text:
    Leonard C. Saff, Respondent, v Clara M. Saff, Appellant.
    Argued February 6, 1979;
    decided March 20, 1979
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v William Minarich, Also Known as Billy Minarich, and Christopher Lee Minarich, Appellants.
    Argued February 8, 1979;
    decided March 22, 1979

      APPEARANCES OF COUNSEL

      Anna M. Perry and Henry F. Middlemiss, Jr., for appellants.

      Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be reversed, and the cases remitted for a new trial.

The Appellate Division correctly held, and indeed the People concede, that James Longtin was an accomplice as a matter of law (CPL 60.22, subd 2; see People v Beaudet, 32 NY2d 371). The trial court was therefore required to instruct the jury that Longtin was an accomplice, and that defendants could not be convicted on Longtin’s testimony absent corroborative evidence (CPL 60.22, subd 1). "Failure to so charge the jury was necessarily harmful error” (People v Jenner, 29 NY2d 695, 696-697).

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

Orders reversed, etc.


text:
    Michael Fiore, Appellant, v Ferdinand Fiore et al., Individually and as Trustees Under the Will of Michael Fiore, Deceased, Respondents.
    Argued February 12, 1979;
    decided March 22, 1979

      APPEARANCES OF COUNSEL

      Steven P. Howard for appellant.

      Joseph R. Miller for respondents.
   OPINION OF THE COURT

Memorandum.

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

The plaintiff notes that the stated purpose of the 1953 agreement is "to keep the ownership of the stock of the Corporation in themselves [i.e., the individual parties] and their surviving spouses and sons so far as is possible and circumstances will permit” and that in certain instances this purpose would be frustrated if the sons are not bound by its terms. The question, however, is not whether the agreement is imperfect but whether it is ambiguous. The courts may not rewrite a term of a contract by "interpretation” when it is clear and unambiguous on its face.

The phrase "individual parties” is not ambiguous as the plaintiff contends. The preamble identifies four parties to the agreement — the three Fiore brothers and "Fiore Brothers, Inc. * * * hereinafter termed the 'Corporation’ ”. Thereafter the agreement distinguished between the "Corporation” and the "individual parties”. Logically the phrase "individual parties” could only refer to the three Fiore brothers who together with the "Corporation” were the four parties to the agreement.

. Indeed the agreement leaves no room for doubt because it specifically identifies the "individual parties” as "the sole owners of all of the shares of the capital stock of Fiore Brothers, Inc., aforesaid, amounting in all to one hundred and fifty (150) shares” and then itemizes the shares held by the three brothers individually which together total 150 shares. There is then no merit to the plaintiff’s contention that the phrase "individual parties” is ambiguous and could apply not only to the signatories of the agreement, but also to their sons.

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

Order affirmed.


text:
    Claire Topper, Appellant, v Mutual Life Insurance Company of New York, Respondent.
    Argued February 13, 1979;
    decided March 22, 1979

      APPEARANCES OF COUNSEL

      jBradley B. Davis for appellant.

      Michael L. B. Kaplan, Samuel C. Cantor, David G. O’Brien and Patrick W. Guy for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (62 AD2d 932). In addition, the record does not support the contention that respondent made misleading representations to appellant regarding her entitlement to receive benefits under the salary continuation plan.

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


text:
    The People of the State of New York, Respondent, v Patrick CC, Appellant.
    Argued February 8,1979;
    decided March 22, 1979

      APPEARANCES OF COUNSEL

      Claude Castro for appellant.

      Karen F. McGee, Special District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

There were no specific findings by the courts below as to whether the defendant was in custody at the time he made the statement implicating himself in the crime. Under such circumstances, in an appropriate case, we could either imply the findings from the determination itself or remand for findings of fact and conclusions of law (cf. People v Alfinito, 16 NY2d 181, 186; People v Brady, 16 NY2d 186, 189). However, we are not called upon to do so here. For, even if the defendant were assumed to have been in custody, we are faced with affirmed factual findings that the defendant did receive the warnings prescribed for persons subjected to custodial interrogation (Miranda v Arizona (384 US 436). Since the record yields support for this finding as well as for ones that the waiver of his privilege against self incrimination was knowing and voluntary, these are beyond our power of review.

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

Order affirmed in a memorandum.


text:
    Daniel Cowin, Appellant, v Stephen M. Ross et al., Respondents.
    Argued February 12, 1979;
    decided March 22,1979

      APPEARANCES OF COUNSEL

      Arthur D. Emil and Steven L. Cohen for appellant.

      Lawrence Vogel and Sidney J. Schwartz for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (64 AD2d 552), noting also that the record clearly establishes that the partnership was formed to develop one project on a single parcel.

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


text:
    In the Matter of Cortlandt Nursing Care Center, Respondent, v Robert P. Whalen, as Commissioner of Health of the State of New York, et al., Appellants.
    Argued February 5,1979;
    decided March 22,1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (W. Alexander Melbardis, Samuel A. Hirshowitz, Philip Weinberg and Richard G. Berger of counsel), for appellants.

      Stanley H. Lowell and Richard L. Brenner for respondent.
   OPINION OF THE COURT

Memorandum.

In this CPLR article 78 proceeding, respondent Cortlandt Nursing Care Center challenges the validity of Medicaid reimbursement rate ceilings established by appellant State Commissioner of Health for respondent’s medical facility.

Pursuant to the Public Health Law (§ 2807, subd 3), the commissioner is empowered to establish reimbursement rates "reasonably related to the costs of providing” health-related services. To effectuate this legislative directive, the commissioner promulgated regulations for the computation of rate ceilings (see 10 NYCRR Part 86), one of which grouped medical facilities for this purpose by, among other criteria, the type of facility and its size (10 NYCRR 86.13, as amd by 10 NYCRR 86-2.11). Applying this regulation, the commissioner, rather than placing respondent’s 120 bed facility, which is comprised of a 40 bed Skilled Nursing Facility (SNF) and an 80 bed Health Related Facility (HRF), in the 100-199 bed classification as provided in the rate ceiling regulation, subdivided respondent’s facility, placing the SNF and HRF in separate 51-99 bed classifications. (In so doing, the commissioner placed the 40 bed SNF in a larger size classification than a literal subdivision of the facility would have required.)

Respondent successfully contended in the courts below that appellant should have computed respondent’s Medicaid reimbursement rate ceilings by treating its facility as a single 120 bed entity, thereby reflecting more accurately its total operational costs. We have previously indicated, however, that the commissioner’s interpretation of a regulation is "controlling and will not be disturbed in the absence of weighty reasons.” (Matter of Sigety v Ingraham, 29 NY2d 110, 114.) Unless the commissioner’s determination is arbitrary and capricious, it must be sustained. (Severino v Ingraham, 44 NY2d 763, 764.)

Applying these principles to the instant case, we conclude that the determination of the commissioner to subdivide respondent’s facility for computation of Medicaid reimbursement rate ceilings was not arbitrary and capricious. In view of the mixed services provided at respondent’s facility, no classification, whatever its form, would have been perfect. Subdivision of this facility, claims respondent, failed to take into consideration the greater operational costs of a 120 bed facility as opposed to two smaller facilities of 40 and 80 beds. In other words, respondent contends that the sum of the parts is greater than the whole. While this may be true, respondent’s argument ignores the equal inaccuracy entailed in treating respondent’s facility as a single entity. To do so would require that rate ceilings be computed as if respondent operated a 120 bed SNF (HRF rate ceilings are computed on the basis of 60% of SNF rate ceilings). Surely this method of computation would exaggerate respondent’s operational costs just as respondent claims the commissioner’s method of computation underestimated such costs.

Faced with these alternatives, the commissioner opted to subdivide respondent’s facility for computation of rate ceilings. Cognizant of the possibility of underestimation of operational costs which subdivision might entail, the commissioner placed respondent’s SNF in the 51-99 bed classification, rather than the 1-50 bed classification, notwithstanding the existence of only 40 SNF beds in respondent’s facility. Under these circumstances, we cannot say that the commissioner’s determination was arbitrary and capricious. It must, therefore, be sustained.

Accordingly, the order of the Appellate Division should be reversed, with costs, the determination of the State Commissioner of Health reinstated, and the petition dismissed.

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

Order reversed, etc.

      . (L 1968, ch 862, as amd.)

      . These regulations have since been amended and are now contained in 10 NYCRR Subpart 86-2.


text:
    Designcraft Jewel Industries, Inc., et al., Plaintiffs, v Rampart Brokerage Corp., Defendant and Third-Party Plaintiff-Appellant. Frank Feit & Co., Inc., et al., Third-Party Defendants-Respondents.
    Argued February 8,1979;
    decided March 22,1979

      APPEARANCES OF COUNSEL

      Jeffrey Silberfeld and Lawrence W. Hermer for third-party plaintiff-appellant.

      Norman H. Dachs and Beth J. Goldmacher for Frank Feit & Co., Inc., third-party defendant-respondent.

      John J. Wrenn for Midland Insurance Company, third-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (63 AD2d 926).

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


text:
    In the Matter of Isidore Schechter, Respondent, v New York State Employees’ Retirement System et al., Appellants.
    Argued February 15, 1979;
    decided March 22, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Jeremiah Jochnowitz of counsel), for appellants.

      Murray Rudman for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the opinion of Madam Justice Ann T. Mikoll at the Appellate Division (62 AD2d 543).

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


author: Jones, J.

text:
    In the Matter of MNORX, Inc., et al., Appellants. Phillip Ross, as Industrial Commissioner, Respondent.
    Argued February 5, 1979;
    decided March 22, 1979

      APPEARANCES OF COUNSEL

      Richard B. Thaler for appellants.

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

Memorandum.

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

On the record as a whole there exists substantial evidence to support the findings of the Unemployment Insurance Appeal Board. True, the evidence is in conflict: the contracts executed by the parties constitute proof of the existence of employment relationships, while the testimony of the witnesses indicates that no such relationships were contemplated. But the board was free to choose between these alternative factual versions (State Div. of Human Rights v Columbia Univ. in City of N. Y., 39 NY2d 612, 616; Matter of Stork Rest. v Boland, 282 NY 256, 267) and, since the evidence reasonably supports the board’s choice, we may not interpose our judgment to reach a contrary conclusion (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180). Indeed, the execution by appellants of the various contracts containing language evincing employment status, being inconsistent with their positions at the hearing, constituted admissions, not only for the purpose of discrediting their contentions but also as evidence of the facts admitted (see Richardson, Evidence [10th ed — Prince], §§ 209, 210; 4 Wigmore, Evidence [3d ed], § 1048, pp 5-6).

Jones, J.

(dissenting). I cannot concur in the determination reached by the majority that there is in this record substantial evidence to support the determination by the Unemployment Insurance Board that the musicians, payment to whom served as the basis for the disputed assessments, were employees of appellants. Recognizing, as I do, that an appellate court may upset a determination by the appeal board only if it may be said, as a matter of law, that a contrary determination is required by the record (Matter of Sierant [Catherwood— Gen. Mills], 24 NY2d 675', 679), examination of the record here convinces me that this is just such a case.

The evidence adduced at the hearing before the unemployment insurance referee, on which the board’s decision must be predicated, admits of only one conclusion — that no employment relationship existed between the establishments on which assessments have been imposed by the Industrial Commissioner and the individual musicians in question.

It is not disputed that the finding of an employer-employee relationship between appellants and the union musicians engaged by them under the American Federation of Musicians’ Form B contract was based solely on the provision in the contract that purports to vest in the owner of the facility "complete supervision, direction and control” over the services of the musicians so engaged. The uncontradicted proof however — from owners, musicians and a musicians’ booking agent alike — was that the right of such supervision was not in fact retained by the owners. On the contrary the testimony was that they exercised no control whatsoever over the details of the musicians’ performances, did not select the music to be performed, did not prescribe the dress of the performers, did not provide musical instruments, did not define the number or length of time-outs taken during a performance, did not determine or even know who the individual members of a musical group would be and likewise did not even determine the number of musicians who would be present at a performance. Additionally, no income taxes were withheld by the owners from moneys paid to the groups who performed under Form B contracts, no W-2 forms were issued, no worker’s compensation coverage was provided and no Social Security taxes were collected with respect to the musicians. In short, none of the indicia or characteristics of an employer-employee relationship existed.

Not only was the evidence uncontroverted that the owners did not in fact exercise or retain any form or control over union musicians who played on their premises under the union contracts; there was more. It is the additional proof in this case which in my analysis is determinative, for I recognize that a finding of employer-employee relationship may properly be predicated on a reserved right to control, even though there be no evidence that such right was in fact ever exercised by the "employer”. In this case there was also uncontroverted proof that the contract provision on which the board, and now the majority in our court, latches was a fiction —an intentional fabrication — known by the parties to be wholly false and designed solely for the purpose of artificially creating unemployment insurance coverage. The parties recognized that the substance of their actual relationship would not give the musicians the right to unemployment insurance, and the artificial provision was devised to confer benefits on the musicians to which they would not otherwise be entitled. The proof was overwhelming that while the parties intended to create unemployment insurance coverage, they never intended to confer any right of actual supervision on the owners. The practice of the parties confirmed what was testified to by owners, musicians and booking agent without exception — that none intended, expected or understood by the execution of the Form B contracts that an employer-employee relationship would actually exist, and that the contracts with the fictitious control-in-the-owner provision were used only because the union required that that be done, under penalty of blacklisting any owner who refused to do so.

The conclusion to which I am driven does not depend in any way on acceptance of the owners’ charge that they were in effect bludgeoned into inclusion of the fictional provision. Their charge in that regard — if it has merit — may be resolved in another forum and is not now properly before us. My analysis proceeds on the assumption that the provision in question was voluntarily included, and that the parties sought by such inclusion to confer unemployment insurance benefits on the musicians. Critical to the result I reach is the principle, conceded by counsel for the Industrial Commissioner on oral argument in our court, that parties to an occupational relationship cannot by agreement extend the scope of the Unemployment Insurance Law. It is undisputed that there are no provisions in article 18 of the Labor Law that authorize or contemplate optional coverage on the part of employers, or authorize the extension of benefits to ineligible persons by voluntary contributions of a self-styled "employer”. In effect, however, the parties to this litigation are being permitted to work an amendment of the Unemployment Insurance Law. That previous cases, in which the proof of calculated fabrication has not been similarly overwhelming and uncontradicted, have upheld coverage of musicians in like circumstances surely does not preclude denial of coverage where, as here, the invented fiction is laid starkly bare.

The hearing referee, whose findings and opinion were adopted by the appeal board, made no contrary finding as to actual control; he rejected the assertion that the contractual control provision was a fiction, not on the ground that it was not a fiction or that a true employer-employee relationship existed, but simply because it was desirable from the musicians’ point of view for purpose of protecting unemployment benefits that they be regarded as employees of the establishments at which they played. To the referee’s findings and opinion the appeal board added only its finding that the owners "had the right” to supervise and control the services of the musicians — an articulation which, in the face of the undisputed proof of lack both of actual control and of any intention to create a right of control, is insufficient to sustain the assessments that have been imposed (Matter of Savoy Ballroom Corp. [Lubin], 286 App Div 684). In reaching this conclusion I apply the rule restated in Matter of Basin St. (Lubin) (6 NY2d 276, 278) that "the identity of the employer must be ascertained on the facts of the individual case, and that no written agreement may preclude an examination into the actual relationship of the parties (Matter of Morton, 284 N. Y. 167, 175; Matter of Electrolux Corp., 288 N. Y. 440, 444).” In Basin St. we accepted at face value the control provision of the Form B contract, stressing that "neither the Commissioner nor the operator introduced any evidence of the extent to which either the band leader or the operator exercised supervision, direction and control over the musicians. The only evidence in the record is the 'Form B’ contract of the American Federation of Musicians, with 'Rider B’ attached. * * * As noted, there is no evidence in the record before us as to the actual practices of the parties and who, in fact, exercised supervision over the musicians. In the absence of evidence so indicating, we cannot assume that the contractual provision vesting complete control in the operator, as employer, was a fiction.” (6 NY2d 276, 278, 280.)

In the case now before us the deficiency noted in Basin St. has been supplied with uncontroverted proof that actual control neither rested in nor was exercised by the owners and that the triggering provision of the contract was a calculated fabrication. The only possible conclusion on the record before us is that the contractual provision was a fiction — and a fiction which if given effect will permit private parties by a contract to expand the scope and coverage of the Unemployment Insurance Law beyond that which the Legislature has seen fit to provide.

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

Order affirmed.


text:
    In the Matter of Aristile W. Hawley et al., Appellants-Respondents, v Mario M. Cuomo, as Secretary of State of the State of New York, Respondent-Appellant.
    Argued February 6, 1979;
    decided March 22, 1979

      APPEARANCES OF COUNSEL

      John T. De Graff, Jr., and Michael T. Wallender for appellants-respondents.

      Robert Abrams, Attorney-General (Judith T. Kramer of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The questioned two-county nonsolicitation order of the Secretary of State was purportedly promulgated pursuant to article 12-A of the Real Property Law and section 91 of the Executive Law (see Thompson v Lomenzo, 78 Misc 2d 298, 300, affd 48 AD2d 869). The proper standard of review in respect to an administrative regulation, legislative in charactér, is whether the action of the administrative board or officer "was affected by an error of. law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803, subd 3; Matter of Pell v Board of Educ., 34 NY2d 222, 230-231; Grossman v Baumgartner, 17 NY2d 345, 349; Matter of Triodo v Johnson, 65 Misc 2d 424, 427, affd 40 AD2d 953; 8 Weinstein-Korn-Miller, NY Civ Prac, par 7803.04 et seq.)

Tested under this standard the order does not pass muster. The evidence adduced by respondent falls far short of a showing that prohibited racial blockbusting tactics were prevalent throughout the two-county area encompassed by the order. Indeed, the proof does not even establish that such practices were imminent. Rather, it reveals only that homeowners in certain areas of the two counties were subjected to greater solicitation than they had been in the past. However, even in those two specified areas, there is no indication that the majority of those solicitations were purposely infected with racially based representations which placed undue pressure on those homeowners to list their houses for sale. Hence, the facts before respondent failed to establish any rational basis for promulgation of an order so broad in geographic scope and, therefore, the order was arbitrary and capricious.

Inasmuch as full relief has been granted petitioners in that aspect of the litigation relating to article 78 relief, there is no justiciable controversy upon which to render a declaration as to the constitutional validity, the authority for issuance and the necessity of a prior public hearing in relation to the nonsolicitation order (see Siegel, New York Practice, p 581). Accordingly, the order of the Appellate Division should be modified, without costs, by striking those portions of the judgment of the Supreme Court, Queens County, which effectuate the declaratory aspects of the litigation, to wit, the first decretal paragraph and items "1”, "2” and "3” of the second decretal paragraph and, as so modified, affirmed.

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

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of George E. Zeitlin, Respondent, v New York City Conciliation and Appeals Board et al., Respondents, and Jacob Haberman, Intervenor-Appellant.
    Argued February 6, 1979;
    decided March 22, 1979

      APPEARANCES OF COUNSEL

      Leon Liner, Robert F. Liner and Milton A. Chambers for intervenor-appellant.

      George Zeitlin, respondent pro se, and Sheila Birnbaum, John N. Romans and Leslie J. Schreyer for George Zeitlin, respondent.

      William E. Rosen and Ellis S. Franke for New York City Conciliation and Appeals Board, respondent.

      Gary M. Rosenberg and Robert S. Fougner for Rent Stabilization Association, respondent.
   OPINION OF THE COURT

Memorandum.

The determination appealed from should be affirmed, with costs assessed against appellant, the intervenor landlord. At issue on this appeal is the applicability of the Emergency Tenant Protection Act of 1974 (ETPA) (L 1974, ch 576, § 4) to an apartment otherwise subject to the Local Emergency Housing Rent Control Act (L 1962, ch 21), but which has been temporarily exempted from coverage under the pre-existing act. We conclude that such an apartment is not "subject to” the older act, and thus is subject to the ETPA.

Section 3 of the ETPA authorizes the governing body of an appropriate municipality to declare the existence of a state of emergency as to any class of housing accommodations which was, inter alia, "heretofore or hereafter decontrolled, exempt, not subject to control, or exempted from regulation and control under the provisions of the emergency housing rent control law, the local emergency housing rent control act or the New York city [sic] rent stabilization law”. Such housing accommodations may then be subject to rent controls. By means of its Resolution No. 276, dated June 4, 1974, the New York City Council determined that a state of emergency did exist within the city, and accordingly imposed controls on, inter alia, "all classes of housing accommodations within the City of New York including, but not limited to, housing accommodations heretofore destabilized, heretofore or hereafter decontrolled, exempt, not subject to control, or exempted from regulation and control under the provisions of the local Emergency Housing Rent Control Law or the City Rent Stabilization Law”.

The apartment involved in this case is a nine-room apartment which has been leased to the same tenant for the same uses since 1966. The tenant and his immediate family use seven rooms as their primary residence. The other two rooms are used by the tenant for professional purposes. In 1966, the intervenor landlord obtained an order from the City Rent Commission making the apartment "exempt from rent control * * * by reason of the renting for commercial or professional purposes so long as the tenant named herein occupies the housing accommodation”. The tenant now contends that since the apartment has been exempted from coverage under the prior legislation, it is subject to the ETPA. We agree. The language of both section 3 of the ETPA and the City Council resolution implementing that act in New York City are clear and unambiguous, including as they do any housing accommodations exempted from regulation under the prior provisions. This apartment is certainly a housing accommodation, for the use of two rooms of a nine-room residential apartment for professional purposes does not remove the apartment from the broad category of residential housing accommodations. Hence, since this apartment was exempted from regulation under the prior rent control provisions, it is subject to the ETPA.

The intervenor suggests that this result is contrary to the mandate of section 5 of the ETPA, which provides in pertinent part that "[a] declaration of emergency may be made pursuant to section three as to all or any class or classes of housing accommodations in a municipality, except: (1) housing accommodations subject to the emergency housing rent control law, or the local emergency housing rent control act”. The intervenor contends that the apartment in question is still subject to the prior laws, although exempted from them, and is thus not subject to the ETPA. The exception provided by section 5 of the ETPA, however, must be read in conjunction with section 3 of the ETPA. If interpreted as the landlord suggests, section 5 would make a nullity of large parts of section 3. We reject such an interpretation and conclude that the two sections taken together authorize the imposition of controls pursuant to a declaration of a local state of emergency with respect to all residential housing accommodations not currently regulated pursuant to the prior rent control provisions, in the absence of some other exclusion provided in the ETPA.

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

Determination affirmed, with costs, in a memorandum.


text:
    Ann H. Chenault, Appellant, v Miles S. Chenault, Respondent.
    Argued February 8, 1979;
    decided March 22, 1979
   Appeal dismissed, without costs, upon the ground that the modification at the Appellate Division is not in a respect which is within the power of the Court of Appeals to review (see Patron v Patron, 40 NY2d 582).


text:
    Arthur Florman, Appellant, v Marianne Marks, Respondent.
    Submitted February 14, 1979;
    decided March 22, 1979
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of the Estate of Julia Beilstein, Deceased. Curtis L. Andrews et al., Respondents; Frederic E. Mints, Appellant.
    Submitted February 5,1979;
    decided March 22,1979
   Motion for leave to appeal dismissed upon the ground that the motion is made on behalf of a party by a representative not admitted to the practice of law.


text:
    Board of Education of Patchogue-Medford Union Free School District, Town of Brookhaven, Appellant, v Patchogue-Medford Congress of Teachers, Respondent.
    Submitted February 26, 1979;
    decided March 22, 1979
   Motion for a stay pursuant to CPLR 5519 (subd [c]) denied as unnecessary in view of the automatic stay provisions of CPLR 5519 (subd [a], par 1).


text:
    Robert T. Logan, Respondent, v Williamson & Company, Appellant.
    Decided March 22,1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    Donald J. Lucenti, Appellant, v Cayuga Apartments, Inc., Respondent.
    Submitted February 20,1979;
    decided March 22,1979
   Motion to dismiss the appeal herein granted and plaintiff’s appeal, taken by notice of appeal dated January 20, 1979, dismissed and, on the court’s own motion, plaintiff’s "cross appeal”, taken by notice of cross appeal dated February 7, 1979, dismissed, each upon the ground that plaintiff is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]), with one bill of costs and $20 costs of motion.


text:
    In the Matter of Eugene T. Lowe, Appellant, v Albert D. Gray, Jr., as Commissioner of the Department of Correction of the County of Westchester, et al., Respondents.
    Submitted February 20, 1979;
    decided March 22,1979
   Motion to dismiss the appeal herein denied.


text:
    Niagara Falls Urban Renewal Agency, Appellant, v 123 Falls Realty, Inc., et al., Respondents.
    Submitted February 26, 1979;
    decided March 22, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    Ocean Rock Associates, Appellant, v Alfred Cruz et al., Respondents.
    Decided March 22, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies (NY Const, art VI, § 3, subd b, par [7]; CPLR 5601).


text:
    The People of the State of New York, Appellant, v Spencer Elliott, Respondent.
    Submitted February 26, 1979;
    decided March 22, 1979
    APPEARANCES OF COUNSEL

      William E. Hellerstein for motion.

      Robert M. Morgenthau, District Attorney (Meredith Ann Feinman of counsel), opposed.
   OPINION OF THE COURT

Motion to dismiss the appeal of the appellant People granted and the appeal dismissed for failure to comply with rule 500.7 (subd [a]).

NOTICE TO THE BAR

The New York State Court of Appeals announced today that its automatic nine-month dismissal of stale appeals rule will be applied to all criminal appeals, that is, those taken by the People as well as by defendants.

The rule (22 NYCRR 500.7 [a]) has been applied strictly on the civil side of the court’s calendar for about five years and now will be applied uniformly to all the court’s pending business without the necessity of a formal motion.

(See People v Elliott, motion to dismiss People’s appeal granted, decided today.)


text:
    Snap "N" Pops, Inc., Appellant, v Denis Dillon, as District Attorney of the County of Nassau, et al., Respondents.
    Submitted March 19, 1979;
    decided March 22, 1979
   Motion to dismiss the appeal herein denied.


text:
    Frank F. Arnold, Appellant, v District Council No. 9, International Brotherhood of Painters and Allied Trades, Defendant, and International Brotherhood of Painters and Allied Trades, AFL-CIO, Respondent. Daniel P. French et al., Intervenors.
    Argued February 14,1979;
    decided March 27,1979

      APPEARANCES OF COUNSEL

      James McGarry and Stephen Rauch for appellant.

      Stephen C. Vladeck, Robert A. Cantore and Lawrence M. Sapadin for respondents.

      Surowtiz & Ruskin, P. C., for intervenors.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, with costs, for the reasons stated by Mr. Justice Arnold G. Fraiman at Special Term, and judgment entered in favor of plaintiff declaring that Daniel French is subject to the automatic suspension for nonpayment of dues provisions of the union constitution despite his status as a life member of the union, pursuant to the provisions of the union constitution in effect when this action was commenced. We have been informed that during the pendency of this action seeking, inter alia, to set aside the January, 1977 election of a union business representative, a subsequent election has been held for the next term of that office, and that someone has been elected to that position. Hence, there would appear to be no point in setting aside the 1977 election, as was requested by plaintiff. However, since the dispute is one which is apt to recur, we decline the invitation to dismiss the action as moot, and have instead determined to resolve the merits as indicated above in the context of a declaratory judgment. Since the business representative in this instance was not "an officer” of the union within the contemplation of subdivision (n) of section 3 of the Labor-Management Reporting and Disclosure Act of 1959 (US Code, tit 29, § 402, subd [n]), the State courts are not denied jurisdiction as to either pre-election or postelection challenges (cf. US Code, tit 29, §§ 482, 483).

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

Order reversed, with costs, and judgment granted in favor of plaintiff in accordance with the memorandum herein.


text:
    Psychoanalytic Center, Inc., Appellant, v Robert A. Burns, Respondent.
    Argued February 14, 1979;
    decided March 27,1979
    APPEARANCES OF COUNSEL

      Herman Lieblich and Fredric R. Zarkin for appellant.

      Roger Brian Cowan for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellant Division should be reversed, with costs, and the judgment of Supreme Court confirming the arbitration award reinstated.

After determining that respondent, a psychotherapist, had breached his agreement with appellant psychotherapy treatment center not to treat any clients of the center in the event his association with the center was discontinued, the arbitrator made an award of damages. The amount of that award was computed on the basis of the allocation of the fees received for professional services while respondent had been associated with the center. We hold that such award did not direct the splitting of fees or otherwise offend any public policy reflected in regulation 72.2 (subd [a], pars [4], [5]) of the Commissioner of Education which proscribe fee splitting.

What are prohibited by the regulation are certain voluntary prospective arrangements for the division of professional income in circumstances where such a practice might threaten or impair the discharge of professional responsibility to clients. There is nothing of that here. In the arbitration, as would have been the case in a judicial proceeding, a computation of damages has been made. It is not invalidated because it was predicated on the parties’ own prior division of client revenue or the circumstance of the precise arithmetic parallel thereto.

We have considered the other contentions advanced by respondent for denial of the motion to confirm the award and find them to be without merit.

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

Order reversed, with costs, and the judgment of Supreme Court, New York County, reinstated in a memorandum.


text:
    In the Matter of Frances A. Maloney, Respondent, v Nassau County Civil Service Commission, Appellant.
    Argued February 9,1979;
    decided March 27,1979

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (Joshua A. Elkin of counsel), for appellant.

      Stephen Kressel and Benjamin Weinstock for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition dismissed for the reasons set forth in the dissenting memorandum of Mr. Justice M. Henry Martuscello at the Appellate Division. In addition we would note that the policy against using — for qualification or credit— experience attained in violation of the Civil Service Law is so strong that even if the test announcement had specifically stated that such experience would be acceptable, the commission would not have been justified in approving it (Matter of Camfield v Mealy, 288 NY 149).

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

Order reversed, with costs, and the petition dismissed in a memorandum.


author: Per Curiam.

text:
    In the Matter of the Civil Service Employees Association, Inc., Respondent-Appellant, v Harold Newman et al., Constituting the Public Employment Relations Board, et al., Appellants-Respondents, and James B. Northrop, as Acting Director of the Governor’s Office of Employee Relations of the State of New York, et al., Respondents.
    Argued March 20, 1979;
    decided March 27, 1979

      APPEARANCES OF COUNSEL

      James W. Roemer, Jr., Marjorie E. Karowe, Richard L. Burstein, Michael J. Smith and William M. Wallens for respondent-appellant.

      Martin L. Barr, Jerome Thier, Anthony Cagliostro and Richard A. Curreri for Public Employment Relations Board, appellant-respondent.

      James R. Sandner, Jeffrey S. Karp, David N. Stein and Susan Bloom Jones for Public Employees Federation, appellant-respondent.

      Robert Abrams, Attorney-General (Michael F. Colligan and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Per Curiam.

In this article 78 proceeding the Civil Service Employees Association (CSEA) challenges an order of the Public Employment Relations Board (PERB) which certified the Public Employees Federation (PEF) as the exclusive representative of State employees in the professional, scientific and technical services unit. With respect to most of the issues, the Appellate Division accepted PERB’s determination that the objections raised by CSEA lacked merit.. However a majority at the Appellate Division disapproved the method employed by the director of PERB for resolving and rejecting CSEA’s claim that the election, at which PEF was chosen as the employees representative, was tainted by forgery. Thus the Appellate Division annulled PERB’s determination and remitted for the limited purpose of conducting further proceedings on the forgery complaint. PERB and both unions have appealed from that determination.

The order of the Appellate Division should be modified and PERB’s determination reinstated for the reasons stated in the opinion of Presiding Justice A. Franklin Mahoney at the Appellate Division. In addition we would note that the method selected by the director of PERB was reasonably designed to detect the only type of forgery which was alleged to have occurred in this case and no alternative method was proposed until after the selection of the method employed and the results were known. Thus in our view there is no basis whatsoever for concluding that the director acted arbitrarily and capriciously in choosing this method for resolving the forgery claim.

The other issues, raised by CSEA on the cross appeal, were properly resolved by the Appellate Division, and to that extent, the order of the Appellate Division should be affirmed.

Accordingly, the order of the Appellate Division should be modified, with costs to PERB and PEF against CSEA, to the extent of reinstating the determination of PERB and, as so modified, affirmed.

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

Order modified, with costs to PEF and PERB against CSEA, in accordance with the opinion herein and, as so modified, affirmed.


text:
    In the Matter of Gioanna I. La Carrubba, Respondent, v John V. N. Klein, as County Executive of Suffolk County, et al., Appellants.
    Argued February 12,1979;
    decided March 27,1979

      APPEARANCES OF COUNSEL

      Howard E. Pachman, County Attorney (Aton J. Borovina of counsel), for appellants.

      James M. Catterson, Jr., and Richard T. Nolan for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs, for the reasons stated in the majority opinion of Mr. Justice J. Irwin Shapiro at the Appellate Division. We note for the record that the proposed constitutional amendment referred to in that opinion (59 AD2d 99, 103-104), having been agreed to by a second Legislature, was approved and ratified, effective as of April 1, 1978, by a majority of the State’s electors at a general election and has been in force since then (NY Const, art VI, §§ 22, 36-a; see, also, Judiciary Law, art 2-A).

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

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Carlos Gonzalez, Appellant.
    Argued February 15, 1979;
    decided March 27, 1979

      APPEARANCES OF COUNSEL

      William H. Roth, Robert S. Katz and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

All three preconditions to the application of CPL 60.25 (subd 2) having been met, the testimony of Officer Moroney confirming the pretrial identification of appellant by the witness Grant was properly admissible at trial (see People v Nival, 33 NY2d 391). Appellant apparently concedes both that the identifying witness "observed the person claimed by the people to be the defendant” at the crime scene (CPL 60.25, subd 1, par [a], cl [i]) and that he was "unable at [trial] to state, on the basis of present recollection, whether or not [appellant was] the person in question” (CPL 60.25, subd 1, par [a], cl [iii]): The record contains evidence that the third condition also was met. In the presence of Officer Moroney at the station house, Grant "observed * * * a person whom he recognized” as the subject of his on-the-scene observation (CPL 60.25, subd 1, par [a], cl [ii]).

As to the constitutionality of the procedures followed by the police in connection with the so-called showup at which Grant identified appellant, our review of the record reveals ample support for the suppression court’s finding that the circumstances were not "unnecessarily suggestive”. As affirmed by the Appellate Division, which found that the showup was in fact "accidental” and that the identification thereat was spontaneous and untainted by any "untoward police conduct”, the determination is beyond our power of review (People v Gruttola, 43 NY2d 116, 122).

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

Order affirmed in a memorandum.


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    Bradford B. Broughton, Appellant, v Frederick V. Dona, Jr., Defendant, and Gary L. Camp et al., Respondents.
    Submitted January 22, 1979;
    decided March 27,1979
   On the court’s own motion, plaintiffs appeal as against Mutual Life Insurance Company of New York dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    I.C.C. Metals, Inc., Respondent, v Municipal Warehouse Company, Appellant.
    Submitted February 12,1979;
    decided March 27,1979
   Motion for leave to appeal granted.

Motion for a stay pursuant to CPLR 5519 (subd [c]) denied, without prejudice to the pursuance of any rights appellant might have under CPLR 5519 (subd [a], par 2).


text:
    Marine Midland Bank, Appellant, v John E. Russo Produce Co., Inc., et al., Respondents.
    Submitted February 26,1978;
    decided March 27, 1979
   Motion for leave to appeal granted.

Motion for a stay granted, and the effect of the order appealed from, as well as that of the order of Special Term dated January 30, 1979, upon the attachment of funds by the plaintiff is hereby stayed pending the determination of the appeal (CPLR 5519, subd [c]).


text:
    The People of the State of New York, Respondent, v Frank Fea and John Prunty, Appellants.
    Submitted March 26, 1979;
    decided March 27, 1979
   Motion to dismiss the appeal by defendant Prunty granted and said appeal dismissed, upon the ground that the criminal prosecution as to said defendant has abated by reason of his death (see People v Mintz, 20 NY2d 753, 770).


text:
    Floran Yagoda, Respondent, v Charles L. Yagoda, Appellant.
    Decided March 27, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


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    The People of the State of New York, Appellant, v James Spivey, Respondent.
    Argued February 9, 1979;
    decided March 29, 1979

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Allen H. Saperstein and Billie Manning of counsel), for appellant.

      Elaine Stogel and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, and the matter remitted to the Appellate Division for a review of the facts.

On the record before us, we are unable to conclude that the challenged police conduct was unreasonable. Having just received a police radio call informing them that an armed robbery had been, committed (see People v Havelka, 45 NY2d 636, 640-641), the officers were justified in stopping defendant, who met the description of the robber and was walking on a deserted street in the vicinity of the crime (see People v Green, 35 NY2d 193, 196). Similarly, the limited pat-down of Spivey was proper. During questioning, defendant refused to furnish his name or a specific address, and he repeatedly removed his hands from the radio car and shuffled them around. Given this situation and defendant’s status as an armed-robbery suspect, it was quite reasonable for the officer to investigate the suspicious bulges in the jacket pockets (see, also, People v McLaurin, 43 NY2d 902; People v Kinlock, 43 NY2d 832).

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

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


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    International Modular Housing, Inc., Appellant, v Atlanta Shipping Corporation et al., Respondents.
    Submitted February 15, 1979;
    decided March 29, 1979

      APPEARANCES OF COUNSEL

      Michael C. Silberberg and Lois F. Wasoff for appellant.

      Philip J. Curtin and Edwin F. Lambert, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendants-respondents, to the extent of vacating the stay as to defendant-respondent Marine Transport Overseas, Inc., and, as so modified, affirmed.

We are in agreement with the majority of the Appellate Division that defendant Atlanta Shipping Corp. did not waive its right to arbitrate the claims embraced by the fourth, fifth and sixth causes of action in plaintiffs complaint by asserting a counterclaim with respect to nonarbitrable causes of action. However, in ordering the parties to arbitrate their disputes, the courts below stayed the pending Supreme Court action not only as to Atlanta but as to defendant Marine Transport as well. Marine Transport is not a party to the arbitration agreement and will not be bound by the terms of any award rendered by the arbitrators. Accordingly, there was no basis for staying plaintiffs claims against Marine Transport and that portion of the stay should be vacated.

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

Order modified, with costs to defendants-respondents, in accordance with the memorandum herein and, as so modified, affirmed.


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    In the Matter of the Board of Education of the City School District of the City of New York, Respondent, v United Federation of Teachers, Local No. 2, AFT, AFL-CIO, Appellant.
    Argued February 15, 1979;
    decided March 29, 1979

      APPEARANCES OF COUNSEL

      Paul H. Janis and James R. Sandner for appellant.

      Allen G. Schwartz, Corporation Counsel (Larry A. Sonnen-

      shein, L. Kevin Sheridan and Renee Modry of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Neither public policy nor the provisions of former paragraph (f) of subdivision 2 of section 210 of the Civil Service Law (L 1967, ch 392, § 2, repealed L 1978, ch 465, § 1), prohibit a public employer from augmenting the procedural mechanisms available to review the dismissal of an employee subject to the Taylor Law penalty probation (cf. Tuller v Central School Dist. No. 1 of Towns of Conklin, Binghamton, Kirkwood & Vestal, 40 NY2d 487, 491-492). Since the board of education has not bargained away its ultimate right to terminate a nontenured teacher (see Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 777-778), the courts may not intervene and thwart the intent of the parties to arbitrate the issue of whether the board has followed the supplemental procedural steps available to these probationers (cf. Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167).

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

Order reversed, etc.


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    The People of the State of New York, Respondent, v James David Bruckman, Appellant.
    Argued January 12, 1979;
    decided March 29, 1979

      APPEARANCES OF COUNSEL

      Joseph A. Shifflett and Nathaniel A. Barrell for appellant.

      Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Inasmuch as defendant failed to object to the verdict as returned by the jury, his claim of repugnancy was not preserved for appellate review. (See People v Parks, 59 AD2d 543, 544; People v Incherchera, 56 AD2d 852; cf. Matter of Oliver v Justices of N. Y. Supreme Ct. of N. Y. County, 36 NY2d 53, 58; People v Quilles, 48 AD2d 933.)

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

Order affirmed in a memorandum.


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    The People of the State of New York, Respondent, v Milton Ford, Appellant.
    Argued February 9, 1979;
    decided March 29, 1979

      APPEARANCES OF COUNSEL

      Sheridan Albert for appellant.

      Eugene Gold, District Attorney (Alan D. Rubinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After careful review of the record before us, we conclude that appellant has not established that he was denied his right to effective assistance of counsel. Only recently, this court has noted that defense "[cjounsel may be reasonably expected to call upon witnesses to testify on behalf of a defendant only when such witnesses exist.” (People v Aiken, 45 NY2d 394, 400.) Appellant has failed to demonstrate that the alleged alibi witnesses would testify at trial that appellant was not in the vicinity of the robbery during its commission, or that defense counsel’s decision not to bring forth these witnesses was clearly prejudicial to appellant and not the result of well-advised defense strategy.

Nor was appellant entitled to a hearing on his motion to vacate the judgment of conviction. Appellant’s papers in support of such motion fail to include affidavits of his potential alibi witnesses revelatory of their testimony which would have been given at trial. Appellant merely submitted unverified letters and records, together with conclusory, handwritten notes of an investigator who had contacted these witnesses prior to trial. To conclude that these witnesses could have established appellant’s alibi defense at trial, we would, by necessity, be indulging in pure speculation. Hence, in the absence of evidentiary facts reflecting the existence of an issue, a hearing was not required. (People v Session, 34 NY2d 254.)

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

Order affirmed in a memorandum.


text:
    In the Matter of Jose L. I. and Another. Edwin Gould Services for Children, Appellant; Mildred I., Respondent.
    Argued February 13,1979;
    decided March 29, 1979.

      APPEARANCES OF COUNSEL

      Michael A. Neff for Edwin Gould Services, appellant.

      Wendy Sue Lauring, William E. Hellerstein and Charles Schinitsky for Law Guardian, appellant.

      Louis L. Frank and Yvonne Lawrence for respondent.
   OPINION OF THE COURT

Memorandum.

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

Both courts below have found, as a question of fact, that respondent did not permanently neglect her children by failing to plan for their future. (See Family Ct Act, § 611.) On the sparse record before us, we cannot say otherwise, as a matter of law.

We take this occasion, however, to comment upon the findings of fact, or lack thereof, made by the Family Court and affirmed by the Appellate Division, without opinion. A trial court must state in its decision "the facts it deems essential” to its determination. (CPLR 4213, subd [b].) While the court need not set forth evidentiary facts, it must state ultimate facts: that is, those facts upon which the rights and liabilities of the parties depend. (See Rosen Trust v Rosen, 53 AD2d 342, 361, affd 43 NY2d 693; Fischer v Fischer, 45 AD2d 917.)

In the present case, the Family Court made no findings of fact, concluding only that it was not persuaded that appellant had proved its case. (Family Court indicated an intention to make such findings, but failed to do so, and the parties acquiesced in such failure.) Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court — the court best able to measure the credibility of the witnesses. This weighty responsibility cannot be shirked, as in this case, by reference to an ultimate conclusion of the court rather than a statement of its required findings of fact. Notwithstanding the failure of the Family Court to satisfy its obligation under the CPLR, however, we do not remit this case to the Family Court only because our independent examination of the record reveals insufficient evidence to support a conclusion that respondent permanently neglected her children.

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

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Arnold Blakely, Appellant.
    Argued February 9, 1979;
    decided March 29,1979

      APPEARANCES OF COUNSEL

      Richard T. Farrell for appellant.

      Eugene Gold, District Attorney (Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Testimony at the suppression hearing established that the defendant was a passenger in a taxicab which approached a marked police cruiser at 3:15 a.m. When the taxi was a quarter of a block away the police observed that its high beam lights were flashed and the horn was blown. It appears that the use of the high beam light by a cab driver is a signal of trouble, pursuant to the police department’s temporary operating procedure. The officers followed the cab until it stopped in the middle of the street. The driver motioned through his open window and when the officers approached on foot, he indicated to them that he was in the process of being a victim of a crime and exclaimed "These guys are trying to hold me up”. Clearly, the ensuing arrest was supported by probable cause to believe that a crime was being committed, and the drugs seized during the search incident to that arrest were properly admitted into evidence.

Defendant’s argument that the sentence imposed was unconstitutionally disproportionate to the act is likewise without merit (People v Broadie, 37 NY2d 100, cert den 423 US 950).

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

Order affirmed in a memorandum.


author: Jasen, J.

text:
    Hartford Insurance Company, Respondent, v County of Nassau, Appellant, and Richard A. Jaeger, Respondent, et al., Defendants.
    Argued February 12,1979;
    decided March 29, 1979
    APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (Robert O. Boyhan and Matthew A. Tedone of counsel), for appellant.

      James M. O’Brien for Hartford Insurance Company, respondent.

      Raymond J. MacDonnell, Philip Hoffer, Rose L. Hoffer and Peter T. Affatato for Richard A. Jaeger, respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, with costs, and the judgment of Supreme Court, Nassau County, reinstated.

In order to effectively disclaim liability or deny coverage for death or bodily injury under an automobile liability insurance policy, an insurer must "give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage” (Insurance Law, § 167, subd 8). A failure by the insurer to give such notice as soon as is reasonably possible after it first learns of the accident or of grounds for disclaimer of liability or denial of coverage, precludes effective disclaimer or denial (see Allstate Ins. Co. v Gross, 27 NY2d 263; Matter of Allstate Ins. Co. [Frank], 44 NY2d 897).

In the instant case, which was submitted to the courts upon an agreed statement of facts, the insurer was first notified of the accident on November 4, 1976, more than 45 months after the date of the accident. Rather than sending any notice of disclaimer of liability or denial of coverage to the insured, the insurer instead commenced this action seeking a declaration of its obligations under the policy on January 5, 1977, some two months after it first received notice of the accident. No explanation whatsoever was given for this two-month delay by the insurer. The only thing which the record indicates that the insurer did during the two-month period was to send a letter to the insured agreeing to defend it in the pending tort suit but reserving any rights the insurer might otherwise have. This letter, of course, could not serve as a notice of disclaimer of liability or denial of coverage, and would be relevant only in the event that the insured should claim that the insurer had waived its right to disclaim by conducting the defense. A reservation of rights letter has no relevance to the question whether the insurer has timely sent a notice of disclaimer of liability or denial of coverage (see Allstate Ins. Co. v Gross, supra, at p 269). As for the commencement of this action, even assuming arguendo that it could serve as a notice of disclaimer of liability or denial of coverage, we conclude that where, as here, no explanation is offered for the delay in disclaiming liability or denying coverage, a delay of two months is unreasonable as a matter of law, and hence the insurer may not disclaim liability or deny coverage in this case.

Normally the question whether a notice of disclaimer of liability or denial of coverage has been sent "as soon as is reasonably possible” is a question of fact which depends on all the facts and circumstances, especially the length of and the reason for the delay (see Allstate Ins. Co. v Gross, supra, at p 270). It is only in the exceptional case that it may be decided as a matter of law. Where, however, as here, there is absolutely no explanation for the delay provided by the insurer, a delay of two months is, as a matter of law, unreasonable.

In response to the dissent, we note that the insurer has had a full opportunity to explain the delay, and has failed to do so. Although a two-month delay may often be easily justified, if in fact there be justification, no attempt was made to do so in this case, and speculation as to possible legitimate reasons for the delay is inappropriate. It is the responsibility of the insurer to explain its delay; it is not the function of the courts to engage in speculation as to what might have happened in order to remedy a failure of proof.

Jasen, J.

(dissenting). I cannot agree with the court’s conclusion that an unexplained delay by an insurer "in disclaiming liability or denying coverage [for] two months is unreasonable as a matter of law.” I had thought the rule to be that an insurer give written notice of disclaimer of liability or denial of coverage as soon as is reasonably possible. (Insurance Law, § 167, subd 8.) As a foundation, the statute requires "unreasonableness” as a standard for delay; thus, no specific time period is deemed to constitute undue delay. "Rather the question of unreasonablenss”, we said in Allstate Ins. Co. v Gross (27 NY2d 263, 270), "becomes a question of fact, or if extreme, of law, depending upon the circumstances of the case which make it reasonable for the insurer to take more or less time to make, complete, and act diligently on its investigation of its coverage or breach of conditions in its policy.” (Emphasis supplied.)

The agreed statement of facts discloses that the insurer was first notified by the county of the accident nearly four years after the date of the accident. Forthwith, the insurer provided a defense and within 11 days advised the insured county by letter of its reservation of rights as to coverage. Within two months, insurer commenced this action for declaratory judgment to disclaim liability and coverage under the insurance policy issued by the insurer.

Based on these undisputed facts and circumstances, can it be said that, even without explanation, the period of two months was an unreasonable or extreme delay, as a matter of law, in commencing the declaratory judgment action to disclaim? I think not. The question is the promptness and forthrightness of the insurer’s response to the insured’s unreasonable delay in notifying the insurer of its claim. It seems most unfair to hold, as the majority does, that the insured county had nearly four years to notify the insurer of the existence of the claim and that the insurer must review a stale claim on the eve of trial and make an absolute decision to disclaim in less than two months. To so hold, the majority ignores the realities of the situation presented — to wit, the additional time required to investigate an accident which occurred almost four years prior to notification of the claim. It should further be stressed that if the insurer errs in its decision to disclaim coverage, a possibility enhanced by the necessity to conduct a hasty investigation, it will be subjected to an action to compel it to defend. (See Downey v Merchants Mut. Ins. Co., 30 AD2d 171, affd 23 NY2d 989.)

In addition, it should be emphasized that this case was decided upon an agreed statement of facts; thus, the parties were not accorded a full opportunity, in a trial setting, to establish their respective positions. While it could be argued that the insurer should not now be permitted to take refuge behind its failure, or more likely, oversight, to include statements which would justify its delay, I would think such justification is implicit in the peculiar circumstances presented by this case.

For these reasons, I agree with the unanimous court at the Appellate Division that "under the facts of this case, the insurer’s delay in disclaiming was not unreasonable as a matter of law (cf., Allstate Ins. Co. v Gross, 27 NY2d 263)” and, accordingly, would aifirm.

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

Order reversed, etc.


text:
    David Cornell, Appellant, v State of New York, Respondent.
    (Claim No. 54482.)
    Argued February 13, 1979;
    decided March 29, 1979

      APPEARANCES OF COUNSEL

      Bradley B. Davis for appellant.

      Robert Abrams, Attorney-General (Jeremiah Jochnowitz and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, without costs. The dispositive question on this appeal is whether the State should be held vicariously liable for intentional torts committed by its employees outside the scope of their employment on the basis of a purported special protective duty owed the victim by the State. At the age of 14, while a patient in a State mental health facility, plaintiff was homosexually raped by a male attendant. He now seeks to recover damages from the State.

In the absence of any negligent behavior by an employer, liability for acts of an employee may generally be imposed upon the employer pursuant to the doctrine of respondeat superior if the employee was acting within the scope of his employment (Sauter v New York Tribune, 305 NY 442). Although normally it is necessary that the act complained of actually be within the scope of employment, which was not the situation in this case, there are a few exceptions to this rule. One such exists if the employer "by contract or otherwise, has entered into some relation requiring him to be responsible for the protection of the plaintiff’ (Prosser, Law of Torts [4th ed], § 70, p 465; accord 2 Harper and James, Law of Torts, § 26.9, p 1391). In such instances, the employer may be held liable for entirely personal torts committed by its employees. Under common-law principles, this exception to the general rule has normally been applied for various policy reasons in cases involving common carriers (Stewart v Brooklyn & Crosstown R. R. Co., 90 NY 588) and innkeepers (De Wolf v Ford, 193 NY 397, 402), as well as in a few other extremely unusual situations (e.g., Stone v Eisen Co., 219 NY 205).

Plaintiff now urges us to apply this exception so as to impose absolute liability upon the State for any injuries suffered by patients at State institutions at the hands of State employees, even if those employees are not acting in the scope of their employment and the State is free from any fault. This we refuse to do, and to the extent that this rationale may have been employed in Foster v State of New York, (57 Misc 2d 281), we reject that decision. The relation between the State and patients at State institutions is sui generis, and is not aptly compared to the type of voluntarily assumed relationship which may carry with it the imposition of absolute liability.

As to plaintiffs other contentions, we find them to be without merit.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Auburn Police Local 195, Council 82, American Federation of State, County and Municipal Employees, AFL-CIO, Respondent, v Robert D. Helsby et al., Constituting the Public Employment Relations Board, Appellant, et al., Respondent.
    Argued February 15, 1979;
    decided March 29, 1979

      APPEARANCES OF COUNSEL

      Jerome Thier and Martin L. Barr for appellant.

      Richard R. Rowley for respondent.

      Bernard T. King and James R. La Vaute for American Federation of State, County and Municipal Employees, New York Council 66, AFL-CIO, amicus curiae.

      Beverly Gross and Linda M. Nelson for Municipal Labor Committee, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (62 AD2d 12).

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


text:
    In the Matter of Gerald G. G. (Anonymous). Kerry B. M. (Anonymous) et al., Appellants; Gerald P. G. (Anonymous), Respondent.
    Submitted March 12, 1979;
    decided March 29, 1979
   Renewed motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that appellants are not presently available to obey the mandate of this court (see Matter of Gerald G. G., 46 NY2d 813).

Cross motion to consolidate appeals dismissed as academic.


text:
    In the Matter of Michael J. Codd, as Former New York City Police Commissioner, Respondent, v Robert McGuire, as Police Commissioner of the City of New York, et al., Constituting the Board of Trustees of the Police Pension Fund of the City of New York, et al., Appellants.
    Submitted February 20, 1979;
    decided March 29, 1979
   Motion for leave to appeal dismissed, upon the ground that the order sought to be appealed from does not finally determine the proceeding and it is not "an order of the appellate division” within the meaning of CPLR 5602 (subd [a], par 2).


text:
    In the Matter of Francis E. Rinehart, an Attorney, Appellant. Committee on Grievances of the Association of the Bar of the City of New York, Respondent.
    Submitted March 12, 1979;
    decided March 29, 1979
   On the court’s own motion, the appeal taken as of right from the order of the Appellate Division dated December 7, 1978 disposing of that court’s motions Nos. 474A and 3009A dismissed, without costs,. upon the ground that no substantial constitutional question is directly involved; motion for leave to appeal from said order denied.

Motion for a stay dismissed as academic.


text:
    In the Matter of Susan W., Respondent, v Amhad Q., Appellant.
    Submitted February 26,1979;
    decided March 29,1979
   Motion for an order directing that support payments be held in escrow pending disposition of the motion for leave to appeal dismissed as academic.


text:
    The People of the State of New York, Respondent, v William Bryant, Appellant.
    Submitted March 5,1978;
    decided March 29,1979
   Motion to dismiss the appeal herein granted and the appeal dismissed upon the ground that the appeal does not lie (CPL 450.90, subd 2).


text:
    The People of the State of New York ex rel. Kenneth Hajduchik, Appellant, v Warden, New York City House of Detention for Men, Respondent.
    Submitted March 12, 1979;
    decided March 29,1979
   On the court’s own motion, appeal transferred, without costs, to the Appellate Division, First Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2; Matter of Bartsch v State of New York, 33 NY2d 938). Motion for assignment of counsel dismissed as academic.


text:
    Anita C. R. Silberman, Respondent, v Ira Silberman, Appellant.
    Submitted February 20,1979;
    decided March 29, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the modification. at the Appellate Division is not in a respect which is within the power of the Court of Appeals to review (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


text:
    In the Matter of Bes Corporation, Respondent, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Appellants.
    Argued February 16, 1979;
    decided April 3, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Nigel G. Wright, Ruth Kessler Toch and William J. Kogan of counsel), for appellant.

      Stanley M. Spiegler for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from should be reversed, with costs, and the determination of respondent commission should be reinstated. In an article 78 proceeding challenging a determination of the State Tax Commission which assesses sales tax liability following a hearing required by section 1138 of the Tax Law, the court must sustain that determination unless it is not supported by substantial evidence (CPLR 7803, subd 4). The evidence before the commission in this instance showed that petitioner shipped the school uniforms directly to the students’ parents, rather than to the parochial schools, and billed the parents directly, rather than the schools. This evidence suffices to support the commission’s determination that the sales were made by petitioner directly to the parents, and not "by or to” the tax-exempt schools (see Tax Law, § 1116). Accordingly, it was error for the Appellate Division to set aside the determination of the commission.

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

Judgment reversed, etc.


text:
    In the Matter of Marcelino Garcia, Appellant, v Federal Insurance Company, Respondent.
    Argued February 12, 1979;
    decided April 3, 1979

      APPEARANCES OF COUNSEL

      Melvin Rubin and Floyd Sheeger, Jr., for appellant.

      William R. Brick, Jr., and E. John McNulty for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the arbitration award reinstated.

The question submitted for arbitration was: "Is a conviction or plea or charge of Driving while intoxicated required for the claimant to be excluded from benefits under Section 672 Subd 2(b) of the Insurance Law?” The arbitrator answered the question affirmatively and we see no grounds to upset this determination. Section 672 of the Insurance Law provides that "An insurer may exclude from coverage required by subdivision one a person who * * * (b) is injured as a result of operating a motor vehicle while in an intoxicated condition * * * (within the meaning of section eleven hundred ninety-two of the vehicle and traffic law)”. Since section 1192 of the Vehicle and Traffic Law makes operating a motor vehicle while intoxicated a misdemeanor, we do not find the decision of the arbitrator, requiring a conviction or guilty plea to a charge under that section so irrational as to warrant vacatur. It is noted that the arbitrator’s decision has no necessary precedential effect since it does not construe the statute but merely resolves its application as between the parties to the arbitration. In addition it would seem most inappropriate to criticize the arbitrator for determining the very question presented to him for resolution by the parties.

Jasen, J.

(dissenting). I dissent and would affirm the order of the Appellate Division.

Were this a consensual arbitration the review of which is governed by CPLR article 75, I would agree that the arbitrator’s determination was not so irrational as to require its vacatur. However, inasmuch as submission of this dispute to arbitration was not consensual but compulsory (Insurance Law, § 675, subd 2; Matter of Walters [Government Employees Ins. Co.], 57 AD2d 843), due process demands application of a more critical standard of review. (Mount St. Mary’s Hosp. v Catherwood, 26 NY2d 493, 508.) Unlike a determination made in a consensual arbitration, which may be vacated only if completely irrational (CPLR 7511, subd [b]; see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582), a determination made in a compulsory arbitration may be vacated where the determination lacks a rational basis. (Caso v Coffey, 41 NY2d 153, 158; Mount St. Mary’s Hosp. v Catherwood, 26 NY2d, at p 508, supra.)

Applying this standard of review to the case at hand, I conclude that the arbitrator’s award lacks a rational basis. To interpret the reference in the Insurance Law (§ 672, subd 2) to the Vehicle and Traffic Law (§ 1192), as requiring a conviction before an insurer may disclaim coverage because of an insured’s intoxication is, in my view, arbitrary and capricious. Certainly, the sole purpose for which this statutory reference was included was to provide a definition of intoxication.

As the Appellate Division observed, to permit an insurer to disclaim coverage only if the insured is convicted of driving while intoxicated places an unreasonable burden upon the insurer. First, as the court noted, the more stringent standard of proof in a criminal case would require that intoxication be proved beyond a reasonable doubt — a requirement standing in marked contrast to additional exclusions available under section 672 provable by a preponderance of the evidence. Moreover, there always exists the possibility that a disclaimer may never be available if, in the exercise of discretion, an insured is not prosecuted for driving while intoxicated.

For these reasons, I would agree with the Appellate Division that the arbitrator’s determination lacked a rational basis and should be vacated.

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

Order reversed, etc.


text:
    Robert Thomas, Appellant, v State of New York, Respondent.
    (Claim No. 60123.)
    Argued February 7, 1979;
    decided April 3, 1979.

      APPEARANCES OF COUNSEL

      Harold A. Seidenberg for appellant.

      Robert Abrams, Attorney-General (Jeremiah Jochnowitz and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

From our review of the facts disclosed by the record (see NY Const, art VI, § 3, subd a; CPLR 5501, subd [b]), and for the reasons stated in the opinion of Judge Dorothea E. Donaldson in the Court of Claims and the dissenting opinion of Mr. Justice Louis M. Greenblott at the Appellate Division, we conclude that in this case the weight of the evidence supports the determination reached by the Court of Claims. In that connection, we bear in mind that a police officer who arrests an intoxicated driver assumes the duty of exercising the care reasonably required in the circumstances to assure the safety of a person in that condition (Parvi v City of Kingston, 41 NY2d 553, 559-560). Accordingly, the order of the Appellate Division should be reversed and the judgment of the Court of Claims reinstated.

Jasen, J.

(dissenting). In the early morning hours of February 3, 1976, Officer Forbes while patrolling the Palisades Parkway, came upon a 1973 Chrysler Newport automobile which had skidded off the ice-slick surface, coming to rest with its engine still racing in the center mall. Officer Forbes approached the car to offer assistance to the driver, claimant herein, who initially rejected his help. After some persuasion, however, the claimant did open the car door. Officer Forbes, a patrolman with 14 years police experience, testified that he detected the smell of alcohol and that claimant’s eyes appeared glassy and his speech slurred. Claimant was placed under arrest for driving while intoxicated and, thereafter, taken to Nyack Hospital for a blood test.

Upon his arrival at the hospital, claimant became hostile and adamantly refused the administration of the blood test. In an attempt to subdue him, Officer Forbes handcuffed claimant’s wrists behind his back, and placed him in the backseat of the police car for a short drive to the station. En route, claimant began screaming that the handcuffs were too tight, complaining of substantial pain. Officer Forbes, in an attempt to alleviate claimant’s discomfort, pulled off the road into a gas station. Although the pavement had been plowed, there remained a thin layer of snow and ice. Officer Forbes assisted claimant from the car and warned him to be careful because it was slippery. After loosening the handcuffs, Forbes stood claimant against the car so that he could open the door. At that moment, claimant fell and sustained a broken nose.

Alleging various causes of action, claimant sought recovery against the State. The Court of Claims dismissed all the causes of action except negligence, sustained that cause and awarded claimant $14,500 in damages. The Appellate Division, one Justice dissenting, reversed the judgment and dismissed the claim, finding "nothing in the conduct of Officer Forbes which constituted negligence.” This court would now reverse the order of the Appellate Division and reinstate the judgment of the Court of Claims. I cannot agree with this determination and, therefore, respectfully dissent.

Prefatorily, mention should be made of claimant’s contention that insofar as he was suffering from traumatic amnesia during the incident, "his burden of proof as to the negligence of the State was lessened.” While this would appear to be the law in this State (Schechter v Klanfer, 28 NY2d 228), this rule "does not * * * shift the burden of proof or eliminate the need for plaintiffs to introduce evidence of a prima facie case.” (Id., at p 233.) In my view, claimant has failed to establish a prima facie case of negligence.

While police officers arresting a driver who appears to be in an impaired state due to the excess ingestion of alcohol owe that person the duty to exercise reasonable care (Parvi v City of Kingston, 41 NY2d 553, 559-560), this does not mean that liability will attach for every unfortunate mishap which might occur to an individual in custody, for the State is not an "insurer” of a person’s well-being. Rather, if the evidence demonstrates that the police officers employed reasonable care, their duty is satisfied and the State will not be held liable under the doctrine of respondeat superior.

An act recognized by a reasonable man "as involving a risk of harm to another” is negligent only "if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.” (Restatement, Torts 2d, § 291.) Here, the officer, responding to claimant’s protests of discomfort, pulled into a gas station to loosen the handcuffs to relieve any pain claimant may have been experiencing. Unlike the situation in Parvi v City of Kingston (41 NY2d 553, 560, supra), where the police officers abandoned two inebriated persons "in the dead of night in a lonely rural setting within 350 feet of a superhighway”, a clearly apparent hazard, claimant was not at anytime left unattended and he was expressly warned that the surface was slippery. Further, although it is arguably foreseeable that an intoxicated individual may lose his balance, Officer Forbes was situated in close proximity to the claimant at all times. It should be abundantly clear from these facts that he undertook all the reasonable precautions necessary to protect claimant from injury.

While a person in an inebriated state obviously requires some degree of special care, it is totally unreasonable to demand that police officers insulate such an individual from all unexpected harm. The standard to be employed is one of "reasonableness”, not "perfection”, and the record discloses that Officer Forbes, given the circumstances of this case, fulfilled his duty to exercise reasonable care.

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

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Irving Adams, Appellant.
    Argued February 16, 1979;
    decided April 3, 1979
    APPEARANCES OF COUNSEL

      David B. Perlmutter for appellant.

      Eugene Gold, District Attorney (Jane S. Myers of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Despite the defendant’s manifested awareness of the Trial Judge’s involvement in the plea negotiations and of the statutorily prescribed term for a class A-III felony, neither at the time he decided to plead guilty, nor at his sentencing four months later, did the defendant take any exception. Nor did he subsequently move to vacate the plea and the sentence imposed thereon. Consequently, any errors in connection therewith, if errors they were, not having been preserved, are now beyond our power of review (CPL 470.05, subd 2; People v McGowen, 42 NY2d 905, 907 [alleged sentence defect resulting from court’s failure to make youthful offender determination]; People v Adams, 38 NY2d 605, 607 [alleged speedy trial defect]).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Lynn J. Primmer, Also Known as Glen J. Jackson, Appellant.
    Argued March 21, 1979;
    decided April 3, 1979
    APPEARANCES OF COUNSEL

      Jack R. Lebowitz for appellant.

      Daniel T. Smith, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant claims that he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution in that he was not afforded a speedy trial within 180 days of his notification to the District Attorney that he was imprisoned in Texas (CPL 580.20). It is conceded, however, that he first raised his alleged deprivation at the Appellate Division; "and, not having raised the issue in the court of first instance, there is no error to be reviewed” (People v Adams, 38 NY2d 605, 607; see, also, People v Adams, 46 NY2d 1047 [decided herewith]). In view of this disposition we do not reach or consider the merits of the issue tendered by defendant.

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

Order affirmed in a memorandum.