text:
    In the Matter of Belnord Holding Corp. et al., Appellants, v Anthony Gliedman, as Commissioner of the Department of Housing Preservation and Development of the City of New York, et al., Respondents.
    Decided June 2, 1983

      APPEARANCES OF COUNSEL

      Jack Newton Lerner for appellants.

      Harry Michelson and Robert H. Berman for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (91 AD2d 911).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Meyer and Simons. Taking ho part: Judge Wachtler.


source: Caselaw Access Project

license: Public Domain

text:
    511 Main Street Corp. et al., Respondents, v Fireman's Fund Insurance Companies, Appellant.
    Submitted April 18, 1983;
    decided June 2, 1983
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).

Judge Simons taking no part.


text:
    David I. Greenberg et al., Appellants, v Oakwood Construction Corp. et al., Respondents, et al., Defendants.
    Submitted April 18, 1983;
    decided June 2, 1983
   Motion, insofar as it seeks leave to appeal from Appellate Division order dated December 2, 1982, denied; motion, insofar as it seeks leave to appeal from Appellate Division order dated February 24, 1983, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution. Twenty dollars costs and necessary reproduction disbursements to respondent Eltra Corporation.


text:
    Health Care Plan, Inc., et al., Appellants, v Victor Bahou, Individually and as President and Commissioner of the Civil Service Commission, Respondent.
    Decided June 2, 1983
   Appeal taken by appellants Epps and Lyons dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that they are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Herbert S. Kassner and Seymour S. Detsky, Attorneys.
    Submitted May 23, 1983;
    decided June 2, 1983
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is involved. (CPLR 5601, subd [b].) Motion for a stay dismissed as academic.


text:
    Lakeside Transport Corp., Respondent, v Rogelio Morales, Appellant.
    Submitted May 9, 1983;
    decided June 2, 1983
   Motion for reconsideration of the Court of Appeals March 31,1983 order of dismissal and for reinstatement of a stay denied. [See 58 NY2d 1111.]


text:
    In the Matter of Empire Furniture Factories, Inc., Doing Business as JGE, as Assignor. Leon C. Marcus, as Assignee, Respondent; David Strauss & Co., Inc., Appellant.
    Argued April 26, 1983;
    decided June 7, 1983
    APPEARANCES OF COUNSEL

      Andrew M. Schnier and Bertram Goldstein for appellant.

      Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the surcharge against appellant vacated.

On November 5,1974, Empire Furniture Factories, Inc., executed a general assignment for the benefit of creditors to respondent León Marcus. The assignee filed a final report and accounting on October 27,1978, and the matter ultimately was referred to a referee. Although the referee approved the assignee’s accounting, he ordered that the assignee’s auctioneer, appellant herein, be surcharged $5,273.40. The surcharge represented the cost of two newspaper advertisements that appellant had placed without first obtaining court approval. Although appellant was never made a party to the proceeding, Supreme Court nevertheless directed that the referee’s order be docketed as a money judgment against it, from which an appeal was taken.

The surcharge against appellant was improper. The courts have broad supervisory powers over the administration of assigned estates (see Debtor and Creditor Law, § 20), and an auctioneer is subject to the summary jurisdiction of the court for which he acts in relation to a general assignment and public sale (see Matter of Creveling & Son Corp. [Elkins], 259 App Div 351, affd no opn 283 NY 760). Nonetheless, “the summary jurisdiction and general supervisory power of the court [as to an auctioneer] are set in motion only by a proceeding to review the actions of the auctioneer or to remove him for conduct against the best interests of the estate” (Matter of Arutt v Multer, 42 AD2d 366, 368). Here, appellant was neither made a party to the proceeding nor given notice that it might be surcharged; its president’s presence as a witness with counsel did not constitute an appearance in the action. Under these circumstances, the imposition of a surcharge deprived appellant of due process of law (see Walker v City of Hutchinson, 352 US 112, 115; Mullane v Central Hanover Trust Co., 339 US 306, 313), and it therefore must be vacated. We pass on no other question.

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

Order reversed, etc.


text:
    The People of the State of New York ex rel. James Horan, Respondent, v New York State Division of Parole et al., Appellants.
    Decided June 7, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Martin Hotvet of counsel), for appellants.

      Alan Rosenberg and William E. Hellerstein for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 1053).

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


text:
    The People of the State of New York, Respondent, v Willet J. Wood, Appellant.
    Submitted May 5, 1983;
    decided June 7, 1983
    APPEARANCES OF COUNSEL

      Robert J. Lunn for appellant.

      Donald O. Chesworth, Jr., District Attorney CMelvin Bressler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be reversed and the information dismissed.

To support a conviction under subdivision 5 of section 240.25 of the Penal Law, the People must establish that the defendant had “engage[d] in a course of conduct or repeatedly commit[ted] acts which alarmfed] or seriously annoy[ed]” another person and -had no legitimate purpose. (Penal Law, § 240.25, subd 5; People v Chasserot, 30 NY2d 898.) Because no evidence was presented at trial that defendant’s conduct was anything other than an isolated incident, the People failed to establish that defendant was guilty of harassment under the subdivision charged.

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

Order reversed, etc.


text:
    Leo Provosty et al., Appellants, v Lydia E. Hall Hospital, Respondent, et al., Defendants. (And Another Action.)
    Decided June 7, 1983

      APPEARANCES OF COUNSEL
    . Thomas F. Meagher and Lawrence B. Brennan for appellants.

      Lola S. Lea for respondent.
   OPINION OF THE COURT

On review of the submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, insofar as it dismissed the complaint in Action No. 1 for the reasons stated with respect to Action No. 1 in the memorandum at the Appellate Division (91 AD2d 658).

Appeal, insofar as taken from so much of the order of the Appellate Division as denied plaintiffs’ cross motion, inter alia, to strike the affirmative defense of the Statute of Limitations in Action No. 2, dismissed, without costs, upon the ground that that portion of the order appealed from does not finally determine the action within the meaning of the Constitution.

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


text:
    George A. Weissblum et al., Appellants, v Mostafzafan Foundation of New York, Formerly Known as the Pahlevi Foundation, Respondent.
    Decided June 7, 1983

      APPEARANCES OF COUNSEL

      Vincent J. Syracuse for appellants.

      Peter I. Livingston for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, defendant’s motion to vacate its default denied and question certified answered in the negative for reasons stated in the dissenting memorandum of Justice Arthur Markewich at the Appellate Division (90 AD2d 741).

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


author: Meyer, J.

text:
    Chase Manhattan Bank, N. A., Respondent, v Patrick Edwards, Appellant.
    Argued April 29, 1983;
    decided June 7, 1983

      APPEARANCES OF COUNSEL

      Francis X. Tucker for appellant.

      Peter L. Rupert for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 935).

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

Meyer, J.

(dissenting). Reliance by the majority here and by the Appellate Division upon Dorsey Prods. Corp. v United States Rubber Co. (21 AD2d 866, 867, affd 16 NY2d 925) is misplaced for several reasons. First, the negligent representation was that the bank’s policy, which was sent to Edwards on November 13, 1978 and approved by him, would be thereafter transferred to cover him, whereas in fact it was canceled by the bank on November 15, 1978. That transaction with Edwards took place more than a month after the contract and mortgage were signed and, therefore, unlike the warranty disclaimed in Dorsey, which preceded the distributorship agreement there involved, is not barred by the merger clause in the contract. The fact that the postcontract representation had its genesis in a luncheon conversation prior to the contract closing is immaterial, for it was the postcontract events which gave rise to the obligation to transfer.

Second, the insurance obligation undertaken by Edwards was to “keep the buildings on the premises insured against loss by fire for the benefit of the mortgagee; that he will assign and deliver the policies to the mortgagee; and that he will reimburse the mortgagee for any premiums paid for insurance made by the mortgagee”. There is no inconsistency between that provision and the subsequent agreement by the bank’s officer to cause the policy, after approval by Edwards, to be transferred to cover Edwards and the bank and, consequently, no violation of the contract provision against oral change of the contract. Cases such as Nassau Trust Co. v Montrose Concrete Prods. Corp. (56 NY2d 175) and Imperator Realty Co. v Tull (228 NY 447) establish that if it is proven that the bank agreed to waive Edwards’ obtaining a policy of insurance, it could not take advantage of his default in doing so, induced by its consent. That being so it is difficult to see why the bank should not be held for its negligent failure to transfer the policy, that failure having resulted in Edwards sustaining an uninsured fire loss.

The moving papers raise factual issues sufficient, if proved, to establish a claim under White v Guarente (43 NY2d 356, 363) for negligent misrepresentation, and nothing in either the contract or mortgage bars that claim. The order of the Appellate Division should, therefore, be reversed and the counterclaim should be reinstated.

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v David Trinidad, Appellant.
    Argued April 29, 1983;
    decided June 7, 1983

      APPEARANCES OF COUNSEL

      Barry S. Stendig and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Defense counsel’s argument on summation that the victim had been prompted by the police to carelessly or deliberately misidentify the defendant as the person who robbed him invited a strong response from the prosecutor (cf. People v Marks, 6 NY2d 67, 77-78). However, the prosecutor exceeded the bounds of proper summation when he argued that the victim would have been “suicidal or foolish” to do so and twice thereafter repeated that remark, when there was no evidence that the defendant or anyone allied with him had injured or threatened the witness in connection with his testimony (compare People v Ashwal, 39 NY2d 105, with People v Shilitano, 218 NY 161; and People v Plummer, 36 NY2d 161). Under the circumstances, although the defendant’s objection was sustained, the defendant was entitled to have the jury instructed that the prosecutor’s remarks were unfounded, and improper, and should be disregarded. The court’s refusal to grant the defendant’s request for curative instructions constituted reversible error (People v Ashwal, supra, p 111).

Since there must be a new trial we note that the court did not err in admitting the statement allegedly made by the defendant while concealed behind a door in the apartment complex. Unlike People v Smith (52 NY2d 802), in this case there was evidence to connect the defendant with the statement sufficient to submit it for the jury’s consideration (cf. People v Mirenda, 23 NY2d 439).

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

Order reversed, etc.


text:
    Joseph Meadvin, Respondent, v Buckley-Southland Oil Company, Appellant.
    Argued May 3, 1983;
    decided June 7, 1983

      APPEARANCES OF COUNSEL

      William H. Bogart for appellant.

      James A. Meggesto for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and the order of Supreme Court, Onondaga County, reinstated for reasons stated in the dissenting memorandum at the Appellate Division (84 AD2d 907, 908).

Concur: Chief Judge Cooke and Judges Jones, Wachtler and Meyer. Judge Jasen dissents and votes to affirm for reasons stated in the memorandum of the Appellate Division (84 AD2d 907). Taking no part: Judge Simons.


text:
    M A B Equities, Inc., Appellant, v Hoover Realty Associates, Respondent.
    Argued May 4, 1983;
    decided June 7, 1983

      APPEARANCES OF COUNSEL

      Kenneth L. Shapiro, Julian S. Greenspun and Steven J. Ahmuty, Jr., for appellant.

      Ralph A. Matalón and Martin B. Nadie for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. There is evidence in the record to support the affirmed findings of fact.

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


text:
    City of Buffalo Urban Renewal Agency, Appellant, v Lane Bryant Queens, Inc., et al., Respondents.
    Argued May 5, 1983;
    decided June 7, 1983

      APPEARANCES OF COUNSEL

      James L. Magavern and Susan C. Goldberg for appellant.

      David C. Diefendorf for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (90 AD2d 976).

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


text:
    Frank S. Dano et al., Appellants, v Royal Globe Insurance Company et al., Defendants, and William S. Andrews et al., Individually and as Copartners Doing Business under the Firm Name and Style of Andrews, Huffman & Donnelly, Respondents.
    Argued May 5, 1983;
    decided June 7, 1983

      APPEARANCES OF COUNSEL

      Ira M. Ball for appellants.

      William. S. Andrews for respondents.
   OPINION OF THE COURT

Memorandum.

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

The first cause of action for defamation is against the Andrews law firm, Royal Globe and Patrick DiDomenico, Royal’s manager. It concerns a disclaimer letter written by the Andrews law firm to plaintiffs, their attorney and their adjuster. Nothing in the complaint or affidavits submitted on plaintiffs’ behalf presents a triable issue as to publication by Royal Globe or DiDomenico. As to the Andrews firm, although there is no question of publication, we agree with the Appellate Division that the letter is qualifiedly privileged. It was, therefore, plaintiffs’ burden to show that defendant Andrews acted with malice and, there being nothing to establish that examination of Turnbull could reasonably be expected to result in evidence of malice on the part of the Andrews firm and no other examination having been requested, CPLR 3212 (subd [f]) provided no basis for denial of the motion of defendants (other than Turnbull) for summary judgment. As we held in Zuckerman v City of New York (49 NY2d 557, 562): “one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.”

The third cause of action was also properly dismissed. Assuming that section 40-d of the Insurance Law can be read to create a private cause of action (see Hubbell v Trans World Life Ins. Co. of N. Y., 50 NY2d 899, 901), we find in the papers no “evidentiary proof in admissible form” of a “general business practice” on the part of Royal Globe, as that section requires. Nor, even if we assume that bad-faith cases such as Gordon v Nationwide Mut. Ins. Co. (30 NY2d 427), upon which plaintiffs rely, apply to a failure to settle an insured’s first-party claim under a fire insurance policy, as distinct from the failure to defend or settle a third party’s claim against the insured as required by a liability policy (cf. Halpin v Prudential Ins. Co. of Amer., 48 NY2d 906, 907-908), have plaintiffs presented evidentiary proof of the gross disregard of the insured’s rights which are an essential element of such a cause of action.

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

Order affirmed, with costs, in a memorandum.


text:
    Sam Agati, Respondent, v Phyllis Agati, Appellant.
    Decided June 7, 1983

      APPEARANCES OF COUNSEL

      Sidney L. Manes, for appellant.

      William F. Maginn, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), the order of the Appellate Division should be affirmed, with costs.

The weight of the evidence more nearly comports with the Appellate Division’s factual finding that petitioner did not waive his right to a deed to the former marital residence. Furthermore, we agree with the Appellate Division that the unclean hands doctrine does not bar petitioner’s application to enforce the real estate transfer provisions of the divorce judgment (see Weiss v Mayflower Doughnut Corp., 1 NY2d 310, 316).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of American International Group, Inc., et al., Respondents, v James H. Tully, as President of the State Tax Commission, et al., Appellants.
    Argued May 2, 1983;
    decided June 7, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Maurice K. Peaslee and Peter H. Schiff of counsel), for appellants.

      Michael D. Brown and Christopher B. Hitchcock for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (89 AD2d 687).

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


text:
    The People of the State of New York, Respondent, v Dolores Donovan, Appellant.
    Argued May 4, 1983;
    decided June 7, 1983

      APPEARANCES OF COUNSEL

      Norman T. Corenthal for appellant.

      Denis Dillon, District Attorney (Lawrence J. Schwarz and Anthony J. Girese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The sentence imposed cannot be said to constitute cruel and unusual punishment as applied in light of the decisions of this court in People v Jones (39 NY2d 694) and People v Broadie (37 NY2d 100, cert den 423 US 950) and of the Supreme Court in Hutto v Davis (454 US 370) and Rummel v Estelle (445 US 263).

Nor do defendant’s other contentions avail her. The claimed evidentiary errors were not objected to at trial and thus are not preserved for our review. Evidence corroborating an accomplice need only tend to connect the defendant to the crime so as reasonably to satisfy the jury that the accomplice is telling the truth (People v Glasper, 52 NY2d 970). Here the note in defendant’s possession and her concession that the accomplice returned to the garage and conversed with her while the sale to the undercover officer was being negotiated were sufficient to take the case to the jury.

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

Order affirmed in a memorandum.


text:
    In the Matter of John Doe, Doing Business as Anonymous Hospital, Appellant, v Edward J. Kuriansky, as Deputy Attorney-General of the State of New York, Respondent.
    Decided June 7, 1983

      APPEARANCES OF COUNSEL

      Gerald Walpin for appellant.

      Edward J. Kuriansky, pro se, and Richard D. Carruthers for Edward J. Kuriansky, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (91 AD2d 1068; see, also, Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130; Matter of Grand Jury Proceedings [Doe], 56 NY2d 348).

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


text:
    In the Matter of Thomas L. Baasch, Appellant, v Robert G. Leonard, as Justice of the Supreme Court, et al., Respondents.
    Submitted May 2, 1983;
    decided June 7, 1983
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the grounds (1) that an appeal from the order of the Appellate Division dated January 3,1983 was previously dismissed by this court on the ground that no substantial constitutional question is directly involved (58 NY2d 1112) and (2) the order of the Appellate Division, dated February 24, 1983, denying reargument does not finally determine the proceeding within the meaning of the Constitution. Cross motion for leave to appeal denied.


text:
    In the Matter of Robert D. L. Gardiner, Respondent, v Michael A. Lo Grande, as Supervisor of the Town of Islip, et al., Appellants.
    Submitted May 16, 1983;
    decided June 7, 1983
   Motion to dismiss the appeal denied.


text:
    In the Matter of John Johnson, Also Known as Robert Summers, Appellant, v Peggy Bernheim, as Justice of the New York Supreme Court, Respondent.
    Submitted April 25, 1983;
    decided June 7, 1983
   On the court’s own motion, appeal taken as of right dismissed for untimeliness (CPLR 5513, subd [a]). Motion for leave to appeal dismissed for untimeliness (CPLR 5513, subd [b]). Motion to prosecute appeal as a poor person dismissed as academic.


text:
    Mildred A. McLearn, Appellant, v Cowen & Co. et al., Defendants, and Merrill Lynch, Pierce, Fenner & Smith, Incorporated, Respondent.
    Submitted May 23, 1983;
    decided June 7, 1983
   Renewed motion for waiver of 30-day time limit and for reargument granted. Case set down for argument on September 19, 1983. [See 48 NY2d 696.]


text:
    Lawrence W. Wardell, Appellant, v Wilbert F. Holler et al., Respondents.
    Decided June 7, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that 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]; CPLR 5601, subd [b], par 2).


text:
    Richard M. Atkinson et al., Respondents, v County of Oneida, Appellant.
    Argued April 25, 1983;
    decided June 9, 1983

      APPEARANCES OF COUNSEL

      Bartle J. Gorman, Earle C. Bastow and William B. Calli, County Attorney {John M. Freyer and Thomas R. Smith of counsel), for appellant.

      Terry D. Smith for respondents.

      Robert Abrams, Attorney-General {Michael S. Buskus and Peter H. Schiff of counsel), for State of New York, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Plaintiff was severely injured when the automobile he was driving southbound on Preston Hill Road was struck by an eastbound automobile at the intersection with Hillsboro Road, both of these highways being county roads. Plaintiff brought this personal injury action against the County of Oneida alleging that the county had negligently failed to review its existing traffic safety plan in light of the accident history at the intersection and to alter the plan by maintaining additional signs on both roads.

Although the county had a continuing duty to review its traffic safety plan in light of actual operation (see Gutelle v City of New York, 55 NY2d 794), on the facts of this case it cannot be said that plaintiff’s injuries were proximately caused by a breach of duty by the county. In light of this disposition, the question of what standard of care applies to the county’s duty to review its traffic safety plan is not reached.

On the north-south road, the county had erected cautionary signs advising of the intersection ahead. The east-west road had “Stop” signs at the intersection and “Stop Ahead” signs placed more than 500 feet in advance of the intersection. Plaintiff argues that the county also should have maintained flashing red lights on the east-west road and flashing yellow lights on the north-south road with an advisory speed sign for southbound motorists, and that its failure to do so was a proximate cause of his injuries.

Plaintiff, however, admitted his familiarity with the location and the character of the intersection, having driven through it as many as 10 to 20 times a day over a five-year period. The driver of the other automobile had lived in the area for 24 years at the time of the accident and was also familiar with the intersection and its right of way.

Plaintiff argues that added lights and signs would have better served to warn drivers of the intersection’s character. Inasmuch as both drivers were well acquainted with the intersection and its right of way and all possible obstructions, under the instant facts, the county’s failure to erect the additional lights and sign cannot be deemed a proximate cause of plaintiff’s injuries.

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

Order reversed, etc.


text:
    John Kennedy, Appellant, v Syosset Hospital et al., Respondents, et al., Defendant.
    Argued May 4, 1983;
    decided June 9, 1983

      APPEARANCES OF COUNSEL

      Herman Schmertz for appellant.

      Patricia D’Alvia and Andrea M. Alonso for Syosset Hospital, respondent.

      Norman Bard, Sandra Krevitsky, George Nicholson and Anthony L. Schiavetti for Nicholas Poloukhine, respondent.
   OPINION OF THE COURT

Memorandum.

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

At the trial the plaintiff proceeded on the theory that negligent care on the part of the defendant hospital, and not a surgical error by the treating physician caused the plaintiff’s injury. Indeed, plaintiff took no exception to, and seemed to encourage, the dismissal of the action against the doctor for failure of proof.

The liability issue submitted to the jury, without objection, was confined to plaintiff’s claim that the negligent administering of an injection by an employee of the hospital caused his injury. The Appellate Division was unanimous in affirming the jury verdict that there was no such liability and that determination will not be disturbed on this appeal.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Maggie Evans Parch, Appellant.
    Argued May 3, 1983;
    decided June 9, 1983
    APPEARANCES OF COUNSEL

      Sarah M. Burr and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (Lucille A. DiBello, Barbara D. Underwood and Roseann B. Mackechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of manslaughter in the first degree for the stabbing death of her husband. She was represented by two assigned attorneys during the various stages of the proceedings. Her claim on this appeal is that their representation was inadequate and that she was denied effective assistance of counsel, principally because the original counsel presented no witnesses at a CPL 730 competency hearing, because counsel offered to stipulate that defendant had caused her husband’s death and to waive a trial by jury in return for a verdict of not guilty by reason of insanity (which was not accepted), and because new counsel was substituted to represent her on the eve of trial.

Defendant was not denied effective assistance of counsel. The attorney who replaced the original defense counsel for the trial was an experienced lawyer, he had the first attorney’s work product at his disposal and his participation on the first day of trial was limited to the cross-examination of fact witnesses for the prosecution (see Morris v Slappy, 461 US _, 103 S Ct 1610). At the conclusion of that session, the court granted an adjournment of several days for him to prepare the defense’s case. Counsel’s cross-examination and his later direct examination of the psychiatrist who testified for the defense revealed his familiarity with the details of the case, and although counsel’s questioning of the sole witness for the defense could arguably have been more thorough, it by no means indicated a failure to properly interview the witness before putting him on the stand (see People v Love, 57 NY2d 998).

It is clear from the record that both of defendant’s attorneys recognized that she had only one possible defense, insanity, and they chose to concentrate on it rather than attempt to rebut the overwhelming evidence of defendant’s commission of the crime. We have previously stated that an attorney is not required to argue factual innocence at the expense of a stronger defense (People v Baldi, 54 NY2d 137, 148) and counsel’s failure to succeed after relying on the defense of insanity may not be viewed, with the benefit of hindsight, as evidence of ineffectiveness (see People v Aiken, 45 NY2d 394).

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

Order affirmed in a memorandum.


text:
    Robert D. Osterhout et al., Appellants, v Hartford Accident & Indemnity Company, Respondent.
    Decided June 9, 1983

      APPEARANCES OF COUNSEL

      Mahlon D. Clements for appellants.

      Robert Small for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 1172).

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


text:
    Hugh L. Carey, as Governor of the State of New York, Respondent, v Oswego County Legislature, Appellant.
    Decided June 9, 1983

      APPEARANCES OF COUNSEL

      Robert J. Nicholson, County Attorney, for appellant.

      Robert Abrams, Attorney-General (.Lawrence L. Doolittle of counsel), for respondent.

      James G. Sweeney, County Attorney, for New York State County Attorneys Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion by Justice John T. Casey at the Appellate Division, except that we express no view on the question of venue, which issue has been apparently abandoned by the parties. We note, in addition, that notwithstanding the fact that the appeal has been rendered moot by the election of a District Attorney, we deem it appropriate to reach the merits because of the substantial importance and recurring nature of the issue presented.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Friends of the Pine Bush et al., Respondents-Appellants, v Planning Board of the City of Albany et al., Appellants-Respondents. G.M.R. Properties, Inc., et al., Intervenors-Respondents.
    Argued May 4, 1983;
    decided June 9, 1983

      APPEARANCES OF COUNSEL

      Vincent J. McArdle, Jr., Corporation Counsel (Condon A. Lyons of counsel), for appellants-respondents.

      Lewis B. Oliver, Jr., for respondents-appellants.

      Peter A. Lynch for intervenors-respondents.
   OPINION OF THE COURT

Order affirmed, with costs. The Appellate Division did not err in retaining the appeal despite mootness or in converting the proceeding to an action for declaratory judgment. On the merits we affirm for the reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (86 AD2d 246).

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


text:
    In the Matter of Edward J. Shannon, Appellant, v Board of Trustees of the New York City Employees' Retirement System et al., Respondents.
    Decided June 9, 1983

      APPEARANCES OF COUNSEL

      Morris Weissberg for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Francis F. Caputo of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (92 AD2d 528; see, also, Matter of Valentin v Board of Trustees of N. Y. City Employees’ Retirement System, 59 NY2d 702).

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


text:
    In the Matter of William P. McManus, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York and as Executive Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.
    Decided June 9, 1983

      APPEARANCES OF COUNSEL

      Carol Mellor for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Edward F. X. Hart of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (92 AD2d 771; see, also, Matter of Cardone v Codd, 59 NY2d 700).

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


text:
    In the Matter of C. Herbert Kaufman, Appellant, v Bertram D. Sarafan, as Member of the New York State Racing and Wagering Board, et al., Respondents.
    Decided June 9, 1983

      APPEARANCES OF COUNSEL

      Bruce A. Burns for appellant.

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

Memorandum.

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

Petitioner’s horse, “Blazin’ C”, was disqualified as the winner of the fifth race at Aqueduct Racetrack on January 18, 1980 for carrying an incorrect weight. Based on its recent racing history, “Blazin’ C” was not entitled to the five-pound weight allowance with which it ran in the subject race. Since the ultimate responsibility for insuring that a horse carries the correct weight has been placed upon the owner (9 NYCRR 4033.7), petitioner cannot be heard to blame the racing secretary for the error.

Furthermore, petitioner’s claim that the New York State Racing and Wagering Board failed to follow its own rule which requires that objections be made in writing (9 NYCRR 4039.11) is without merit. The board interpreted this rule as applying to objections made by persons other than the track stewards. Since the purpose of the rule, as interpreted by the board, is to assist the stewards by discouraging disgruntled owners, trainers and jockeys from making vague and frivolous objections, it cannot be said that the board’s determination that the writing requirement does not apply when the stewards take action on their own initiative was arbitrary and capricious. Accordingly, the board’s interpretation of its own rule will not be disturbed. (Matter of Bernstein v Toia, 43 NY2d 437, 448; Ostrer v Schenck, 41 NY2d 782, 786.)

In the case before us, the record supports the factual determination below that the stewards and not the agent of a disappointed jockey took formal action in this matter, although the information they acted upon came from the assistant racing secretary who had been orally notified of a potential impropriety by that agent. The issue is, therefore, beyond this court’s scope of review. (CPLR 5501, subd [b]; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 107, p 448.) Consequently, the written objection requirement of 9 NYCRR 4039.11, as interpreted by the board, was not violated by the failure of the stewards to notify each other in writing of the action they intended to take.

Chief Judge Cooke and Judges Jasén, Jones, Wachtler, Meyer and Simons concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, in a memorandum.


text:
    Jane Broder, Respondent, v Alvin Broder, Appellant.
    Decided June 9, 1983

      APPEARANCES OF COUNSEL

      Leonard C. Shalleck for appellant.

      Robert Z. Dobrish for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, and the question certified answered in the affirmative. No complaint or responsive pleading ever having been served or filed in the action commenced in 1979, plaintiff was within her rights to discontinue that action by notice. (CPLR 3217, subd [a], par 1; Battaglia v Battaglia, 59 NY2d 778.)

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


text:
    In the Matter of the Claim of John C. Bauman, Claimant, v Chili Furniture & Appliances, Inc., et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers’ Compensation Board, Respondent.
    Decided June 9, 1983

      APPEARANCES OF COUNSEL

      Patrick E. Harnedy for appellant.

      John Clapper, III, for Chili Furniture & Appliances and another, respondents.

      Robert Abrams, Attorney-General (Morris N. Lissauer of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and the decision of the Workers’ Compensation Board reinstated for reasons stated in the dissenting memorandum of Justice T. Paul Kane at the Appellate Division (92 AD2d 974, 976).

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


text:
    In the Matter of John H. and Peter C. (Anonymous), Children Alleged to be Permanently Neglected. Catholic Home Bureau, Respondent; Margaret C. (Anonymous), Appellant.
    Submitted May 31, 1983;
    decided June 9, 1983
   Application for leave to appeal dismissed for failure to file papers required under rule 500.9 (a) of the Rules of the Court of Appeals (22 NYCRR 500.9 [c]).


text:
    Ethel C. Irolla, Also Known as Peggy E. Irolla, Individually and on Behalf of All Others Similarly Situated, Appellant, v New York City Department of Social Services et al., Respondents.
    Submitted May 31, 1983;
    decided June 9, 1983
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements to respondent State Department of Social Services, upon the ground that the order sought to be appealed from does not finally determine the proceeding and is not a nonfinal order of the type which is within the meaning of CPLR 5602 (subd [a], par 2).


text:
    Larry A. Westerman, Appellant, v Deborah Westerman, Respondent.
    Decided June 9, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the Appellate Division order of unanimous affirmance (CPLR 5601).


text:
    The People of the State of New York, Appellant-Respondent, v Stanley Zaborski, Sr., Respondent-Appellant.
    Argued April 28, 1983;
    decided June 14, 1983
    APPEARANCES OF COUNSEL

      Michael Kavanagh, District Attorney {Marsha Solomon of counsel), for appellant-respondent.

      Peter L. Maroulis, Gerald V. Hayes and Thomas J. O’Neill for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified and the matter remitted to the Ulster County Court for a new trial in accordance with this memorandum and, as so modified, affirmed.

Defendant, the proprietor of a second-hand goods shop, was convicted of two counts of criminal possession of stolen property in the second degree. The conviction arose out of defendant’s purchase of previously stolen goods from a police agent. The Appellate Division modified by reducing the conviction to two counts of attempted criminal possession of stolen property in the second degree. Both defendant and the People were granted leave to appeal to this court.

Police had suspected that defendant was operating as a “fence” for stolen goods. On August 13,1980, a police agent entered defendant’s shop and sold him items police had recovered from prior burglaries. Defendant explained the purchase as made in response to an antique dealer’s request to recover items taken from his store in a recent burglary, if they became available.

At trial, during the prosecution’s case, defense counsel inexplicably announced, “Your honor, for the record I raise the defense of entrapment at this point.” Counsel never again referred to the matter. In response to the asserted defense, the prosecution offered the testimony of three witnesses that defendant had knowingly received stolen goods from them in the past.

Defendant argues on his appeal that he was deprived of effective assistance of counsel (see US Const, 6th Arndt; NY Const, art I, § 6). In reviewing claims of ineffective assistance of counsel care should be taken “to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis” (People v Baldi, 54 NY2d 137, 146-147). A review of the record in this case indicates that rather than undertaking “a misguided though reasonably plausible strategy decision” (People v Bell, 48 NY2d 933, 935), defense counsel embarked on an inexplicably prejudicial course.

The affirmative defense of entrapment was totally at odds with defendant’s explanation that he had willingly received the goods from the police agent inasmuch as the defense of entrapment is available only to defendants who were “induced or encouraged” to commit the charged crime (Penal Law, § 40.05). Moreover, defendant’s predisposition to commit the crime having been brought into issue, the prosecution was able to introduce highly damaging evidence. In addition, the damage to defendant’s case was exacerbated by other conduct of counsel, including his repeated eliciting of damaging evidence when cross-examining prosecution witnesses. Viewed in its entirety, the record demonstrates that defendant was not “provided meaningful representation” (People v Baldi, 54 NY2d 137, 147, supra).

The (People argue on their appeal that the Appellate Division erred in holding that it was legally impossible for defendant to have committed the crime for which he was convicted and in reducing defendant’s conviction to attempted criminal possession of stolen property. This court finds no error in this regard. On retrial, therefore, defendant may only be retried for attempted criminal possession of stolen goods. At common law, goods once stolen but recovered and used by police for a subsequent sale were held to be no longer stolen, and a person who then received the goods could not be prosecuted for either receiving or attempting to receive stolen goods (see People v Jaffe, 185 NY 497). The Legislature has restricted this result by disallowing legal impossibility as a defense to a charge of attempt of a crime (see Penal Law, § 110.10). Although the goods sold to defendant were burglary proceeds, upon their recovery by police they lost their taint which thereby made it legally impossible for defendant to possess stolen property. It is irrelevant that, at the time of the sale to defendant, the true owners of the property had not been located; from the time of recovery, the police were, in effect, agents of the rightful owners holding the property on their behalf (see Penal Law, § 450.10).

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

Order modified, etc.


text:
    In the Matter of National Farmers Organization, Inc., Respondent, v J. Roger Barber, as Commissioner of the New York State Department of Agriculture and Markets, Appellant.
    Decided June 14, 1983

      APPEARANCES OF COUNSEL

      Thomas G. Conway and Michael McCormick for appellant.

      Arnold W. Proskin, P. C., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and the determination of the Commissioner of the Department of Agriculture and Markets reinstated (Matter of Eastern Milk Producers Coop. Assn. v State of New York Dept. of Agric. & Markets, 58 NY2d 1097).

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


text:
    The People of the State of New York, Appellant, v Charles B. Huntley, Respondent.
    Argued April 27, 1983;
    decided June 14, 1983

      APPEARANCES OF COUNSEL

      Richard A. Hennessy, Jr., District Attorney {John A. Cirando, Gail N. Uebelhoer and Michael P. Marmor of counsel), for appellant.

      Eric M. Alderman and Gerald T. Barth for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division granting a new trial should be affirmed.

We agree with the Appellate Division that it was error for the trial court to refuse to charge, as requested, a justification defense on the lesser included charge of manslaughter in the second degree. (Penal Law, §§ 125.15, 125.25.)

Since a new trial before a new jury is required by this holding, we do not now address or decide whether the defendant’s due process rights were violated by any statements made by an individual juror during the course of the jury’s deliberations.

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

Order affirmed in a memorandum.


text:
    In the Matter of Paul L. McGee, a Justice of the Peru Town Court, Clinton County, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued May 3, 1983;
    decided June 14, 1983
    APPEARANCES OF COUNSEL

      Louis E. Wolfe for appellant.

      Gerald Stern and Jean M. Savanyu for respondent.
   OPINION OF THE COURT

Memorandum.

The determination of the State Commission on Judicial Conduct, directing that petitioner, a Justice of the Peru Town Court, Clinton County, be removed from office, should be accepted. A review of the record clearly establishes the propriety of the commission’s findings of fact and conclusions of law.

According to the credible testimony of various individuals, including a New York State trooper, petitioner, during the period from February, 1979 through January, 1981, routinely failed to advise defendants appearing before him of their constitutional and statutory rights, including the right to consult an attorney. Occasionally, he would actually discourage those individuals from seeking legal advice. Furthermore, it appears to have been standard procedure in petitioner’s courtroom for defendants to be found guilty and fined or jailed without being afforded the opportunity to plead not guilty and stand trial. When questioned about one such occurrence involving a woman accused of shoplifting, petitioner explained that “she had the goods on her. She had to be guilty. Am I right or wrong.” On another occasion, the petitioner issued a warrant for the arrest of a woman who had stopped payment on a check she had given the Judge as payment of a previous fine. When she appeared before him, he immediately pronounced her guilty without informing her of the charge against her or advising her of her right to counsel. When questioned about this incident, petitioner admitted that he had convicted her of the “bad check” charge and explained that the fact she had stopped payment on the check was proof enough for him that she had committed a crime.

We also accept the commission’s findings that petitioner coerced guilty pleas, often after conducting improper ex parte conferences with the arresting officers, and showed a predisposition toward the prosecution. The Judge admitted that in IIV2 years on the Bench he had “thousands and thousands” of cases, but only one had ever gone to trial. In addition, he conceded his total disregard for statutory record-keeping requirements, stating only that they were too complicated for him to understand.

We accept the commission’s determination that the petitioner has abused the power of his office in a manner that has brought disrepute to the judiciary and has irredeemably damaged public confidence in the integrity of his court. Such a breach of the public trust warrants removal.

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

Determined sanction accepted, without costs, and Paul L. McGee removed from the office of Justice of the Peru Town Court in a memorandum.


author: Jasen, J.

text:
    In the Matter of Sisters of Charity Hospital of Buffalo, Appellant, v David Axelrod, as Commissioner of Health of the State of New York, Respondent.
    Argued May 5, 1983;
    decided June 14, 1983

      APPEARANCES OF COUNSEL

      Gerard A. Dupuis and Leonard C. Homer for appellant.

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

      Peter F. Nadel, Stephen L. Ratner and Edward S. Kornreich for New York City Health and Hospitals Corporation, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (89 AD2d 821).

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

Jasen, J.

(dissenting). Since I conclude that the respondent failed to offer substantial evidence to demonstrate a rational basis for its method of determining petitioner’s 1980 Medicaid reimbursement, I respectfully dissent.

After determining that petitioner made a good-faith effort to place patients no longer requiring acute nursing care into less intensive care facilities but were unable to do so due to a shortage of available beds in such facilities, respondent adjusted petitioner’s average length of stay standard to reflect the elimination of alternate care days. However, respondent then applied a reduced one-half day length of stay corridor, as opposed to the one-day corridor set forth in its own regulations, in computing petitioner’s 1980 reimbursement rate. This resulted in petitioner being denied reimbursement for a substantial amount of services actually rendered.

Neither the 1980 methodology published by the Office of Health Systems Management nor any statutes or regulations authorized respondent to use such a method of calculating a hospital’s rate of reimbursement. Moreover, respondent’s own regulation required that a one-day corridor be applied. (10 NYCRR 86-1.14 [c], now 86-1.14 [d].)

In response to petitioner’s challenge to the assigned rate, respondent offered no substantial evidence demonstrating the way in which it arrived at the one-half day corridor figure. This alone is sufficient to require that the determination be set aside. (Matter of Jewish Mem. Hosp. v Whalen, 47 NY2d 331, 343.) Additionally, the record is devoid of facts indicating that the methodology employed here was used in computing rates for other facilities. Moreover, no evidence was introduced by respondent to show that its method of calculating petitioner’s rate was designed to or actually did standardize reimbursement rate assignments to hospitals on a State-wide basis.

It can only be inferred, therefore, that respondent engaged in nothing more than a retroactive application of its amended 1981 regulations which provide for the application of a one-half day corridor. Since this was arbitrary, capricious and irrational, the order of the Appellate Division should be reversed. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)

Order affirmed, etc.


text:
    In the Matter of Katrina C. Yeo, Appellant, v Michael J. Cornaire, Respondent.
    Decided June 14, 1983

      APPEARANCES OF COUNSEL

      Thomas J. O’Connor for appellant.

      Kenneth T. Gibbons for respondent.

      David Murphy, Law Guardian.

   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (91 AD2d 1153).

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


text:
    1036 Park Corporation, Respondent, v Morton Rubin et al., Appellants.
    Decided June 14, 1983

      APPEARANCES OF COUNSEL

      Jolene R. Marion for appellants.

      Howard J. Adler for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (92 AD2d 452).

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


text:
    Raymond Ward, Respondent, v George K. Gresham et al., Appellants, and State Farm Insurance Company, Respondent. (And a Third-Party Action.)
    Decided June 14, 1983

      APPEARANCES OF COUNSEL

      Carl Radin for George K. Gresham, appellant.

      Delia M. Guazzo for Motor Vehicle Accident Indemnification Corporation, appellant.

      Bertram Herman for State Farm Insurance Company, respondent.
   OPINION OF THE COURT

Memorandum.

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

The premium finance agency, having fully complied with subdivision 1 of section 576 of the Banking Law in sending the notice of intent to cancel and the subsequent notice of cancellation, was not required to comply with section 313 of the Vehicle and Traffic Law, relating to the provision of an additional time period prior to cancellation by an insurer. The Legislature has indicated that the procedures to be followed in canceling a policy differ for insurers and premium finance agencies, and given the detailed procedures specifically applicable to premium finance agencies, we conclude that it would be inappropriate to require such agencies to comply with all additional procedures imposed upon insurers (see Banking Law, § 576, subd 1, par [e]). Further, we agree with the Appellate Division that the record does not support a finding that the premium finance agency failed to remit excess unearned premiums to the insured. Accordingly, it is unnecessary to determine whether a failure to do so renders the attempted policy cancellation ineffective (see Banking Law, § 576, subd 1, par [f]). Similarly, we do not pass upon the issue reached by the Appellate Division concerning whether failure to file a notice of termination with the Commissioner of Motor Vehicles (see Banking Law, § 576, subd 1, par [g]) invalidates the cancellation inasmuch as appellants have not raised this issue.

Finally, we have reviewed appellants’ contentions concerning defects in the form and content of the premium finance agreement, as well as the claimed unconscionability of the agreement, and conclude that those issues which are properly preserved for our review are without merit.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Pedro Hernandez, Appellant.
    Decided June 14, 1983

      APPEARANCES OF COUNSEL

      Jonathan M. Jacobson for appellant.

      Mario Merola, District Attorney (.Richard E. Haftel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

It was error for the Trial Judge to refuse to charge as requested by defendant’s attorney that there was no evidence that an accomplice had participated in any of the crimes charged and to answer affirmatively the jury’s question whether if an accomplice to a burglary breaks a window to effect entry all participants in the burglary are guilty of criminal mischief (People v Montgomery, 176 NY 219, 230, 232; see People v Stevenson, 31 NY2d 108). That the jury had posed an earlier inquiry in words including the phrase “based on the evidence” is irrelevant, there being no evidence upon which they could find that there was an accomplice. Likewise irrelevant is the fact that the question affirmatively answered by the Trial Judge ultimately addressed only the criminal mischief count, for it was predicated on their being “an accomplice to a burglary” (emphasis supplied) and was preceded by a broader inquiry concerning accomplices generally which the Trial Judge had declined to answer.

Defendant testified that he discovered one of the complainant’s dogs on the apartment stairs, took it back to complainant’s apartment and found the door open and the apartment in disarray. He also called as a witness the arresting officer who testified that defendant was arrested in his apartment, but that a search of the area turned up none of the property claimed to have been stolen. By arguing based upon that evidence that someone other than defendant had burglarized complainant’s apartment, defendant’s attorney did not open the door to an accomplice theory as to which there was no evidence. Nor did his failure to object to the prosecutor’s suggestion in summation of the possibility of an accomplice warrant the Trial Judge’s denial of his request and affirmative response to the inquiry, for that failure could not supply the missing evidence necessary to support the affirmative response.

That the improper accomplice charge may well have been potent in shaping the verdict on all of the charges is suggested by the questions asked by the jury, as indicated above. At the very least, it adversely affected defendant by explaining away the facts on which he based his claim of innocence. There should, therefore, be a new trial on the entire indictment, including the assault charge based as it was on. the claim that physical injury to complainant was caused during the commission of a felony.

The only objection to the proof of value having been that it was not the best evidence, defendant’s present argument as to its sufficiency to prove the larceny charge was not preserved and is not considered.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed and case remitted to Supreme Court, Bronx County, for a new trial, in a memorandum.


text:
    Forest City Enterprises, Inc., et al., Appellants, v State of New York, Respondent.
    (Claim No. 62639.)
    Decided June 14, 1983

      APPEARANCES OF COUNSEL

      Philip S. Gellman for appellants.

      Robert Abrams, Attorney-General (Dennis Hurley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

We agree with the Appellate Division that no change in use of claimants’ remaining land was occasioned by appropriation of that part of it closed to Millersport Highway. As to the remaining issue, whether claimants suffered a loss in consequence of the increased distance between their property and the intersection of Millersport Highway and Maple Road, the implicit determination of the Appellate Division that no compensable damages occurred for this reason more nearly comports with the weight of the evidence.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order, insofar as appealed from, affirmed, with costs, in a memorandum.


text:
    In the Matter of Robert Aprile et al., Appellants, v Michael Lo Grande et al., Constituting the Town Board of the Town of Islip, et al., Respondents.
    Argued April 28, 1983;
    decided June 14, 1983

      APPEARANCES OF COUNSEL

      Patrick Kevin Brosnahan, Jr., and Patrick J. Shooltz for appellants.

      William R. Bennett, Town Attorney (Guy W. Germano and Christine C. Hilgendorff of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (89 AD2d 563).

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


text:
    First National State Bank of New Jersey, Respondent, v Alpha Hermetic, Inc., Appellant.
    Decided June 14, 1983

      APPEARANCES OF COUNSEL

      Edward C. Cerny, III, for appellant.

      Arthur C. Linderman and Jeffrey L. Kreisberg for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant contends that upon Special Term’s vacatur of the temporary restraining order enjoining disposition of its property, it was entitled pursuant to CPLR 6212 (subd [e]) to damages resulting from the restraint. Specifically, it seeks attorney’s fees expended in obtaining the vacatur. CPLR 6212 (subd [e]) provides that plaintiff shall be liable to defendant for damages, including attorney’s fees, which may be sustained by reason of an attachment if it is finally decided that plaintiff was not entitled to attachment of defendant’s property. Inasmuch as no motion was made under CPLR article 63, we need not pass upon the issue of whether attorney’s fees were available under CPLR 6315.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Collum Signs, Inc., Appellant, v Martin Lang, as Supervisor of the Town of Southampton, et al., Respondents.
    Argued May 5, 1983;
    reargument ordered June 14, 1983
   Reargument ordered and case set down for argument on September 19, 1983.


text:
    In the Matter of Suffolk Outdoor Advertising Co., Inc., Appellant, v Town of Southampton et al., Respondents.
    Argued May 5, 1983;
    reargument ordered June 14, 1983
   Reargument ordered and case set down for argument on September 19, 1983.


text:
    Luz M. Rodriguez, Individually and as Mother and Natural Guardian of Alberto Miranda, an Infant, Respondent, v George P. Baker et al., as Trustees of the Penn Central Transportation Company, Defendants; City of New York, Respondent, and Poirer & McLane Corporation, and Raymond DiMenna Corporation, a Joint Venture, Appellants.
    Submitted June 6, 1983;
    decided June 14, 1983
   Motion to dismiss the appeal denied. Motion for a stay denied as unnecessary (see CPLR 5519, subd [b]).


text:
    John B. Salch, Appellant, v Louis Paratore et al., Respondents.
    Submitted May 31, 1983;
    decided June 14, 1983
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [ii]).


text:
    Louis Heimbach, Individually and as County Executive of Orange County, et al., Appellants, v State of New York et al., Respondents. Warren M. Anderson, as Temporary President and Majority Leader of the New York State Senate, Intervenor-Respondent.
    Argued June 6, 1983;
    decided June 16, 1983

      APPEARANCES OF COUNSEL

      James G. Sweeney, County Attorney, for appellants.

      Robert Abrams, Attorney-General (Richard G. Liskov, Peter H. Schiff and Daniel Kaplan of counsel), for respondents.

      William Y. Crowell, III, and John F, Haggerty for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs commenced this action seeking a declaratory judgment that (1) “the roll call vote taken upon proposition designated as A9050 * * * was not correctly registered by the Clerk of the Senate”; and (2) that chapter 485 of the Laws of 1981 (Tax Law, § 1109) is violative of the equal protection clause of the Fourteenth Amendment.

Section 40 of the Legislative Law provides that the presiding officer’s certificate showing the date and requisite votes for passage of a bill shall be “conclusive evidence” that the bill was validly enacted. The statute, therefore, precludes judicial review of the propriety of the subject roll call vote to effect legislative action. In any event, based upon our respect for the basic polity of separation of powers and the proper exercise of judicial restraint, we will not intrude into the wholly internal affairs of the Legislature. (See Matter of Board of Educ. v City of New York, 41 NY2d 535, 538; Matter of Anderson v Krupsak, 40 NY2d 397, 403.) “ ‘[I]t is not the province of the courts to direct the legislature how to do its work’.” (New York Public Interest Research Group v Steingut, 40 NY2d 250, 257.)

Plaintiffs contend in the alternative that if the subject taxing statute were validly enacted, it is nonetheless violative of the equal protection clause of the Fourteenth Amendment because it has a disparate effect on certain regions of the Metropolitan Commuter Transportation District. While it may be true that the statute has resulted in some such disparate treatment, it is undisputed that the residents of Suffolk and Orange Counties use MTA services which are available in those counties and which are subsidized, either directly or indirectly, by revenues generated by the subject tax. As such, the statute has a rational basis and must be upheld. Even a “flagrant unevenness” in application of the tax will not prevent the statute from passing constitutional muster. (Matter of Long Is. Light. Co. v State Tax Comm., 45 NY2d 529, 535.)

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

Order affirmed, with costs, in a memorandum.


text:
    James L. Williams et al., Plaintiffs, v Hertz Corporation, Third-Party Plaintiff-Respondent, et al., Defendant. New Britain Herald Publishing Company, Inc., Third-Party Defendant. Walter J. Boyles, Respondent, v Kenneth Heller, Appellant.
    Decided June 16, 1983

      APPEARANCES OF COUNSEL

      Kenneth Heller, appellant pro se.

      Philip Hoffer for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as it dismissed the claim of Kenneth Heller against the Hertz Corporation, should be affirmed, with costs.

We believe the Appellate Division properly dismissed the claim to assert a lien against the judgment debtor Hertz, but solely upon the ground that the claim made against Hertz is premature because the amount of the attorney’s lien, if any, has not yet been established in this summary proceeding brought pursuant to section 475 of the Judiciary Law (1 Carmody-Wait 2d, NY Prac, § 3:150, p 477). Any defense to enforcement of a lien against Hertz may be asserted in a plenary action after the amount of the lien has been fixed. We reach no other questions.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order, insofar as it dismissed the claim of Kenneth Heller against the Hertz Corporation, affirmed, with costs, in a memorandum.


text:
    Mark Fleming et al., Appellants, v Long Island Railroad, Respondent.
    Argued June 1, 1983;
    decided June 16, 1983

      APPEARANCES OF COUNSEL

      James L. Fischer, Thomas W. Hyland and John W. Manning for appellants.

      Mitchell Kaufman and Seymour H. Metnick for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative (Andersen v Long Is. R. R., 59 NY2d 657). We add only that because the demand provided for in subdivision 1 of section 1276 of the Public Authorities Law is a condition to consent of the State and the passage of 30 days since the demand is required to be alleged in the complaint, the lack of such a demand is not r. matter required by CPLR 3018 (subd [b]) to be pleaded a, an affirmative defense.

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


text:
    In the Matter of Consolidated Freightways Corporation of Delaware, Appellant, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Respondents.
    Decided June 16, 1983

      APPEARANCES OF COUNSEL

      E. Parker Brown, II, for appellant.

      Robert Abrams, Attorney-General {Diane DeFurio Foody of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, for the reasons stated in the opinion by Justice Leonard A. Weiss at the Appellate Division (89 AD2d 270).

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


text:
    Joan Ferro, Respondent, v David Bersani, Appellant.
    Decided June 16, 1983

      APPEARANCES OF COUNSEL

      Alan S. Hoffman for appellant.

      Frank S. Kedzielawa for respondent.
   OPINION OF THE COURT

Memorandum.

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

There is an affirmed finding that respondent furnished support for the child, thus tolling the two-year limitation period established by the Family Court Act (§ 517, subd [a]; see Matter of Vicki B. v David H., 57 NY2d 427). There is also a basis in the record for that finding. The limitations issue is, therefore, beyond our review (Laufer v Ostrow, 55 NY2d 305, 311-312).

On the merits, we agree with the Appellate Division that paternity was established by clear and convincing evidence. The more particularly is this so because the Appellate Division’s reference to respondent’s failure to testify shows that it was free to and did draw “the strongest inference against [respondent] that the opposing evidence in the record permits” (Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of Ronald W. Reale, Appellant, v Patrolmen's Benevolent Association of the New York City Transit Police Department et al., Respondents.
    Submitted June 3, 1983;
    decided June 16, 1983

      APPEARANCES OF COUNSEL

      Joseph Frost and Gary L. Berenholtz for appellant.

      Eugene N. Axelrod for respondents.
   OPINION OF THE COURT

Order reversed, without costs, and matter remitted to Supreme Court, New York County, for entry of a judgment dismissing the petition on the ground of mootness.

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


text:
    In the Matter of Salvatore J. Fiato et al., Appellants, v Town of Guilderland et al., Respondents.
    Decided June 16, 1983

      APPEARANCES OF COUNSEL

      Robert G. Wakeman for appellants.

      William J. Sheehan for Town of Guilderland, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 799).

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


text:
    Jon Innis, Respondent, v City of New York, Appellant, et al., Defendants. (And a Third-Party Action.)
    Decided June 16, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Michael S. Adler of counsel), for appellant.

      J. Irwin Shapiro for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. The findings implicit in the jury verdict, as affirmed by the Appellate Division, are supported by evidence in the record.

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


author: Wachtler, J.

text:
    In the Matter of Charles W. Best et al., Doing Business as Keg and Cheese Shoppe, Respondents, v New York State Liquor Authority, Appellant.
    Argued April 29, 1983;
    decided June 16, 1983

      APPEARANCES OF COUNSEL

      Stephen D. Kolinsky and Stanley Stein for appellant.

      Charles J. Carreras for respondents.
   OPINION OF THE COURT

Judgment reversed, with costs, and the determination of the State Liquor Authority reinstated for the reasons stated in the dissenting memorandum of Justice Leon D. Lazer at the Appellate Division (89 AD2d 893-894).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Meyer and Simons. Judge Wachtler dissents and votes to affirm in an opinion.

Wachtler, J.

(dissenting). If this case represents the bureaucratic enterprise of the State Liquor Authority, Alice would feel very much at home with that agency.

In 1978 Charles and Roger Best opened a grocery store, with a license to sell beer for off-premises consumption in Howard Beach, Queens, New York. Their application for the off-premises license stated that they would operate a “full service delicatessen”.

All went well until November of 1980 when two State Liquor Authority inspectors paid an unexpected visit and noticed that the stock of the store consisted mainly of beer, soda, pretzels, potato chips, juices, cheeses and crackers. There were no dairy products and “only one canned ham”.

Roger Best told the inspectors that he had discontinued some of the food products because they did not sell. When he was told that he was in violation of the law and that his store had ceased to be a “grocery store” as defined by the rules of the State Liquor Authority, Best agreed to take the necessary steps to correct the situation.

After the inspectors’ visit, Best removed a large display of beer, added shelving for food goods, brought in a new line of canned goods, soups and juices and purchased a $3,000 refrigerator in order to offer additional cheeses and other foods. He expressed his willingness to stock whatever the State Liquor Authority required.

But that was not good enough. The State Liquor Authority voted unanimously to sustain the charge that the “premises had ceased to be operated as a bona fide premises within the contemplation of the license issued for such premises” and not only imposed a bond forfeiture of $1,000 but also canceled the off-premises license.

The Appellate Division reversed the State Liquor Authority’s determination holding that the “[food] selection may have been limited on the day of inspection * * * a follow-up visit was necessary to establish that [the] stock on the date of the inspection was typical.” I believe the Appellate Division’s determination was correct. Conversely, I think the determination of the State Liquor Authority was unwarranted, unjust and not supported by substantial evidence.

Subdivision 4 of section 54 of the Alcoholic Beverage Control Law states that no license to sell beer for consumption off premises may be issued to any person for premises other than a “grocery store”. Subdivision 13 of section 3 defines “grocery store” to mean “any retail establishment where food-stuffs are regularly and customarily sold in a bona fide manner for the consumption off the premises”.

Absent from the Alcoholic Beverage Control Law or the rules and regulations of the State Liquor Authority are any guidelines as to what constitutes “food-stuffs” or the type, quantity or percentage of foodstuffs required.

Despite this and despite the fact that no warning or any prior notification of the possibility of the alleged violation was given, the State Liquor Authority held that “grocery” means like in Alice’s wonderland, what it chooses “it to mean — neither more nor less”. And without a second or subsequent inspection, or an acknowledgement of the immediate action which the licensee was willing to undertake in this unclear situation, the harshest of penalties was exacted by the authority.

Although the State Liquor Authority is bound to enforce the law that is not an end in itself. Its broader purpose is to see that the law is respected, not because it is harsh or tyrannical, but because it is fair and just.

The order of the Appellate Di vision should be affirmed.

Judgment reversed, etc.


text:
    Sylvia Botwinick et al., Respondents, v Herbert S. Ogden et al., Appellants, et al., Defendants.
    Argued May 4, 1983;
    decided June 16, 1983

      APPEARANCES OF COUNSEL

      Marshal S. Endick and Stuart E. Kahan for appellants.

      Emilio Nunez, Harry H. Lipsig and Pamela Anagnos Liapakis for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court with direction to defer disposition of appellants’ motion to dismiss the complaint until final resolution of a prompt application to determine the rights if any of respondents to benefits under the provisions of the Workers’ Compensation Law.

In O’Rourke v Long (41 NY2d 219) we held that primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and that it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board. Application of the principles enunciated in O’Rourke to the present case requires that disposition of the motion of Conde Nast Publications and Dr. Ogden to dismiss the complaint herein be held in abeyance pending determination by the Workers’ Compensation Board as to the applicability of the Workers’ Compensation Law to the claims asserted by respondents. By like token we now refrain from expression of any views with respect to the merits of the motion to dismiss.

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

Order reversed, without costs, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein. Question certified answered in the negative.

       We observe that our decisions in Garcia v Iserson (33 NY2d 421) and Golini v Nachtigall (38 NY2d 745) antedated our decision in O’Rourke and were made without reference to the procedural rule of primary jurisdiction announced in O’Rourke.


text:
    In the Matter of Decato Brothers, Inc., Appellant, v State Tax Commission, Respondent.
    Decided June 16, 1983

      APPEARANCES OF COUNSEL

      John L. Allen for appellant.

      Robert Abrams, Attorney-General (.Diane DeFurio Foody of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (90 AD2d 386).

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


text:
    Edward J. Quinn et al., Appellants, v Nadler Bros., Inc., Defendant, and City of Amsterdam, Respondent.
    Decided June 16, 1983

      APPEARANCES OF COUNSEL

      Richard A. Insogna for appellants.

      Myron Komar for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. The City of Amsterdam has no special duty to its fire fighters for its failure to enforce city ordinances designed to protect the general public from health, safety and fire hazards (see O’Connor v City of New York, 58 NY2d 184; Sanchez v Village of Liberty, 42 NY2d 878; Motyka v City of Amsterdam, 15 NY2d 134).

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


text:
    New York Hearing Aid Society, Inc., et al., Appellants, v Children's Hospital and Rehabilitation Center of Utica, Respondent.
    Submitted May 31, 1983;
    decided June 16, 1983
   Motion for leave to appeal dismissed for failure to demonstrate timeliness of the motion as required by rule 500.9 (a) (1) of the Rules of the Court of Appeals (22 NYCRR 500.9 [c] [1]) (see Manolakos v Manolakos, 56 NY2d 591).


text:
    In the Matter of Martin Fitzpatrick, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Argued June 7, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

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

      Robert Abrams, Attorney-General (Nancy A. Spiegel and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (90 AD2d 974).

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


text:
    Air Transport Association of America, Respondent, v New York State Department of Taxation and Finance et al., Appellants.
    Argued June 6, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter H. Schiff of counsel), for appellants.

      Andrew C. Hartzell, Jr., Philip S. Winterer and Steven Klugman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice T. Paul Kane at the Appellate Division (91 AD2d 169).

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


text:
    Morris Atkin et al., Respondents, v Union Processing Corporation, Appellant, et al., Defendants. (And Another Action.)
    Argued May 31, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

      William D. Eggers, Domenick L. Gabrielli and Frank H. Penski for appellant.

      James M. Hartman and Paul J. Yesawich, III, 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 Justice Reid S. Moule (90 AD2d 332). Additionally we observe that there is no evidentiary support in the record for any finding that the scrap metals/raw materials market (as distinguished from the shredded scrap/products market) was limited to the Rochester area to which the agreement of the parties related.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Miguel Angel Colon, Also Known as Rafael Cordero, Appellant.
    Argued June 2, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

      Marilyn A. Kneeland and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Susan Corkery and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and order of the Criminal Court of the City of New York, New York County, reinstated for the reasons stated in the opinion of Judge Jeffrey Atlas at the Criminal Court (110 Misc 2d 917; People v Williams, 56 NY2d 824; People v Sturgis, 38 NY2d 625).

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


text:
    The People of the State of New York, Respondent, v Zafarin Hutchinson, Appellant.

      Argued June 3, 1983;
    decided June 28, 1983
    APPEARANCES OF COUNSEL

      Valerie Hriciga and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, appellant’s conviction vacated, his statements suppressed, and the case remitted to Supreme Court for further proceedings.

At the pretrial hearing appellant explicitly grounded his motion to suppress statements made by him to Police Officer Silva at his residence and later at the transit police district office, inter alia, on the failure of the officer giving appellant his constitutional preinterrogation warning to have included advice that appellant was entitled to the assistance of counsel during his questioning by the officer, an aspect of the warnings to which appellant concededly was entitled. Although the suppression court denied the motion to suppress based on a determination that the warnings given were legally sufficient, examination of the transcript of the hearing discloses the absence of any proof that the component of the warnings specifically identified by appellant had been given. Accordingly, it was error to have denied the motion to suppress the statements made.

With respect to appellant’s request that his plea of guilty to a violation of probation, which he asserts was predicated on the robbery conviction we are now vacating, also be vacated, we note that this question is not before us on appeal from the Appellate Division’s order affirming the judgment of conviction. Accordingly, our failure to grant the relief requested should be accorded no significance in any proceedings appellant may hereafter pursue concerning the violation of probation.

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

Order reversed, conviction vacated, defendant’s statements suppressed and case remitted to Supreme Court, Bronx County, for further proceedings on the indictment in a memorandum.


text:
    In the Matter of the Bank of New York, as Trustee under a Trust Created by Aimee C. Gouraud, Respondent. Ronald S. Lockhart, as Surviving Executor of Walter M. Russell, Also Known as Gerald Russell, Deceased, et al., Respondents; Edward R. Crocker et al., Appellants.
    Submitted June 6, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

      Stephen Lochner and Richard J. Duffy for appellants.

      Ronald S. Lockhart, respondent pro se.

   OPINION OF THE COURT

Order appealed from and order of the Appellate Division brought up for review affirmed, with costs payable out of the estate to all parties appearing separately and filing separate briefs, for reasons stated in the opinion by Justice J. Robert Lynch at the Appellate Division (85 AD2d 342).

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


text:
    Samuel Yankelevitz, Appellant, v Royal Globe Insurance Company et al., Respondents.
    Argued June 2, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

      Howard I. Rhine, Darryl J. Kramer and Lowry Wyman for appellant.

      Joseph D. Ahearn, Michael Majewski and Salvatore A. Mazzoni for respondents.

      Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

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

We perceive no constitutional infirmity in the provision of subdivision 3 of section 167 of the Insurance Law, which operates to exclude coverage for liability of the insured for personal injury or property damage claims by the insured’s spouse where the culpable conduct of the insured is in issue, unless the policy expressly declares such coverage. Plaintiff’s contention that the Legislature’s failure to require that the insurance policy expressly give notice to the insured of this exclusion denies him due process is without merit. The insured has ample notice of the terms of the exclusion by virtue of the statutory provision itself, which is deemed included as a policy provision (Employers’ Liab. Assur. Corp. v Aresty, 11 AD2d 331, 334, affd on opn below 11 NY2d 696; New Amsterdam Cas. Co. v Stecker, 1 AD2d 629, affd 3 NY2d 1). Moreover, the determination of the Legislature to apply this exclusion only to spouses is not violative of equal protection. The provision is designed to discourage collusive insurance claims between spouses involved in automobile accidents. A rational basis clearly exists to justify whatever classification may be created by the statute.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Edward Gibbs, Appellant.
    Argued June 3, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

      David T. Wasserman and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Andrew J. Frackman and John Latella of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, upon his trial for criminal sale of a controlled substance, relied solely upon the defense of agency. The prosecutor, in an apparent effort to refute the defense, repeatedly attempted to question an arresting officer concerning defendant’s possession of “buy money” when he was arrested. Defense counsel’s immediate objections to these efforts to elicit such testimony were, in each instance, sustained. The only testimony on the matter reaching the jury was to the effect that money had been given to the witness, the witness vouchered the money, and a list of “buy money” had been prepared. Notwithstanding the limited nature of the testimony actually elicited, defendant urges that he was deprived of a fair trial by the prosecutor’s persistent questioning on the point, which, it is contended, left the jury with the impression that defendant had kept some of the money given him by the undercover officers to purchase drugs, thus undercutting his agency defense.

Although persistent and improper questioning of this nature is to be discouraged and may,. in a given case, constitute such error as to warrant reversal of a defendant’s conviction, we are not persuaded that this defendant was prejudiced by the prosecutor’s conduct. Critical to our determination is the fact that the jury was never informed that the money referred to by the prosecutor had been recovered from defendant. The prosecutor’s inability to lay a foundation for testimony regarding the list of “buy money” apparently rendered academic the question of where the money had come from, and the prosecutor did not pursue the matter any further. Thus, we conclude that the questioning on this matter, although potentially prejudicial, cannot be deemed to have had the impact on the jury which defendant urges, inasmuch as the jury had insufficient information to reach the conclusion defendant claims undercut his agency defense.

Moreover, and equally important to this determination, the court took care to instruct the jury that it should disregard all testimony regarding the list, because the witness had insufficient knowledge to give testimony on the matter. We have recently recognized the utility of curative instructions for preventing the jury from drawing unwarranted inferences (People v Berg, 59 NY2d 294, pp 299-300). The instruction given in the present case was adequate to remove any doubt that the prosecutor’s inappropriate questioning would have an unfair impact upon the jury.

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

Order affirmed in a memorandum.


text:
    State of New York Higher Education Services Corporation, Appellant, v Alan M. Zamore, Respondent.
    Argued June 3, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {Martin A. Hotvet and Peter H. Schiff of counsel), for appellant.

      Jeffrey E. Stockholm and Anne E. Bryant for respondent.
   OPINION OF THE COURT

Memorandum.

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

The loan contract having been made by defendant in New York while a resident of New York, jurisdiction over him was obtainable by service outside the State and plaintiff had knowledge of his address well before the Statute of Limitations ran. Although the Congress has seen fit to limit the right of a student borrower to a discharge in bankruptcy (US Code, tit 11, § 523, subd [a], par [8]; see State of New York v Wilkes, 41 NY2d 655), neither the Congress nor our State Legislature has excluded student loan contracts from the ambit of the six-year period of limitations applicable to contracts (CPLR 213).

The contract provision requiring that defendant report annually to the lending institution to renew or extend his obligation does not help plaintiff because it too was breached more than six years ago. Furthermore, there being neither an act of defendant misleading plaintiff nor reliance by plaintiff, the provision of section 17-103 (subd 4, par b [recognizing estoppel to plead limitations]) of the General Obligations Law does not help plaintiff.

Finally, the suggestion that the total number (168,892) and amount ($343,135,032) of defaulted student loans is a reason for treating such loans differently than other contracts is more properly addressed to the Legislature.

Meyer, J.

(concurring). I concur and note that it is within the power of the Legislature to revive the claim even though it is now barred by limitations (Gallewski v Hentz & Co., 301 NY 164; Robinson v Robins Dry Dock & Repair Co., 238 NY 271, app dsmd 271 US 649; Electrical Workers v Robbins & Myers, 429 US 229; Chase Securities Corp. v Donaldson, 325 US 304).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur; Judge Meyer also concurs in a concurring memorandum in which Judge Jasen also concurs.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Mayflower Nursing Home, Appellant, v Office of Health Systems Management of the Department of Health of the State of New York et al., Respondents.
    Argued June 8, 1983;
    decided June 28, 1983

      APPEARANCES OF COUNSEL

      Robert Z. Dobrish, Jack S. Hoffinger, David B. Bernfeld and Robert A. Goldschlag for appellant.

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

Memorandum.

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

We agree with the Appellate Division that there is substantial evidence in the record to support the commissioner’s determination that petitioner’s lease was a non-arm’s length arrangement within the meaning of former section 86.28 of the departmental regulations (former 10 NYCRR 86.28) and that those regulations rather than the instructions on the HE-2 form establish the standard by which nonarm’s length arrangements are to be determined. At issue in this proceeding is not whether petitioner intentionally misled the department but whether the department was entitled to adjust the rates earlier determined on the basis that the lease arrangement was arm’s length after the error in that characterization was discovered. Moreover, because the department’s reimbursement determination adjusted for the error, and did not result from a mere error of judgment on the part of the department, it involved no violation of former section 86.16 of the regulations (former 10 NYCRR 86.16) (Matter of Demisay v Axelrod, 87 AD2d 667, mot for lv to app den 57 NY2d 602; Matter of University of Rochester Strong Mem. Hosp. v Whalen, 61 AD2d 867, mot for lv to app den 44 NY2d 646).

Nor has any due process right of petitioner been violated. It has been afforded the hearing required pursuant to Matter of White Plains Nursing Home v Whalen (42 NY2d 838, cert den 434 US 1066). The hearing was, moreover, one held upon demand of petitioner to review the department’s reimbursement determination, as the Supreme Court order of April 24, 1978 and the department’s notice of hearing dated October 30, 1978 clearly show, and the burden of proof was, therefore, upon petitioner (State Administrative Procedure Act, § 306, subd 1). Indeed, petitioner’s counsel so recognized, for the issue as he phrased it to the hearing officer was “who has the burden of going forward,” and he then presented a documentary case and rested subject to introducing rebuttal after the department’s evidence had been presented.

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

Judgment affirmed, with costs, in a memorandum.