonably be drawn from the facts and that any other explanation is fairly and reasonably excluded.”

Finally, in essaying this concurring dissertation, I take heart from the wise words of former Chief Judge (then Judge) Charles S. Desmond, who, after reciting pithy statements to the same effect by others, framed them in his inimitably direct style to say, “We act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice” (Woods v Lancet, 303 NY 349, 355).

Chief Judge Cooke and Judges Gabrielli, Jones and Wachtler concur; Judge Fuchsberg concurs in a concurring opinion in which Judges Jasen and Meyer concur.

Order affirmed in a memorandum.


text:
    In the Matter of Stuyvesant Square Thrift Shop, Inc., Appellant, v Tax Commission of the City of New York et al., Respondents.
    Argued June 12, 1981;
    decided July 7, 1981

      APPEARANCES OF COUNSEL

      James C. Sherwood, Daniel R. Murdock, J. Truman Bidwell, Jr., and David C. Goss for appellant.

      Allen G. Schwartz, Corporation Counsel (Judith R. Greenwald, Edith I. Spivack and Russell D. Scott of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of that court by Justice Max Bloom.

In addition we note the distinction between the facts on the instant appeal and Matter of St. Joseph’s Health Center Props. v Srogi (51 NY2d 127), where we held that real property used by a corporation exclusively for providing hospital personnel with housing was sufficiently incidental to the hospital’s operation to be within the statutory requirement that it be used exclusively for hospital purposes (see Real Property Tax Law, § 421, subd 1, par [a]). By way of distinction, the use of the property by petitioner Stuyvesant Thrift Shop (Thrift Shop) is not exclusively for charitable purposes in that the primary objective of the enterprise is to generate profits.

The fact that the net cash profits are ultimately distributed to various institutions organized" for charitable purposes does not in and of itself directly involve the Thrift Shop in the charitable activities of the distributee organization or render its function exclusively charitable within the meaning of this narrowly construed exemption (see Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143, 153). Nor does it avail petitioner that some of its merchandise was sold at reduced prices to needy persons or that some of its goods were refurbished by clients of a constituent agency, for the Appellate Division found these activities to be occasional only rather than the primary activity of petitioner which would qualify it for exemption.

Chief Judge Cooke (dissenting). This court’s recent decision in Matter of St. Joseph’s Health Center Props. v Srogi (51 NY2d 127) compels us to reject the majority’s position in this case. In St. Joseph’s, the court held that subdivision 1 of section 421 of the Real Property Tax Law was intended by the Legislature “to exempt property owned by a corporation conducted for a purpose reasonably incident to the major purpose of another * * * exempt corporation, even though not itself organized to engage in all of the activities of the latter corporation” (id., at p 133). This position dramatically broadened the grounds for real property tax exemptions (id., at p 134 [Cooke, Ch. J., dissenting] ; see, generally, Beebe and Harrison, A Law in Search of a Policy: A History of New York’s Real Property Tax Exemption for Nonprofit Organizations, 9 Fordham Urban LJ 533, 579-580). Having once departed sharply from prior law, the court should not again reverse direction so soon after its first shift.

In St. Joseph’s the corporation was organized to provide housing for the staff of the parent hospital corporation. Here the Stuyvesant Thrift Shop was organized to sell donated merchandise and distribute the proceeds to the member charitable corporations, who are unquestionably entitled to exemptions themselves. The sole function of the Thrift Shop corporation is “reasonably incident to the major purpose” of the parent charities. The fact that the Thrift Shop converts the merchandise to money before distributing it to the parent charitable corporations does not alter this conclusion. I can therefore perceive no meaningful distinction between this case and St. Joseph’s and must dissent and vote to reverse.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Arbitration between Dutchess County Chapter, Civil Service Employees Association, Inc., Respondent, and Dutchess County et al., Appellants.
    Decided July 7, 1981

      APPEARANCES OF COUNSEL

      Stephen J. Wing, County Attorney (Ian G. MacDonald of counsel), for appellants.

      Michael J. Smith and Thomas D. Mahar, Jr., for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. Public policy does not preclude a Sheriff from agreeing to submit for resolution by arbitration questions as to whether assignments to a Deputy Sheriff violate provisions of their collective bargaining agreement concerning out-of-title work assignments. That being so the award of the arbitrator, involving an interpretation of a job description and not the creation or classification of a new position, does not offend public policy. In addition, we cannot say as a matter of law that the award is so irrational as to warrant vacatur.

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


text:
    The People of the State of New York, Appellant, v Alexander Hentschel, Respondent.
    Decided July 7, 1981

      APPEARANCES OF COUNSEL

      Patrick D. Monserrate, District Attorney, for appellant.

      Scott C. Gottlieb for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed for reasons stated in that portion of the memorandum at the Appellate Division which held that the court’s charge on conspiracy constituted reversible error.

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


author: Chief Judge Cooke

text:
    Church of God of Prospect Plaza, Appellant, v Fourth Church of Christ, Scientist, of Brooklyn, Respondent.
    Argued June 8, 1981;
    decided July 7, 1981

      APPEARANCES OF COUNSEL

      Stephen A. Humsjo for appellant.

      Dwight B. Demeritt, Jr., and Paul V. Nunes for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Until and unless both leave of the court and appropriate denominational authorization have been obtained as required by section 12 of the Religious Corporations Law, such a corporation may not sell any of its real property. While under that statute it cannot make a valid conveyance without judicial sanction, it is established that it may enter into a contract to sell conditioned upon obtaining court approval. Moreover, in an action for specific performance, a court of equity “has ample power to inquire into the fairness of the contract and as to its advantage or disadvantage to the religious corporation, and to approve the proposed conveyance and direct it to be made where, upon all the facts, no valid reason appears for refusing such relief” (Muck v Hitchcock, 149 App Div 323, 328-329, revd on other grounds 212 NY 283; Sun Assets Corp. v English Evangelical Lutheran Church, 19 Misc 2d 187, 192 [Martuscello, J.]; accord Bounding Home Corp. v Chapin Home for Aged & Infirm, 19 Misc 2d 653, 654 [Margett, J.]; Congregation Beth Elohim v Central Presbyt. Cong., 10 Abb Prac [NS] 484, 489; Bowen v Trustees of Irish Presbyt. Cong, in City of N. Y., 6 Bosw 245; but see Wilson v Ebenezer Baptist Church, 17 Misc 2d 607).

In the present case, the Appellate Division’s factual finding that the contemplated sale would not promote the purposes of the respondent religious corporation or the interests of the members of its congregation is supported by the weight of the evidence (Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556, 563). Under the circumstances, we cannot say that judicial consent was not properly withheld (Wyatt v Benson, 4 Abb Prac 182, 189). It follows that the purported agreement would be invalid and did not entitle the plaintiff to either specific performance or monetary damages (Associate Presbyt. Cong, of Hebron v Hanna, 113 App Div 12,14; Sun Assets v English Evangelical Lutheran Church, 19 Misc 2d 187, 192, supra).

True, in most cases it would be preferable for the approval to have been sought in an independent proceeding instituted pursuant to section 511 of the Not-For-Profit Corporation Law, a matter, however, of no moment here since approval was not granted. For the same reason, it is now unnecessary for us to consider the propriety of a grant of permission in a proceeding such as the present one in which all the requirements of section 511 would have been met.

Finally, it having been determined that judicial approval was properly refused, it becomes unnecessary for us to pass on whether, absent the requirement for such consent, the agreement between the parties would have constituted an enforceable contract.

Chief Judge Cooke

(concurring). I concur in the result, said accord being reached on -the narrow ground that section 12 of the Religious Corporations Law confers no power upon the courts to consider approval of the transaction at issue.

By statute, a religious corporation may not “sell * * * any of its real property without applying for and obtaining leave of court” (Religious Corporations Law, § 12, subd 1). Since a sale occurs when a contract of sale is made (e.g., Fries v Merck, 167 NY 445, 449-451; Madison Ave. Baptist Church v Baptist Church in Oliver St., 46 NY 131, 139-141), court approval is required before the contract becomes binding. As an exception to this rule the statute permits the court to confirm a conveyance after the sale has been made and the conveyance “executed and delivered” (Religious Corporations Law, § 12, subd 9 [emphasis added]). Here, prior approval of the sale had not been obtained and no conveyance has been executed and delivered. Thus, the courts have no statutory power to approve or disapprove the transaction.

Moreover, approval of the sale pursuant to subdivision 1 of section 12 may only be obtained by petition of the religious corporation itself (see Not-For-Profit Corporation Law, § 511; Wilson v Ebenezer Baptist Church, 17 Misc 2d 607, 609-610), except that the grantee may seek to “confirm” once the conveyance has been executed and delivered (Religious Corporations Law, § 12, subd 9). An obvious purpose of this statutory scheme is to prevent a forced conveyance of the religious corporation’s real property at the behest of the vendee (see Wilson v Ebenezer Baptist Church, supra). Inasmuch as the religious corporation here has not sought leave to sell its property, but rather this action was initiated by the vendee, the court may not even consider approval or disapproval of the sale.

For these reasons, the alleged contract between the parties could have no legal effect. On this view of the case, it is unnecessary to consider whether, under the general principles of contract law, .the parties actually entered into a contract of sale.

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

Judges Jasen, Jones, Wachtler and Fuchsberg concur; Chief Judge Cooke concurs in result in a concurring opinion in which Judges Gabrielli and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    Beacon Urban Renewal Agency, Plaintiff, v Leemilt’s Petroleum, Inc., Respondent, and County of Dutchess, Appellant, et al., Defendants.
    Decided July 7, 1981

      APPEARANCES OF COUNSEL

      Stephen J. Wing, County Attorney (Timothy P. O’Reilly of counsel), for appellant.

      Robert S. Tobin for respondent.
   OPINION OF THE COURT

On summary consideration, order modified, with costs to appellant, and case remitted to Supreme Court, Dutchess County, for further proceedings in accordance with the following memorandum and, as so modified, affirmed. The county, as depositary of the condemnation fund pursuant to former subdivision 2 of section 555 of the General Municipal Law, is required to pay the actual interest generated on that sum to the condemnee, Leemilt’s Petroleum, Inc., not the 6% interest which was applicable to the final condemnation judgment under former subdivision 2 (see Matter of Town of Greenburgh [Turner], 70 AD2d 409, affd 52 NY2d 948). It is unclear from the record what the actual amount of interest generated on the sum deposited was, and, thus, the case must be remitted for a determination of that amount.

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


text:
    In the Matter of William F. Englert, Appellant, v State University of New York, Respondent.
    Decided July 7, 1981

      APPEARANCES OF COUNSEL

      Joseph F. Reina for appellant.

      Robert Abrams, Attorney-General, for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs (see Matter of Plummer v Klepak, 48 NY2d 486; Lehnhoff v Nathan, 48 NY2d 990).

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


text:
    Brewery Workers Pension Fund et al., Respondents, v New York State Teamsters Conference Pension and Retirement Fund et al., Appellants.
    Submitted June 1, 1981;
    decided July 7, 1981
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the orders of Supreme Court, Queens County, dated May 17, 1979, July 16, 1980 and August 4, 1980, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal otherwise denied. Cross motion to dismiss appeal taken as of right denied. An appeal as of right lies pursuant to CPLR 5601 (subd [d]), bringing up for review only the prior order of the Appellate Division of June 16, 1980 (CPLR 5501, subd [b]).

Judge Meyer taking no part.


text:
    The People of the State of New York ex rel. Frank Cole, Appellant, v Westchester County Jail Warden, Respondent.

      Submitted June 29, 1981;
    decided July 7, 1981
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus. (See People ex rel. Wilder v Markley, 26 NY2d 648.)


text:
    Edward Dattner, Appellant, v Lee Pokoik et al., Respondents, et al., Defendants.
    Decided July 7, 1981
   Appeal as against defendant Pokoik dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action against that defendant within the meaning of the Constitution.


text:
    Rosalie Lancette et al., Appellants, v Crouse-Irving Memorial Hospital, Inc., Respondent. Rosalie Lancette et al., Appellants, v Z. Saba et al., Respondents.
    Decided July 7, 1981
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 36, subd [b], pp 143-144).


text:
    The People of the State of New York ex rel. Dorian McFadden by Steve Sandler, Appellant, v New York State Board of Parole et al., Respondents.
    Submitted June 29, 1981;
    decided July 7, 1981
   Motion for permission to continue prosecution of the appeal notwithstanding relator’s release denied. On the court’s own motion, appeal dismissed, without costs, upon the ground that relator has been released on parole and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see People ex rel. Wilder v MwrMey, 26 NY2d 648).


text:
    In the Matter of Eleanor L. Praetzel et al., Appellants, v Victor Bahou et al., Constituting the State Civil Service Commission, et al., Respondents.
    Submitted June 29, 1981;
    decided July 7, 1981
   Motion for leave to appeal denied. Motion for a stay, etc., dismissed as academic.

Chief Judge Cooke and Judge Jasen taking no part.


text:
    Kitty A. Priebe (Fox), Appellant, v John A. Priebe, Respondent.
    Submitted June 15, 1981;
    decided July 7, 1981
   Cross motion for leave to appeal denied upon the ground an appeal lies as of right.


text:
    The People of the State of New York ex rel. Bobby Whitaker, Appellant, v Eugene S. LeFevre, Respondent.
    Submitted June 22, 1981;
    decided July 7, 1981
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie from the unanimous Appellate Division order of affirmance. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Santina R. Andolfi, Appellant-Respondent, v Kenneth K. Rohl, Respondent-Appellant, et al., Respondent.
    Submitted September 1, 1981;
    decided September 1, 1981
   Motion for leave to appeal denied. On the court’s own motion, cross appeal taken as of right dismissed, without costs, upon the ground it does not lie.


text:
    In the Matter of Barry Hurowitz, Respondent, v Board of Elections of the City of New York, Respondent, and William J. Garry et al., Appellants. (And Two Other Proceedings.)
    Submitted September 1, 1981;
    decided September 1, 1981
   Motion for leave to appeal denied upon the ground an appeal lies as of right.


text:
    In the Matter of Robert R. Meguin et al., Appellants, v Frank Coveney et al., Constituting the Board of Elections of the County of Suffolk, and Raymond C. Allmendinger et al., Respondents.
    Submitted September 1, 1981;
    decided September 1, 1981
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground it does not lie.


text:
    In the Matter of Francis E. Menendez et al., Appellants, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, and Joseph J. Janoski et al., Respondents.
    Submitted September 1,1981;
    decided September 1, 1981
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground it does not lie.


text:
    In the Matter of Maria A. Schultz et al., Respondents, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, et al., Appellants.
    Submitted September 1,1981;
    decided September 1, 1981
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground it does not lie.


text:
    In the Matter of George A. Steele, Appellant, v Frank Coveney et al., Constituting the Board of Elections of the County of Suffolk, and Louis T. Howard, Respondent. In the Matter of Ira M. Hariton, Appellant, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, and John P. Finnerty, Respondent. In the Matter of Ira M. Hariton, Appellant, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, and John P. Finnerty, Respondent. In the Matter of Chester B. Wallace, Appellant, v Frank Coveney et al., Constituting the Board of Elections of the County of Suffolk, and Anthony Noto, Respondent. In the Matter of Patrick Halpin, Appellant, v Frank Coveney et al., Constituting the Board of Elections of the County of Suffolk, and Dominic Jacangelo, Respondent.
    Submitted September 1, 1981;
    decided September 1, 1981
   Motions for leave to appeal denied. On the court’s own motion, appeals taken as of right dismissed, without costs, upon the ground they do not lie.


text:
    In the Matter of Robert F. Flacke, as Commissioner of Environmental Conservation of the State of New York, Appellant, v Freshwater Wetlands Appeals Board of the State of New York et al., Respondents.
    Submitted July 27, 1981;
    decided September 2, 1981
   Motion for an order directing the Attorney-General to cease obstructing payment of legal fees and for related relief denied.


text:
    Flushing Savings Bank, Respondent, v Alfred R. Parr et al., Appellants.
    Decided September 2, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the gound that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695). Motion for poor person relief dismissed as academic.

Judge Meyer taking no part.


text:
    The People of the State of New York, Respondent, v Joseph Murphy, Appellant.
    Submitted August 17, 1981;
    decided September 2, 1981
   On the court’s own motion, order dated August 4, 1981, dismissing the appeal vacated and appeal restored to the calendar. Motion for assignment of counsel granted and Elaine. Platt, Esq., 136 East, 36th St., New York, New York, assigned as counsel to the appellant on the appeal herein. Appellant’s papers on appeal are to be served and filed on or before November 2,1981. [See 54 NY2d 760.]


text:
    In the Matter of Slewett & Farber, Appellant-Respondent, v Board of Assessors of the County of Nassau et al., Respondents-Appellants. Attorney-General of the State of New York, Intervenor-Respondent-Appellant.
    Submitted July 13, 1981;
    decided September 2, 1981
   Motion to dismiss appeal taken as of right by petitioner granted and said appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion to expedite the appeals by the county and State pursuant to CPLR 5602 (subd [b], par 1) denied.


text:
    In the Matter of Grace H. Hutson et al., Respondents, v James F. Bass et al., Constituting the Board of Elections of the City of New York, and Carmen Rodriguez, Appellant.
    Argued September 1, 1981;
    decided September 3, 1981

      APPEARANCES OF COUNSEL

      Nancy McAlister and Douglas A. Kellner for appellant.

      Harry Kresky for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the proceeding remitted to that court for determination of questions of fact, if any.

The reversal at the Appellate Division was recited to have been “on the law and in the interest of justice”. To the extent that it was based on considerations of “interest of justice” it was erroneous. While the Appellate Division does have interest-of-justice jurisdiction in some matters (e.g., CPL 470.15, subd 3, par [c]; cf. 4 Weinstein-KornMiller, NY Civ Prac, par 4017.09), no provision is invited to our attention nor are we aware of any which authorizes the Appellate Division so to dispose of appeals in election cases, great as may be the understandable desire to do so (cf. Matter of Ryan v Board of Elections of City of N. Y., 53 NY2d 515).

To the extent that the court’s disposition in this instance was made “on the law” it was also erroneous and must be reversed and the case remitted to that court for determination of questions of fact, if any, which were raised at the Appellate Division (CPLR 5613). It is undisputed that the original cover sheet on the designating petition here failed to indicate the names and addresses of the candidates for election as members of the county committee and that there was no cover sheet indicating the names and addresses of the candidates for election as district leaders. In each respect there was noncompliance with the mandates of subdivision 2 of section 6-134 of the Election Law. These deficiencies preclude validation of this designating petition. While substantial compliance is acceptable as to details of form, there must be strict compliance with statutory commands as to matters of prescribed content (cf. Matter of Higby v Mahoney, 48 NY2d 15). We cannot say here, as we have elsewhere, that there has “been compliance with the requirements of * * * the Election Law as to content and substantial compliance with the requirements of that [law] as to form” (Matter of Ruiz v Sachs, 43 NY2d 894, 895). It is wholly immaterial that the courts might reasonably conclude that what they perceive as the ultimate legislative objectives might better be achieved by more flexible prescriptions, prescriptions which might be judged by some to be more equitable. Whatever may be our view, the Legislature has erected “a rigid framework of regulation, detailing as it does throughout specific particulars” (Matter of Higby v Mahoney, 48 NY2d 15, 20, n 2, supra). We can take some solace in the awareness that “There is nothing to indicate that strict compliance with the precise requirements of this statute as interpreted is not readily accomplished on the great bulk of designating petitions. It is only the careless or inadvertent failure to follow the mandate of statute and case law which gives rise to the complaints that come before us” (id., p 20).

Additionally, the undisputed fact that the cover sheets for the designating petitions of candidates for election as judicial delegates were not filed within the time prescribed by statute, although late by only 15 minutes, was a fatal defect (ElectionLaw, § 1-106, subd2).

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

Order reversed, without costs, and the matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.

       The Election Law itself recognizes this distinction, for instance, in providing in subdivision 1 of section 6-132 (which contains prescriptions as to both content and form) that a designating petition “shall contain the following information and shall be in substantially the following form” (Matter of Alamo v Black, 51 NY2d 717).


text:
    In the Matter of Robert C. Buhlmann, Appellant, v Sandra Le Fever et al., Constituting the Board of Elections of the County of Rockland, et al., Respondents.
    Argued September 1, 1981;
    decided September 3, 1981

      APPEARANCES OF COUNSEL

      Ronald, A. Phillips for appellant.

      Martin Hurwitz for Board of Elections of County of Rockland, respondent.

      Gilbert E. McCormack for Nicholas L. Vertullo, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Janet Kent, Respondent, v James L. Bass et al., Constituting the Board of Elections of the City of New York, and Jane P. Reilly, Appellant.
    Argued September 2, 1981;
    decided September 3, 1981

      APPEARANCES OF COUNSEL

      Fabian G. Palomino for appellant.

      Peter J. Kurshan for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Anthony H. Rudmann, Respondent, v George P. Scaringe et al., Constituting the Board of Elections of the County of Albany, et al., Appellants, et al., Respondents.
    Argued September 2, 1981;
    decided September 3, 1981

      APPEARANCES OF COUNSEL

      James E. Long for Patricia Hennessey and others, appellants.

      William J. Conboy, II, for Board of Elections of County of Albany, appellant.

      Thomas J. Spargo for respondent.
   OPINION OF THE COURT

On the appeal by Patricia H. Hennessey and James J. Hennessey: Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division.

On the appeal by the Board of Elections: Appeal dismissed, without costs, upon the ground that the Board of Elections is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).

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


text:
    In the Matter of William Waible, Appellant, v Harry E. Dosberg, Jr., et al., Respondents.
    Argued September 1, 1981;
    decided September 3, 1981

      APPEARANCES OF COUNSEL

      Eugene F. Pigott for appellant.

      David L. McIntyre for Harry E. Dosberg, Jr., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, for the reasons stated by that court. In addition we would note that there was no finding of permeation. The sheets to which the appellant himself acted as the subscribing witness, containing 393 signatures, give the appellant more than the required signatures necessary to place him on the primary ballot.

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

Order affirmed, without costs, in a memorandum.


author: Jasen, J.

text:
    In the Matter of Bruce Kogan, Respondent, v Ronald D’Angelo, Appellant. (And Another Proceeding.)
    Argued September 1,1981;
    decided September 3, 1981

      Matter of Kogan v D’Angelo, 83 AD2d 892, reversed.
    APPEARANCES OF COUNSEL

      Louis J. Marrero for appellant.

      Henry Stanziale for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to that court for its consideration of the facts.

The Trial Judge, based on a stipulation that 45 of the 58 signatures obtained by a subscribing witness failed to match signatures on the buff card, struck those signatures but declined to strike the remaining 13 signatures. He made no finding that the 45 signatures were fraudulently obtained. The Appellate Division, reversing on the law alone, held that the remaining 13 signatures should have been stricken, thus reducing the total below the 4,201 signatures required and invalidating the petition.

The stipulation made did not by itself establish such gross irregularity or fraudulent practice with respect to the 45 signatures as to bring into play the permeation principle announced in the cases on which the Appellate Division relied. It was, therefore, error to invalidate the remaining 13 signatures as a matter of law.

Jasen, J.

(dissenting). While I agree that a determination whether irregularities or fraudulent practices so pervade a petition as to render it invalid usually involves a question of fact (Matter of Ruiz v McKenna, 40 NY2d 815; Matter of Mercorella v Benza, 37 NY2d 792), certainly there is a point at which the undisputed evidence establishes permeation as a matter of law (Matter of Lerner v Power, 22 NY2d 767). In my view, where, as here, an overwhelming number of the total signatures collected by a single subscribing witness are struck as apparent forgeries, it can only be concluded, absent some explanation to the contrary, that the remaining signatures obtained by that witness also are invalid.

Alfonso Kitt was the subscribing witness for 58 signatures appearing on five pages of the petition designating appellant D’Angelo as a candidate in the Republican Party primary election for the office of Councilman-at-Large. After the Board of Elections invalidated 1,065 signatures, including those collected by the witness Kitt, appellant D’Angelo’s petition was 355 signatures short of the number required to be placed on the ballot. At the hearing to validate the petition, appellant D’Angelo conceded that all 45 signatures appearing on three of the pages subscribed by Mr. Kitt should be struck as apparent forgeries because they failed to match the signatures appearing on the buff cards of those persons listed on said pages of the designating petition.

However, the hearing court denied petitioner Kogan’s request to strike the 13 remaining signatures collected by Mr. Kitt upon the ground that all the signatures obtained by him were permeated with gross irregularities. On appeal, a' unanimous Appellate Division reversed, on the law, holding that “ [s] ince there were conceded unexplained irregularities with respect to 45 of the 58 signatures obtained by Mr. Kitt, all of the signatures obtained by him should have been stricken”.

I would agree. The record in this case establishes such an extremely high incidence of admitted irregularities in the signatures collected by the witness Kitt that, as a matter of law, the remaining signatures obtained by that witness should also be invalidated.

Accordingly, I would affirm the order of the Appellate Division.

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

Order reversed, without costs, and the matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    Lawrence J. Brunner, Appellant, v Allstate Insurance Company, Respondent.
    Submitted July 20, 1981;
    decided September 8, 1981
   Motion to vacate the Court of Appeals order of dismissal dated June 18, 1981 denied. [See 54 NY2d 641.]


text:
    The People of the State of New York ex rel. Eugene Delrow, Appellant, v New York State Division of Parole et al., Respondents.
    Submitted July 20, 1981;
    decided September 8, 1981
   Motion for leave to appeal, etc., dismissed, without costs, upon the ground that relator has been released and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    James Evans, Respondent, v NAB Construction Corp. et al., Doing Business as NAB-LORD Associates, Inc., Appellants.
    Submitted June 29, 1981;
    decided September 8, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (De Simone v Barr & Barr, 23 NY2d 880).


text:
    Clara Galus, Individually and as Executrix of Philip Galus, Deceased, Appellant, v William Milner, Respondent, et al., Defendant.
    Submitted July 27,1981;
    decided September 8, 1981
   Motion to dismiss the appeal denied.


text:
    Richard Harris, Respondent, v Shelia K. F. Harris, Appellant.
    Submitted June 29, 1981;
    decided September 8, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 38, pp 156-157).


text:
    In the Matter of Warren A. Raymond et al., Respondents, v Michael Lo Grande, as Supervisor of the Town of Islip, et al., Appellants.
    Submitted July 27,1981;
    decided September 8, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding and is not “an order of the appellate division” within the meaning of CPLR 5602 (subd [a], par 2).


text:
    In the Matter of the Town of Arietta et al., Respondents, v State Board of Equalization and Assessment et al., Appellants. (And Ten Other Proceedings.)
    Submitted July 13, 1981;
    decided September 8, 1981
   Motion, insofar as it seeks leave to appeal from the order entered in the proceeding for the year 1968, denied upon the ground that an appeal lies as of right CPLR 5601 (subd [a], par [ii]). Motion for leave to appeal otherwise dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the remaining orders sought to be appealed from do not finally determine the proceedings within the meaning of the Constitution (cf. Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for an Urban Renewal Project Known as College Point Industrial Park Urban Renewal Project II, Stage II. Harold Glantz et al., Doing Business as H.G.V. Associates et al., Respondents.
    Submitted August 17, 1981;
    decided September 10, 1981
   Motion to dismiss the appeal denied.


text:
    In the Matter of Denise Giacopelli, Respondent, v Frank Giacopelli, Appellant.
    Decided September 10, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Joseph Kivel, as President and on Behalf of Uniformed Fire Officers Association, Yonkers Fire Department, et al., Respondents, v Richard Smith, as Commissioner of the Fire Department of the City of Yonkers, et al., Appellants.
    Submitted September 1, 1981;
    decided September 10, 1981
   Motion to vacate the statutory stay of the Appellate Division order of August 21, 1981 granted. Motion to vacate the stay of the judgment of August 4, 1981 denied as unnecessary.


text:
    David Pizarro, Appellant, v State Division of Human Rights et al., Respondents.
    Submitted August 3, 1981;
    decided September 10, 1981
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, upon the ground that it does not lie.


text:
    The People of the State of New York ex rel. Narcisco Rosario, Appellant, v Robert J. Henderson, as Superintendent of Auburn Correctional Facility, Respondent.
    Decided September 10, 1981
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Fourth Depart-

ment. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2] ; § 5, subdb; CPLR 5602, subd [b], par 2).


text:
    In the Matter of Rusciano & Son Corp. et al., Respondents, v William E. Roche, Assessor, et al., Appellants. (And Another Proceeding.)
    Submitted August 10, 1981;
    decided September 10, 1981
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the Appellate Division order (70 AD2d 953) granting a new trial, here brought up for review, did not “necessarily affect” the final judgment, as required by CPLR 5601 (subd [d]). (Cohen and Karger, Powers of the New York Court of Appeals, § 79, pp 344-345.)


text:
    The People of the State of New York, Respondent, v John Stafford, Appellant.
    Submitted August 31, 1981,
    decided September 10, 1981
   Motion to vacate the Court of Appeals order of dismissal dated August 6, 1981 denied. [See 54 NY2d 760.]


text:
    Syracuse Savings Bank et al., Appellants, v Town of Dewitt, Respondent.
    Submitted August 17, 1981;
    decided September 10, 1981
   Motion for reargument of motion for leave to appeal granted. Upon reargument, motion for leave to appeal granted. [See 54 NY2d 602.]


text:
    The People of the State of New York, Respondent, v Russell Thomas, Appellant.
    Submitted August 24, 1981;
    decided September 10, 1981
   Motion to dismiss the appeal granted and the appeal dismissed upon the ground that appellant is not presently available to obey the mandate of the Court of Appeals in the event of an affirmance (see People v Genet, 59 NY 80; People v Del Rio, 14 NY2d 165; People v Sullivan, 28 NY2d 900).


text:
    The People of the State of New York, Respondent, v Hector Vazquez, Appellant.
    Submitted August 24, 1981;
    decided September 10, 1981
   On the court’s own motion, appeal dismissed upon the ground that it does not lie (CPL 450.90). Motion for assignment of counsel dismissed as academic. [See 54 NY2d 759, 767.]


text:
    Sunan Food Corporation, Respondent, v New York State Liquor Authority, Appellant.
    Decided September 15, 1981

      APPEARANCES OF COUNSEL

      Warren B. Pesetsky and Robert Conciatori for appellant.

      Joseph E. Porcelli for respondent.
   OPINION OF THE COURT

On summary consideration, judgment affirmed, with costs. We agree with the Appellate Division that the determination by the State Liquor Authority was not supported by substantial evidence.

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


text:
    In the Matter of the Arbitration between Niagara Frontier Transportation Authority, Respondent, and International Longshoremen’s Association Local 1949, Appellant.
    Decided September 15, 1981
    APPEARANCES OF COUNSEL

      Stuart Pohl for appellant.

      William E. Straub and David F. Mix for respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the application to stay arbitration denied (see Matter of Board of Educ. v Glaubman, 53 NY2d 781).

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


text:
    In the Matter of Charles Berbenich, Appellant, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Decided September 15, 1981

      APPEARANCES OF COUNSEL

      Gerald G. Cowen for appellant.

      Robert Abrams, Attorney-General (Joseph J. Micane of counsel), for respondents.
   OPINION OF THE COURT

On summary consideration, judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    Michael A. Castaldi, Respondent, v Arthur Levitt, as Trustee of the New York State Employees Retirement System, Appellant, et al., Defendants.
    Submitted July 20, 1981;
    decided September 15, 1981
   Motion for leave to appeal granted.

Judge Gabrielli taking no part.


text:
    Dolores Ferrer et al., Appellants, v John M. Hill et al., Respondents.
    Submitted July 6, 1981;
    decided September 15, 1981
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the Appellate Division order granting a new trial, here brought up for review, did not “necessarily affect” the final order, as required by CPLR 5601 (subd [d]) (Cohen and Karger, Powers of the New York Court of Appeals, § 79, p 344). Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.


text:
    In the Matter of the Arbitration between Government Employees Insurance Company, Respondent, and Marion Miller, Appellant.
    Submitted July 27, 1981;
    decided September 15, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (see Matter of Matofsky [Lisa Wigs & Wiglets], 29 NY2d 548; Cohen and Karger, Powers of the New York Court of Appeals, § 11, pp 42-46).


text:
    New York State Department of Audit and Control, Respondent, v Crime Victims Compensation Board, Appellant, and Gerald P. Hughes, Respondent.
    Submitted July 27, 1981;
    decided September 15, 1981
   Motion to vacate the Court of Appeals order of dismissal dated June 9, 1981 denied. [See 54 NY2d 680.]


text:
    In the Matter of Westchester Rockland Newspapers, Inc., Appellant, v Angelo J. Ingrassia, as Judge of the Orange County Court, et al., Respondents.
    Submitted August 24, 1981;
    decided September 15, 1981
   Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Matter of Dobbs Ferry Union Free School Dist. [Dobbs Ferry United Teachers], 51 NY2d 861).

Judge Gabrielli taking no part.


text:
    George C. Andres, Jr., an Infant, by His Father and Natural Guardian, George C. Andres, Sr., et al., Appellants, v George Perry, Respondent.
    Decided September 17, 1981

      APPEARANCES OF COUNSEL

      John S. McBride for appellants.

      Thomas N. O’Hara for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    William E. Steen, Appellant, v New Deal Delivery Service, Inc., Defendant, and 498 Seventh Avenue Associates et al., Respondents.
    Decided September 17, 1981

      APPEARANCES OF COUNSEL

      Abraham Reingold for appellant.

      Harold M. Foster for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in dismissing the complaint pursuant to CPLR 3012 (subd [b j). As we held in Barasch v Micucci (49 NY2d 594, 600-601), it would have constituted an abuse of discretion to have failed to dismiss.

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


text:
    In the Matter of Thwaites Place Associates, Appellant, v New York City Conciliation and Appeals Board et al., Respondents.
    Decided September 17, 1981

      APPEARANCES OF COUNSEL

      Eugene J. Morris for appellant.

      Cullen S. McVoy for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division. j

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


text:
    In the Matter of Harry Friedman, Appellant, v Edward Hammock, as Chairman of the New York State Board of Parole, et al., Respondents.
    Decided September 17, 1981

      APPEARANCES OF COUNSEL

      Barbara S. Schneider for appellant.

      Robert Abrams, Attorney-General (Carl E. Stephan of counsel), for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    Kemp Industries, Inc., Respondent, v Arditi Export Corporation, Appellant.
    Submitted September 14, 1981;
    decided September 17, 1981
   Motion for declaration of timeliness of the appeal herein dismissed as inappropriate, without prejudice.


text:
    In the Matter of the Commissioner of Social Services of the City of New York, as Assignee of Guiliana S. (Anonymous), Petitioner, v David S. (Anonymous), Respondent. The Door-A Center of Alternatives, Appellant.
    Submitted September 15, 1981;
    decided September 17, 1981
   Motion for a stay denied as unnecessary (CPLR 5519, subd [e]).


text:
    Hilda L. Sebris, as Administratrix of the Estate of Janis Sebris, Deceased, Appellant, v State of New York, Respondent.
    Submitted September 14, 1981;
    decided September 17, 1981
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that it does not lie.


text:
    Dennis J. Dubin, Appellant, v Frank J. Macchiarola, as Chancellor of the Board of Education of the City of New York, Respondent.
    Decided September 22, 1981

      APPEARANCES OF COUNSEL

      Louis Dubin for appellant.

      Allen G. Schwartz, Corporation Counsel (Marjorie E. Bornes of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. It cannot be said as a matter of law that it was error for the Appellate Division to accept petitioner’s statement in his article 78 petition as to the date he commenced employment.

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


text:
    In the Matter of Michele Gordon et al., Respondents, v Board of Education of Addison Central School District et al., Appellants.
    Decided September 22, 1981
    APPEARANCES OF COUNSEL

      Harry Treinin for appellants.

      Paul E. Klein and Robert D. Clearfield for respondents.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and petition dismissed. Question certified not answered as unnecessary. (See Holt v Board of Educ., 52 NY2d 625.)

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


text:
    In the Matter of Hans S., a Child Alleged to Be Permanently Neglected. Rockland County Department of Social Services, Appellant; Jack S. et al., Respondents.
    Argued September 10, 1981;
    decided September 22, 1981

      APPEARANCES OF COUNSEL

      Marc L. Parris, County Attorney (William P. Warren of counsel), for appellant.

      Frank S. Polestino for respondents.

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and Lawrence J. Logan of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (77 AD2d 882; see, also, Matter of Leon RR., 48 NY2d 117).

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


text:
    In the Matter of David W. Petrie, as Justice of the Town Court of Danube, Herkimer County, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued August 31, 1981;
    decided September 22, 1981
    APPEARANCES OF COUNSEL

      Bernard J. Malone, Jr., and Susan S. Boocheever for petitioner.

      Raymond S. Hack, Gerald Stern and Seth A. Halpern for respondent.
   OPINION OF THE COURT

Memorandum.

The determination of the State Commission on Judicial Conduct should be accepted.

Petitioner argues that the procedures followed by the commission were beyond its powers and did not afford petitioner due process. The commission is empowered with broad authority to investigate charges of improprieties by members of the judiciary. (Matter of Nicholson v State Comm., 50 NY2d 597.) The course of the commission’s investigation and proceedings are governed by the detailed provisions of section 44 of the Judiciary Law. Pursuant to this section, thé commission investigated petitioner’s handling of court funds and recordkeeping after receiving a letter from the Department of Audit and Control regarding petitioner’s inability to account for certain court funds. Upon completing the investigation and serving the petitioner with a formal written complaint, the commission properly availed itself of summary proceedings when petitioner failed to answer the complaint or raise any question of fact. The statutory requirement authorizing the commission to make a determination after a hearing does not require the commission to go through a meaningless formal hearing where no issue of fact is raised.

Ñor do we find that the sanction imposed by the commission is excessive. Petitioner’s disregard for statutory record-keeping requirements and his carelessness in handling public moneys is a serious violation of his official responsibilities. Such a breach of the public’s trust warrants removal. (Matter of Cooley, 53 NY2d 64; Bartlett v Flynn, 50 AD2d 401.)

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

Determined sanction accepted, without costs, in a memorandum, and David W. Petrie is removed from the office of Justice of the Town Court of Danube, Herkimer County (Judiciary Law, § 47).


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    The People of the State of New York, Appellant, v Sunset Bay, Respondent.
    Argued September 11, 1981;
    decided September 22, 1981

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Peter D. Coddington, Timothy J. McGinn and Alan D. Marrus of counsel), for appellant.

      Joseph A. Phillips and Tedd Blecher for respondent.
   OPINION OF THE COURT

Memorandum.

Appeal dismissed. Although the order of the Appellate Division recites that the determination in that court is on the law alone, an examination of the record and decision below leaves no doubt that the disposition there made rests upon determinations of fact. Because the factual determinations were dispositive (i.e., led to the reversal), this appeal may not be entertained under the recent amendment to CPL 450.90 (subd 2, par [a]).

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

Appeal dismissed in a memorandum.


text:
    In the Matter of Tamar Ross, Respondent, v William Giaccio, as Justice of the Supreme Court, Queens County, et al., Appellants, and Howard Ross, Intervenor-Appellant.
    Decided September 22, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert S. Hammer of counsel), for appellants.

      Joel S. Sankel for intervenor-appellant.

      Alexander Potruch for respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the petition dismissed. The extraordinary remedy of prohibition is not available under the circumstances of this case where there has been no act in excess of jurisdiction but only an alleged error which can be adequately reviewed on a direct appeal.

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


text:
    Lois M. Brennan et al., Appellants, v Donald A. Mead et al., Respondents.
    Decided September 22, 1981

      APPEARANCES OF COUNSEL

      John S. McBride for appellants.

      Anthony J. Caputo and Joseph J. Buderwitz, Jr., for Donald A. Mead and others, respondents.

      George S. Pickwick and Michael Majewski for Westchester Insurance Company, respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    The People of the State of New York, Respondent, v James Key, Appellant.
    Decided September 22, 1981

      APPEARANCES OF COUNSEL

      Milton M. Rosenberg for appellant.

      Robert M. Morgenthau, District Attorney, for respondent.
   OPINION OF THE COURT

Appeal dismissed by the court sua sponte. Although the order of the Appellaté Division states that the reversal was “on the law”, a review of the opinions rendered by that court reveals that its disposition was predicated upon a new finding of fact. Because the new determination of fact, rather than any determination of law, led to the reversal, this appeal does not lie (CPL 450.90, subd 2, par [a]; see, e.g., People v Bay, 54 NY2d 808, decided herewith).


text:
    Dennis Bellanca, Doing Business as The Main Event, et al., Respondents, v New York State Liquor Authority et al., Appellant.
    Submitted July 27, 1981;
    decided September 22, 1981
   Motion by Association of Adult Entertainment Taverns to appear as amicus curiae on the appeal herein granted only to the extent that a brief may be filed within 10 days. Motion for a stay dismissed upon the ground that movant has no standing to seek that relief. [See 50 NY2d 524, revd 452 US 714.]


text:
    In the Matter of Margaret Ann E. (Anonymous), Petitioner, v Huban F. (Anonymous), Respondent. Marvin I. Honig, as Rensselaer County Attorney, Appellant.
    Argued September 17, 1981;
    decided September 24, 1981

      APPEARANCES OF COUNSEL

      Marvin I. Honig, County Attorney, pro se, and Robert D. Wilcox for appellant.

      Robert Abrams, Attorney-General (Peter J. Dooley and
      Shirley Adelson Siegel of counsel), for Allan Dixon, Judge of the Rensselaer County Court.
   OPINION OF THE COURT

Memorandum.

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

It is within the Family Court’s authority pursuant to section 254 of the Family Court Act to appoint the County Attorney to present the case “in support of the petition” in a paternity proceeding before the court. The Family Court’s discretion is restricted only by the statutory requirement that the presentation be in support of the purposes of the act. The Legislature has given Family Court broad authority to request and receive assistance from other departments of government.

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

Order affirmed, with costs, in a memorandum.


text:
    Wilson Sabino, Appellant, v City of New York, Respondent.
    Decided September 24, 1981

      APPEARANCES OF COUNSEL

      Bert W. Subin and Sally Weintraub for appellant.

      Allen G. Schwartz, Corporation Counsel (Joan E. Handler of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. The risk was not foreseeable (see Tomassi v Town of Union, 46 NY2d 91).

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


text:
    In the Matter of Frank Klein, Doing Business as Fairview Nursing Home, Appellant, v David Axelrod, as Commissioner of the State of New York Department of Health, et al., Respondents.
    Decided September 24, 1981

      APPEARANCES OF COUNSEL

      Marvin L. Tenzer and Lawrence J. Hutchinson for appellant.

      Robert Abrams, Attorney-General (William J. Kogan of counsel), for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Bonnie Michelle W., a Person Alleged to be a Runaway, Respondent. Corporation Counsel of the City of New York, Appellant.
    Argued September 16, 1981;
    decided September 24, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Fay Leoussis and Carolyn E. Demarest of counsel), for appellant.

      Janet R. Fink, Carol Sherman and Elizabeth Johanns for respondent.
   OPINION OF THE COURT

Memorandum:.

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

Once the Pennsylvania court refused to issue a requisition for return of the respondent, the Interstate Compact on Juveniles no longer provided the Family Court with a predicate for jurisdiction over her. With the Interstate Compact rendered inapplicable, appellant cannot argue that the law of Pennsylvania defines the age of majority as 21 and thus confers jurisdiction on the Family Court. That of course would not oust the Family Court of jurisdiction to entertain a proceeding under the laws of this State providing there is a proper factual predicate. In the case now before us, because the Family Court’s jurisdiction extends only to those who are under 18 and respondent has recently reached the age of 18, the Family Court would no longer have jurisdiction over respondent and any other proceedings would be academic. Therefore, and only for this reason, it is appropriate that this proceeding be dismissed.

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

Order affirmed, without costs, in a memorandum.


text:
    Leaseway of Central New York, Appellant, v Climax Manufacturing Co., Inc., Respondent.
    Decided September 24, 1981

      APPEARANCES OF COUNSEL

      James G. Stevens, Jr., for appellant.

      Carl J. Cochi for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Suzanne N. Y., a Child Alleged to be Permanently Neglected. Jewish Child Care Association, Respondent; Elaine S. Y., Appellant.
    Argued September 16, 1981;
    decided September 24, 1981

      APPEARANCES OF COUNSEL

      A. Isadore Eibel for appellant.

      Helen L. Buttenwieser for respondent.

      Janet R. Fink and Carol Sherman for Law Guardian.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to that court for further proceedings in conformity with this memorandum.

The Appellate Division, in reaching the conclusion that it is necessary to terminate the mother’s parental rights to Suzanne, specifically relied on its decision in Matter of Hime Y. (73 AD2d 154). There, upon review of evidence which did not differ materially from that in the record before us now, that court was of the opinion that there was clear and convincing proof that Hime would be in danger of becoming a “neglected child” if she were returned to her mother because of the mother’s “mental illness”. However, on our own review of the record in Hime (52 NY 2d 242), we were compelled to conclude that the inferences on which that determination rested did not meet the “clear and convincing” standard by which it must be established that a parent suffering mental illness will be unable to care for a child “presently and for the foreseeable future” before termination of a parental relationship may be justified (see Social Services Law, § 384-b, subd 4, par [c]). It is for the same reason that we reverse the order appealed from in the present case and remit the case for the Appellate Division to consider, inter alia, whether the evidence of record is sufficient to sustain the alternative contention that Suzanne is a “permanently neglected child” (Social Services Law, § 384-b, subd 4, par [d]).

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

Order reversed, without costs, and matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Brulene Cooperative Apt., Inc., Respondent, v Finance Administrator of the City of New York et al., Appellants.
    Decided September 24, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Renee Modry and Leonard Olarsch of counsel), for appellants.

      William E. Banfield and Donald N. David for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. Petitioner’s service of a certified copy of the court order on which the claim for tax refund is premised within three years of the notice of entry of that order constitutes an application made within the three-year period mandated by subdivision 3 of section 726 of the Real Property Tax Law (Matter of 860 West Tower v Levy, 53 NY2d 450).

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


text:
    Ian McAlley et al., Appellants, v Boise-Griffin Steamship Co., Inc., et al., Respondents, et al., Defendants.
    Decided September 24, 1981


text:
    Martin B. Ashare, Respondent, v Mirkin, Barre, Saltzstein & Gordon, P. C., et al., Appellants.
    Submitted July 27, 1981;
    decided September 24, 1981
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Judge Meyer taking no part.


text:
    Darami Realties, Inc., Appellant, v Spencer Arms Hotel Associates et al., Respondents, and Nevada Meat Market, Appellant.
    Decided September 24, 1981
   Appeals dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 11).


text:
    Lottie Tomaszewski et al., Appellants, v William Cleveland et al., Respondents.
    Submitted August 17, 1981;
    decided September 24, 1981
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the order and judgment as to defendant Martinez, granted. Motion for leave to appeal otherwise denied.


text:
    The People of the State of New York ex rel. James W. White, Appellant, v Supreme Court, New York, et al., Respondents.
    Submitted September 8, 1981;
    decided September 24, 1981
   Motion for leave to appeal dismissed as premature in view of the pendency of a motion for leave to appeal at the Appellate Division, First Department, without prejudice, if so advised, to the making of a timely motion for leave to appeal following an adverse disposition of the motion at the Appellate Division (CPLR 5513, subd [b]; 5602, subd [a]).


text:
    In the Matter of Asen Bros. & Brook, Appellant, v Nathan Leventhal, as Commissioner of the Department of Housing Preservation and Development of New York City, et al., Respondent.
    Argued September 8, 1981;
    decided October 13, 1981

      APPEARANCES OF COUNSEL

      Joseph Gaier and Larry Sutton for appellant.

      Julius A. Copeland and Harry Michelson for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner’s application for “first rents” was denied by the commissioner upon the ground that the renovations undertaken by it did not constitute a substantial rehabilitation of the rental premises. Although petitioner expended in excess of $100,000 on improvements, there was evidence to support the commission’s determination that no structural changes were made and that the 15-apartment complex remained unchanged. Under these circumstances, the commissioner’s determination to deny “first rents” had a rational basis, was not arbitrary or capricious, and, therefore, should not be disturbed. (Administrative Code of City of New York, § Y51-5.0, subd c, par [1] ; § Y51-9.0, subd b; Matter of Colton v Berman, 21 NY2d 322, 329; see CPLR 7803, subd 3.)

We have examined petitioner’s remaining contentions and found them to be without merit.

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

Order affirmed, etc.


text:
    Frank Passantino, Plaintiff, and P & F Machine Corp., Appellant, v Consolidated Edison Company of New York, Inc., Respondent.
    Argued September 9, 1981;
    decided October 13, 1981

      APPEARANCES OF COUNSEL

      Mare Schwartz for appellant.

      Sheila S. Rosenrauch, Ernest J. Williams and Joseph J. Klem for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for determination of questions of fact.

The trial court charged the jury that they could award punitive damages if they found that the conduct of the utility company “was either wanton and reckless or it was malicious”, and that “a malicious act would be one where the [defendant] knows that the plaintiff had certain rights and [it] deliberately interferes with those rights”. Inasmuch as defendant took no exception to this charge and made no request with reference to its subject matter, it became the law of this case. We accordingly had no occasion to address the appropriateness of the charge as an expression of the law applicable to the awarding of punitive damages.

The jury was also instructed, without exception or request, that, while the utility company had the right to enter upon plaintiffs’ premises and to discontinue service without prior notice if its customer was taking service through a tampered meter (as was indisputably the case here), the customer had the right, under section 15 of the Transportation Corporation Law and the pertinent tariff rules, to five days’ notice prior to discontinuance of service for nonpayment for service rendered. Proof was introduced that when the employees of the utility company cut off electrical service to remove the “jumper”, they stated that the current would be off for 15 to 20 minutes. When they left after fixing the meter, however, they informed the individual plaintiff that electricity would be restored after he paid for the electricity he had been receiving. Shortly thereafter he was similarly told by the supervisor of the utility’s property protection unit that power would be restored when “you pay what you owe us”. The next morning, after plaintiff had signed an agreement presented to him by the utility company promising to pay $6,400, half of which he then paid, electrical service was restored, some 20 hours after it had been discontinued. This evidence was sufficient to warrant the jury in finding that the utility company knew that plaintiffs had the right to five days’ advance notice prior to any discontinuance of service for nonpayment, that while the initial interruption of service without notice for tampering may have been warranted, the continued withholding of service after the jumper had been removed was for nonpayment and without notice, and accordingly that defendant, knowing of plaintiffs’ rights, had deliberately interfered with them, thus entitling the corporate plaintiff to an award of punitive damages.

Inasmuch as the reversal at the Appellate Division was on the law, the case must be remitted to that court for determination of questions of fact (CPLR 5613).

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

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

       The charge can also he read as instructing the jury that this right of the utility company existed only if it was the particular customer who had tampered with the meter. Inasmuch as it was not disputed that the jumper in this case antedated plaintiffs’ ownership of the premises, the jury could also have found that the utility company was not authorized in this instance even to discontinue service for tampering. This, too, then might have provided a predicate for the verdict in favor of plaintiffs.


text:
    Estelle Hopfan et al., as Executors of Minnie Serota, Deceased, Respondents-Appellants, v Joseph Harris, Appellant-Respondent.

      Argued September 8, 1981;
    decided October 13, 1981

      APPEARANCES OF COUNSEL

      Michael Wexelbaum for appellant-respondent.

      Arthur C. Kellman for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to plaintiff, and the certified question should be answered in the negative. Summary judgment was properly denied. Triable issues of fact were presented with respect to whether or not the managing agent was the alter ego of the defendant and, if not, whether the refusal of the managing agent to consent to the contract of sale was reasonable. The lower courts were correct in striking four of defendant’s eight affirmative defenses for the reason that they were insufficient as a matter of law. In addition, we find that defendant’s third affirmative defense that the death of the contract-vendee necessarily precluded the managing agent from consenting to the contract and thereby rendered performance impossible is also insufficient as a matter of law and should have been stricken as well.

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

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


text:
    William H. De Vries, Respondent, v Marie A. De Vries, Appellant.
    Submitted September 3, 1981;
    decided October 13, 1981

      APPEARANCES OF COUNSEL

      Alexander Potruch, Kenneth Koopersmith and Michael K. Feigenbaum for appellant.

      John J. Hallissey for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (78 AD 2d 867; see, also, Fairley v Fairley, 75 AD2d 975, affd 53 NY2d 726).

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