text:
    The People of the State of New York, Respondent, v Carlos Roldan, Appellant.
    Argued January 10, 1985;
    decided February 7, 1985
    APPEARANCES OF COUNSEL

      Mark J. Elder and Mary Rowen Obelkevich for appellant.

      Robert M. Morgenthau, District Attorney (Anne Beane Rudman and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Div ision should be affirmed.

Defendant held three people hostage in an apartment building lobby by threatening them with ai large knife while demanding that the police secure him transportation to Puerto Rico where his mother lived. While this behavior may have been bizarre and unlikely to succeed, the jury could still conclude based on Dr. Herman’s testimony, beyond a reasonable doubt, that defendant had substantial capacity to know or appreciate the nature and consequences of his conduct and that the conduct was wrong (cf. People v Wofford, 46 NY2d 962).

Additionally we cannot conclude that defendant did not receive the effective assistance of counsel. Defendant asserts that there were several errors in the court’s charge with respect to his insanity defense to which his trial counsel failed to object. Beyond the fact that defendant failed to raise this claim in a posttrial motion (CPL 440.10), the assertion ignores the finding of fact made by the trial court in. settling the transcript, and affirmed by the Appellate Division, that the critical errors revealed by the transcript were the result of a stenographer’s mistakes and were not actually in the court’s charge. Defendant’s further contention that his lawyer should not have relied almost exclusively on an insanity defense is merely an attempt to second-guess what may have been a sound strategy, even if unsuccessful, in light of the clear proof with respect to all the elements of kidnapping and unlawful imprisonment (see, People v Baldi, 54 NY2d 137).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Arbitration between Board of Education, Florida Union Free School District, Respondent, and Florida Teachers Association et al., Appellants.
    Decided February 7, 1985

      APPEARANCES OF COUNSEL

      Joel H. Golovensky and Joann M. Calderone for appellants.

      Elizabeth A. Truly for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (104 AD2d 411).

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


text:
    In the Matter of the Arbitration between Board of Education, Florida Union Free School District, Appellant, and Florida Teachers Association et al., Respondents.
    Decided February 7, 1985

      APPEARANCES OF COUNSEL

      Joel H. Golovensky and Joann M. Calderone for appellant.

      ELizabeth A. Truly for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (104 AD2d 412).

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


text:
    In the Matter of Ronald L. Fabrizio.
    Decided February 7, 1985
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Ronald L. Fabrizio is suspended with pay, effective immediately, from his office of Justice of the Town Court of New Windsor, Orange County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    The People of the State of New York, Respondent, v Craig Winchell, Appellant.
    Argued January 9, 1985;
    decided February 7, 1985
    APPEARANCES OF COUNSEL

      Richard T. Aulisi and Robert M. Cohen for appellant.

      William H. Gritsavage, District Attorney (Robert A. Martin, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Both lower courts found that defendant voluntarily accompanied the police to the station house, that the initial police questioning was investigatory into defendant’s complaint of an assault rather than custodial, that defendant was given Miranda warnings upon the change of his status from a victim to a suspect, that he waived his rights intelligently and voluntarily prior to being questioned about his involvement in the victim’s death, and that there was no deception or other deliberate attempt on the part of the police to isolate defendant from his mother in order to deprive him of the assistance of counsel or to obtain a confession. There being support in the record for these affirmed findings of fact, this court is bound thereby. (People v Robles, 27 NY2d 155, 157, cert denied 401 US 945; see also, People v De Tore, 34 NY2d 199, 206, cert denied sub nom. Wedra v New York 419 US 1025.) Consequently, it cannot be said, as a matter of law, that defendant was deprived of his rights against compulsory self-incrimination or to the assistance of counsel. (See, People v Burd, 18 NY2d 832, 833; People v Hocking, 15 NY2d 973; compare, People v Townsend, 33 NY2d 37, 41; People v Bevilacqua, 45 NY2d 508, 514-515.)

Additionally, the trial court’s improper bolstering of the People’s medical expert and its excluding evidence of the victim’s prior sexual conduct with defendant (CPL 60.42 [1]) were harmless. The impact of the former was diminished by the court’s repeated instruction to the jurors to reserve their own judgment on the credibility of all witnesses; the effect of the latter was attenuated by defendant’s own testimony concerning his relationship with the victim and by the withdrawal of the rape charge which precluded its being submitted to the jury. Moreover, the evidence of defendant’s guilt as to the remaining charge was overwhelming. (People v Crimmins, 36 NY2d 230, 240-242; see also, People v Moulton, 43 NY2d 944, 946.)

We have considered defendant’s other contentions and find them to be without merit.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed in a memorandum.


text:
    In the Matter of William W. Seiffert.
    Decided February 7, 1985
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable William W. Seiffert is suspended with pay, effective immediately, from his office of Judge of the District Court, Nassau County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Judges Jasen, Meyer, Simons, Kaye and Lynch. Taking no part: Chief Judge Wachtler and Judge Alexander.


text:
    The People of the State of New York, Respondent, v Victor K. Modica, Appellant.
    Argued January 9, 1985;
    decided February 7, 1985

      APPEARANCES OF COUNSEL

      George Grun, John F. Middlemiss, Jr., and Alfred J. Cicale for appellant.

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

Memorandum."

The order of the Appellate Division should be modified and the case remitted to Supreme Court for resentence and, as so modified, should be affirmed.

The voluntariness of defendant’s plea involves a mixed question of law and fact beyond the review powers of this court (People v Harrison, 57 NY2d 470, 477). Moreover, the mistake of counsel with respect to minimum sentence does not rise to the level of ineffective assistance of counsel, the test being “reasonable competence”, not perfect representation (People v Baldi, 54 NY2d 137,146), there being no question that the bargained-for sentence, though not in fact the minimum, was substantially less than the maximum, and no question that the Trial Judge and both attorneys were laboring under the same misapprehension.

But though the plea cannot be set aside for either of the foregoing reasons, the sentence, which was imposed as a second violent felony offender although the predicate offense was not designated a violent felony until 24 days after defendant committed the robbery as to which he pleaded guilty, was illegal and, therefore, as the People conceded on oral argument, there must be a remand for resentencing.

Chief Judge Wachtler arid Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

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


text:
    Eliahu Lipkis, Respondent, v Mario Pikus et al., Appellants.
    Argued January 7, 1985;
    decided February 7, 1985

      APPEARANCES OF COUNSEL

      Kenneth G. Schwarz and Stuart F. Gruskin for appellants.

      Nathaniel T. Helman and William H. Morris for respondent.
   OPINION OF THE COURT

Memorandum.

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

The only issue presented by the question certified was whether the Appellate Division had the power to grant the relief given to petitioner by that court. The Appellate Division had the power. We pass on no other issue. Question certified answered in the affirmative (see, Brady v Ottaway Newspapers, 63 NY2d 1031; Serenity Homes v Town Bd., 37 NY2d 841).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed, with costs, and question certified answered in the affirmative in a memorandum.


text:
    Islamic Republic of Iran, Appellant, v Ashraf Pahlavi, Respondent.
    Decided February 7, 1985

      APPEARANCES OF COUNSEL

      Brian O’Dwyer for appellant.

      Roger Boyle for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs (see, Islamic Republic of Iran v Pahlavi, 62 NY2d 474, cert denied_US_, 105 S Ct 783).

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


text:
    Kenneth J. Elliott, Appellant, v Eugene F. Gehen et al., Respondents.
    Decided February 7, 1985

      APPEARANCES OF COUNSEL

      Paul William Beltz and Ronald A. Sipos for appellant.

      Edward J. Taublieb for Eugene F. Gehen, respondent.

      Robert E. Glanville for American Honda Motor Co. and another, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (105 AD2d 1112).

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


text:
    Abraham D. Heitner, Individually and on Behalf of All Others Similarly Situated, Respondent, v Government Employees Insurance Company et al., Appellants.
    Argued January 10, 1985;
    decided February 7, 1985

      APPEARANCES OF COUNSEL

      Charles Platto, Kevin Burke, Christine Lepera and Ellen Perle for Government Employees Insurance Company and others, appellants.

      Frank L. Amoroso and David P. Franks for Lumbermens Mutual Casualty Company, appellant.

      Terence Quinlan and Peter K. Ledwith for Safeco National Insurance Company, appellant.

      Norman H. Dachs and Babette R. Yablon for respondent.

      Brian A. Sheridan and Willard M. Pottle, Jr., for Raymond Rios and others, amici curiae.

   OPINION OF THE COURT

Order reversed, with costs, and judgment of Supreme Court, Nassau County, reinstated for reasons stated in the opinion of Justice Arthur D. Spatt at Special Term (118 Misc 2d 752). Question certified answered in the negative.

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


text:
    Luis F. Ugarte, Appellant, v United States Lines, Inc., Respondent.
    Decided February 7, 1985

      APPEARANCES OF COUNSEL

      Edward M. Katz for appellant.

      R. Alexander Hulten for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, a seaman employed by defendant shipowner, went ashore on leave for a few hours during the evening of May 23, 1978, when the ship was docked for loading and unloading cargo in Bremerhaven, West Germany. On his return to the ship, he found that several railroad boxcars located on tracks near the ship impeded his access to the gangway. Plaintiff determined that the pathway between the boxcars and the edge of the pier was too dangerous for passage, and instead climbed between two of the boxcars and over a platform or coupling, which was wet from rain. In so doing, he slipped and fell, fracturing his leg. Plaintiff commenced this lawsuit under the Jones Act (46 USC § 688), alleging that the shipowner was negligent in failing to correct or warn of a hazardous condition on the pier. At the close of discovery, defendant moved for summary judgment. Special Term denied the motion, but the Appellate Division unanimously reversed and dismissed the complaint.

While an injury might occur in the course of employment within the meaning of the Jones Act even when it does not actually take place aboard ship (see, Braen v Pfeifer Transp. Co., 361 US 129, 132-133; O’Donnell v Great Lakes Co., 318 US 36), and even when the injured seaman is on shore leave at the time of the accident (see, Aguilar v Standard Oil Co., 318 US 724, 733-734; Marceau v Great Lakes Tr. Corp., 146 F2d 416, cert denied 324 US 872), here plaintiff has not raised a triable issue with respect to negligence on the part of defendant or any of its officers, employees or agents (see, De Zon v American President Lines, 318 US 660, 671-672; Quam v Mobil Oil Corp., 496 F Supp 986, affd 599 F2d 42, cert denied 444 US 950). Even if the duty of a shipowner to correct, or warn its employees of, an unsafe condition beyond the pier-end of the gangway attaches where the shipowner possesses some ownership interest in the pier or the pier owner acts as the shipowner’s agent by performing operational activities (see, Hopson v Texaco, Inc., 383 US 262; Sinkler v Missouri Pac. R. R. Co., 356 US 326, 331-332; see also, IB Hall-Sann-Bellman, Benedict on Admiralty § 29, at 3-200 — 3-201 [7th rev ed]), plaintiff has failed to adduce evidentiary proof in admissible form to sustain his conclusory assertion that defendant had control of the area in question by virtue of its relationship with the pier owner. Defendant’s summary judgment motion was therefore properly granted (see, Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).

Plaintiff argues, alternatively, that the shipowner has an obligation to take measures on the ship to warn of conditions on the pier, and that the shipowner has an absolute duty to repair and warn of potentially hazardous conditions in areas through which a seaman must pass in order to reach the ship. On the facts presented, neither contention has been shown to be an obligation imposed by general maritime law. Although we have jurisdiction to entertain suits brought under the Jones Act, we exercise such jurisdiction with great deference to Federal maritime law, and proceed cautiously, “cognizant that it is the general maritime law that governs the rights and liabilities of the parties” (Alvez v American Export Lines, 46 NY2d 634, 638, affd 446 US 274).

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

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


text:
    In the Matter of Irving Smith, Appellant, v New York City Employees’ Retirement System et al., Respondents.
    Argued January 8, 1985;
    decided February 7, 1985

      APPEARANCES OF COUNSEL

      John M. Boyle and Sidney Siller for appellant.

      Robert Abrams, Attorney-General (Alan W. Rubenstein, Robert Hermann and Peter H. Schiff of counsel), for New York State Employees’ Retirement System, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (99 AD2d 302).

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


text:
    Aetna Casualty and Surety Company, Appellant, v Merchants Mutual Insurance Company, Respondent.
    Argued January 10, 1985;
    decided February 7, 1985

      APPEARANCES OF COUNSEL
    A. Michael Gebo for appellant.

      Richard B. Meyer for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice John T. Casey at the Appellate Division (100 AD2d 318).

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


text:
    Edward P. Giaimo, Jr., Respondent, v Suzanne Bicjan, Appellant.
    Submitted February 4, 1985;
    decided February 7, 1985
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

Motion for leave to appeal and for a stay dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see, NY Const, art VI, § 3 [b] [7]).


text:
    Frank A. Summa, Appellant, v Thomas Russo et al., Respondents.
    Submitted December 31, 1984;
    decided February 7, 1985
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie from the unanimous order of the Appellate Division (CPLR 5601).

Motion, treated as one for leave to appeal and for other relief, denied.


text:
    Herbert Walker, Appellant, v City of New York et al., Respondents.
    Submitted January 7, 1985;
    decided February 7, 1985
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (NY Const, art VI, § 3; CPLR 5602).


text:
    Michael J. Caruso et al., Appellants, v Richard W. Hall, Respondent.
    Decided February 12, 1985

      APPEARANCES OF COUNSEL

      John R. Massaroni for appellants.

      Frank M. Pell for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 967).

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


text:
    In the Matter of Moses I. Berliner Realty, Inc., Respondent, v Daniel W. Joy, as Commissioner of the Department of Rent and Housing Maintenance, Respondent, and Lawrence N. Levine, Appellant.
    Decided February 12, 1985

      APPEARANCES OF COUNSEL

      Morgan Kennedy for appellant.

      Vincent J. Sama and Alan W. Ginsberg for Daniel W. Joy, as Commissioner of the Department of Rent and Housing Maintenance, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, upon the ground that the challenged determination was not supported by substantial evidence in the record.

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


text:
    Villa Charlotte Bronte, Inc., et al., Respondents, and Bruno Lederer, Respondent-Appellant, v Commercial Union Insurance Company, Appellant-Respondent.
    Argued January 3, 1985;
    decided February 12, 1985

      APPEARANCES OF COUNSEL

      Alfred E. Page, Jr., and J. Russell Clune for Commercial Union Insurance Company, appellant-respondent.

      Joseph Zuckerman for Bruno Lederer, respondent-appellant.

      Richard M. Resnik for respondents.
   OPINION OF THE COURT

Memorandum.

The appeal of defendant Commercial Union Insurance Company should be dismissed, without costs, on the ground that as to it the order of the Appellate Division does not finally determine the action within the meaning of the Constitution (NY Const, art VI, § 3 [b] [1]).

On the appeal by plaintiff Lederer, the order of the Appellate Division should be reversed, with costs, and partial summary judgment granted in favor of plaintiff Lederer declaring that defendant Commercial Union Insurance Company is required to defend plaintiff Lederer in an action entitled O’Rorke v Lederer, et al. and to compensate him for the costs and expenses of his defense thus far in the action.

Defendant Commercial Union Insurance Company insured plaintiff Villa Charlotte Bronte, Inc., a cooperative apartment building, and its officers, directors and stockholders for damages resulting, inter alia, from defamatory statements made by the officers, directors and stockholders acting within the scope of their duties. As the result of a dispute between plaintiffs and one O’Rorke, certain statements were made which O’Rorke contends defamed him. He therefore brought an action against plaintiffs herein and they called upon defendant insurer to defend and indemnify them. After it refused to do so, plaintiffs brought this declaratory judgment action and moved for partial summary judgment requiring the insurer to defend them. Special Term denied the motions. The Appellate Division reversed and granted partial summary judgment to plaintiffs Villa Charlotte Bronte, Inc., and Abelman, president of the corporation, but dismissed the complaint of plaintiff Lederer, the vice-president (see, 98 AD2d 330). It found that Lederer was not entitled to relief because of an exclusion in the policy which provided that the insurance did not apply: “(d) to personal injury arising out of any publication or utterance * * * if the first injurious publication or utterance of the same or similar material by or on behalf of the named insured was made prior to the effective date of this insurance.” (Emphasis added.)

Finding that Lederer had made defamatory statements personally and not on behalf of the corporation before the inception of the policy on March 1, 1980, it held that Commercial Union had no duty to defend him. The O’Rorke complaint alleges, however, that Lederer made defamatory statements on behalf of the corporation after March 1,1980 and it cannot be determined as a matter of law that he did so earlier. But even if the Appellate Division was correct in finding that Lederer’s prepolicy statements were not made during the course of his duties, he was entitled to a defense on the statements the complaint charged him with making on behalf of the company, after the inception of the policy, which allegedly defamed O’Rorke. The insurer could only be excused from defending Lederer because of the language of the policy exclusion if it could establish, as a matter of law, that there is no possible factual or legal basis on which the insurer might eventually be obligated to indemnify him under any provision contained in the policy (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875, 876). Manifestly, Commercial Union cannot do so at this stage of the proceedings before several factual issues are resolved as to the making of the defamatory statements, the dates when they were made, whether the declarant was acting on behalf of the corporation when he made them and whether the prepolicy statements were the same as or similar to those made after March 1, 1980.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

On appeal by defendant: Appeal dismissed, without costs.

On appeal by plaintiff Lederer: Order insofar as appealed from reversed, with costs, and partial summary judgment granted in favor of plaintiff Lederer in accordance with the memorandum herein.


text:
    Robert Kaplan et al., Appellants, v Anthony Manoli, Respondent.
    Decided February 12, 1985

      APPEARANCES OF COUNSEL

      Gerald J. Mondora and David S. Gould for appellants.

      Steven C. Mandell for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (100 AD2d 928; see also, Frerk v Mercy Hosp., 99 AD2d 504, affd 63 NY2d 635).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander. Judges Jasen and Meyer on constraint of Parker v Mack (61 NY2d 114).


text:
    The People of the State of New York, Appellant, v Thomas Edward Greene, Respondent.
    Decided February 12, 1985

      APPEARANCES OF COUNSEL

      William V. Grady, District Attorney (Bridget Rahilly Steller of counsel), for appellant.

      Martin A. Charwat for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed. The Appellate Division’s disposition was predicated upon a factual determination concerning the fruits of an illegal arrest (see, People v King, 61 NY2d 969). Because the determination was not “upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]), an appeal to this court does not lie.


text:
    Muriel Winegrad et al., Appellants, v New York University Medical Center, Defendant, and Joseph Jacobs et al., Respondents.
    Decided February 12, 1985

      APPEARANCES OF COUNSEL

      Abraham, A. Salm for appellants.

      Martin Wendel for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the individual defendants’ cross motion for summary judgment denied, and the case remitted to the Appellate Division for consideration of issues not reached on the appeal to that court.

In this action to recover damages for medical malpractice, plaintiffs in a verified complaint and bill of particulars alleged that defendant Jacobs failed to check Mrs. Winegrad’s medical history before undertaking to perform surgery on the tissues surrounding her eyes, and allowed administration of anesthesia without checking this history; that during the course of this minor surgery she went into shock and developed cardiac arrhythmia; that defendants Ross and Pasternack treated her and administered drugs for a blood clot and heart condition which were unnecessary and actually were incompatible with her condition; and that defendant Jacobs wrongfully left the surgery incomplete after representing to her that it had been completed.

In response to plaintiffs’ motion to direct that defendants’ answers be stricken on account of their failure to appear for depositions, defendants sought summary judgment, tendering in support of their cross motion only the brief affidavit of each asserting that the pertinent medical records had been reviewed. Each affidavit further contained the following identical paragraph: “I now state with a reasonable degree of medical certainty that I did not deviate from good and accepted medical practices in my treatment of plaintiff, nor did anything I do [sic] or allegedly failed to do proximately cause the plaintiff’s alleged injuries. Therefore, I should not have been named as a defendant in the above-entitled action.” Defendant Jacobs, in addition, acknowledged that he had attempted to perform a blepharoplasty on plaintiff, which was not completed since she developed cardiac arrhythmia. In opposition to the cross motion, plaintiffs submitted only their counsel’s affidavit complaining of defendants’ failure to appear for depositions. Special Term granted plaintiffs’ requested relief and denied the cross motion for summary judgment; the Appellate Division reversed and dismissed the complaint.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649; Greenberg v Manlon Realty, 43 AD2d 968, 969).

In the appeal before us, plaintiffs have in verified pleadings described certain injuries purportedly caused by the negligence of defendants, and defendant Jacobs has acknowledged that at least in some part the alleged injury actually occurred. On this record, the bare conclusory assertions echoed by all three defendants that they did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle defendants to summary judgment (CPLR 3212 [b]; cf. Neuman v Greenstein, 99 AD2d 1018, and Pan v Coburn, 95 AD2d 670). Defendants’ cross motion for summary judgment should therefore have been denied.

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

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


text:
    Anthony B. Cataldo, Appellant, v Catherine A. Everett, Respondent.
    Submitted January 22, 1985;
    decided February 12, 1985
   Motion for leave to appeal and, on the court’s own motion, appeal taken as of right dismissed, without costs, each upon the ground that this court does not have jurisdiction to entertain the motion or the appeal (NY Const, art VI, § 3).


text:
    James Conforti, Jr., Appellant, v Agnes Goldberg, Respondent.
    Submitted February 6, 1985;
    decided February 12, 1985
   Motion for leave to appeal dismissed upon the ground that this court does not have jurisdiction to entertain the motion (NY Const, art VI, § 3 [b] [7]).

Judge Alexander taking no part.


text:
    Vincent Heinlein, as Executor of Carl E. Bartels, Deceased, Respondent, v Maurice T. Greene et al., Appellants, et al., Defendants. Hal J. Greene et al., Appellants.
    Submitted January 14, 1985;
    decided February 12, 1985
   Motion by defendants mortgagors for leave to appeal denied.

Motion by proposed intervenors for leave to appeal dismissed upon the ground that the order of the Appellate Division sought to be appealed from, insofar as it affirmed the denial of intervention, does not finally determine the action within the meaning of the Constitution.


text:
    Julius Strauss, Appellant, v Belle Realty Company, Defendant, and Consolidated Edison Company of New York, Inc., Respondent.
    Argued February 6, 1985;
    reargument ordered February 12, 1985
   Reargument ordered and case set down for oral argument on May 1, 1985.


text:
    The People of the State of New York, Respondent, v Little Luke Roberts, Also Known as Luke Arrington, Appellant.
    Decided February 14, 1985

      APPEARANCES OF COUNSEL

      Michael J. Hutter for appellant.

      Sol Greenberg, District Attorney (Renée Z. Farnham of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum of the Appellate Division (103 AD2d 975).

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


text:
    Jean Murphy, Appellant, v Board of Education of North Bellmore Union Free School District, Respondent.
    Decided February 14, 1985

      APPEARANCES OF COUNSEL

      James R. Sandner and Noel D. Cohen for appellant.

      William H. Englander for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (104 AD2d 796).

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


text:
    The People of the State of New York, Respondent, v Pedro Claudio, Appellant.
    Decided February 14, 1985
    APPEARANCES OF COUNSEL

      David Steinberg for appellant.

      William V. Grady, District Attorney (Joan H. McCarthy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that his warrantless arrest in a public place was invalid because felony complaints charging him with the crimes for which he was arrested had already been filed has not been preserved for review by any argument or objection made in a written motion or at the suppression hearing. The additional claim with respect to County Court’s ruling on defendant’s Sandoval application was not preserved and, therefore, does not present an issue reviewable by this court (see, People v Shields, 46 NY2d 764, 765). Finally, the argument that defendant’s guilty plea should not have been accepted is also not preserved for appellate review because defendant neither moved to withdraw the plea before sentencing nor raised the issue by a motion to vacate the judgment of conviction (People v Bell, 47 NY2d 839, 840).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

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


text:
    Diana Morell et al., Appellants, v Peekskill Ranch, Inc., Respondent.
    Decided February 14, 1985

      APPEARANCES OF COUNSEL

      Martin S. Rothman for appellants.

      Nathan Cyperstein and Steve S. Efron for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and a new trial granted for reasons stated in the dissenting memorandum by Justice Isaac Rubin at the Appellate Division (104 AD2d 492, 493-495).

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


text:
    In the Matter of John R. De Zimm, Appellant, v William G. Connelie, as Superintendent of the New York State Police, Respondent.
    Decided February 14, 1985

      APPEARANCES OF COUNSEL

      John R. De Zimm, appellant pro se.

      Robert Abrams, Attorney-General (John Q. Driscoll and Robert Hermann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, then involved in litigation against the State, requested disclosure pursuant to the Freedom of Information Law (Public Officers Law, art 6) of any State Police regulations concerning an officer’s duty to record conversations while wearing a monitoring device. The request was denied on the grounds that the materials were compiled for law enforcement purposes and would if disclosed reveal criminal investigative techniques and procedures, and that they were intra-agency materials (Public Officers Law § 87 [2] [e] [iv]; § 87 [2] [g] [ii]). Special Term, after an in camera inspection of all relevant materials, was of the view that article 13G of the Administrative Manual of the New York State Police should be disclosed, but the Appellate Division, which conducted its own in camera inspection, reached a different conclusion. The Appellate Division felt that the procedures contained in article 13G were not routine, and that revealing such information — particularly the special restrictions placed on State Police in addition to those imposed by law, as well as trade names and other details — could “allow miscreants to tailor their activities to evade detection.” (102 AD2d 668, 671.) The dissenting Justice felt that, with some modest pruning of information describing nonroutine procedures which could aid a suspect in evading detection, article 13G of the Manual should be disclosed.

The determinations made below regarding whether disclosures of particular sections of the Administrative Manual would reveal criminal investigative techniques and procedures plainly involved an application of the courts’ discretion to their inspection of the materials in dispute. Special Term reached one conclusion, which was challenged by respondent as an abuse of discretion, and the Appellate Division, vested with the same power and discretion as Special Term, reached another. As an exercise of discretion, the determination of the Appellate Division will be disturbed by this court only where there is an abuse of discretion as a matter of law — a contention not urged by petitioner here (see, Brady v Ottaway Newspapers, 63 NY2d 1031; see also, Matter of Von Bulow, 63 NY2d 221, 224; and Matter of Attorney-General v Katz, 55 NY2d 1015, 1017). We therefore affirm the Appellate Division order dismissing petitioner’s complaint.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, in a memorandum.


text:
    Peter S. Pappalardo, Respondent, v Westchester Rockland Newpapers, Inc., et al., Appellants.
    Decided February 14, 1985

      APPEARANCES OF COUNSEL

      Henry J. Smith for appellants.

      Louis A. Tirelli and Maureen McNamara for respondent, precluded.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 830). Question certified answered in the affirmative.

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


text:
    Betty O. Muka, Appellant, v Greene County, Respondent.
    Submitted January 28, 1985;
    decided February 14, 1985
   Motion to vacate the Court of Appeals order of dismissal dated January 14, 1985 denied. [See, 64 NY2d 776.]


text:
    Betty O. Muka, Appellant, v Hancock, Estabrook, Ryan, Shove & Hust, Respondents. (And Three Other Actions.)
    Submitted January 28, 1985;
    decided February 14, 1985
   Motion to vacate the Court of Appeals order of dismissal dated January 14, 1985 denied. [See, 64 NY2d 776.]


text:
    61 Jane Street Associates, Appellant, v Soll Kroll, Respondent.
    Submitted December 3, 1984;
    decided February 14, 1985
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that this court does not have jurisdiction to entertain it (NY Const, art VI, § 3 [b] [7]).

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


text:
    The People of the State of New York, Appellant, v Jorge Mayorga, Also Known as Carlos Martin, Respondent.
    Argued February 8, 1985;
    decided February 21, 1985

      APPEARANCES OF COUNSEL

      Denis Dillon, District Attorney (Denise Parillo and Anthony J. Girese of counsel), for appellant.

      Fred M. Schwartz for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

Our review of the opinion of the Appellate Division reveals that its conclusion, contrary to that of County Court, was that defendant’s last two statements were the result of such “ ‘continuous interrogation’ that the Miranda warnings subsequently administered ‘were insufficient to protect his rights’ ” and that there was no such “ ‘definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning’ ”. (100 AD2d, at p 854.)

Whether there has been an attenuating break in an interrogation is, as are most other determinations made in suppression matters which require the drawing of inferences from the facts, a mixed question of law and fact (cf. People v Harrison, 57 NY2d 470, 477-478; People v Karabinas, 63 NY2d 871; People v Albro, 52 NY2d 619, 623). Because the determination of the Appellate Division in this case was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]), this appeal does not lie.

Appeal dismissed in a memorandum.


text:
    In the Matter of Barbara C. John J. Sabatos, as Director of the Brooklyn Developmental Center, Respondent; Francis M. Savastano, as Director of the Mental Health Information Service, Appellant.
    Argued February 13, 1985;
    decided February 21, 1985

      APPEARANCES OF COUNSEL

      Dennis B. Feld for appellant.

      Robert Abrams, Attorney-General (Christopher Keith Hall, Peter Sherwood, Richard Rifkin, Thomas P. Dorsey and Robert L. Schonfeld of counsel), for respondent.
   OPINION OF THE COURT

Appeal dismissed, without costs, for mootness. The constitutional questions which are the only issues the appellant now presents to this court were not raised or preserved in the trial court. There is therefore no basis for this court to exercise its discretion to retain the appeal despite the mootness, when the issues tendered are not within the scope of our review. Unlike the Appellate Division which may reach and decide issues which are not properly preserved, this court is limited to reviewing questions of law.


text:
    The People of the State of New York, Respondent, v William Perez, Appellant.
    Decided February 21, 1985

      APPEARANCES OF COUNSEL

      Michael E. Lipson for appellant.

      Mario Merola, District Attorney (Stuart L. Sanders of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The evidence at trial, viewed in the light most favorable to the People, was sufficient for the jury to conclude that defendant intended to kill Martell when he fired the rifle through the locked wooden door to the back room of Martell’s social club. Defendant fired the shot almost immediately after Martell had pushed the rifle away from his chest and had slammed the door shut between them. The shot was fired at a height of approximately four feet, the same height as some vital bodily organs. As the defendant could have observed, the area immediately on the other side of the door was no wider than the doorway, and the jury thus could have found that defendant assumed that Martell was in the line of fire when he shot through the door. Additionally, defendant’s conduct just prior to the shooting supports a conclusion that he decided to kill Martell either to prevent him from turning defendant in for robbing a patron in the club or out of frustration for Martell not taking his attempt to rob the entire club seriously.

We have considered defendant’s other arguments and find them to be without merit.

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

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


text:
    Anya Sonders, Appellant, v William D. Roosevelt, Respondent.
    Decided February 21, 1985

      APPEARANCES OF COUNSEL

      Robin J. Suttenberg for appellant.

      John C. Maloney, Jr., and Edward J. Reilly for respondent.
   OPINION OF THE COURT

Memorandum.

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

In dismissing the third cause of action, Special Term did not err in treating it as an integral part of the lifetime support agreement alleged in the first cause of action. Although the third cause of action refers to “good consideration”, it specifically alleges that the agreement concerning the car was made “as part of the aforesaid contract” alleged in the first cause of action. With respect to the plaintiff’s contention that the tape recording should satisfy the Statute of Frauds, we note as did the majority at the Appellate Division, that it is not a memorandum in writing subscribed by the defendant as is required by the statute (General Obligations Law § 5-701 [a]).

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

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


text:
    In the Matter of Roxann Joyce M., a Child Alleged to be Permanently Neglected. Catholic Guardian Society of the Diocese of Brooklyn, Incorporated, et al., Respondents; Nicholas M., Appellant.
    Decided February 21, 1985

      APPEARANCES OF COUNSEL

      Edwin Ira Schulman for appellant.

      Richard J. Cea for Catholic Guardian Society of the Diocese of Brooklyn, Incorporated, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Sara P. Schechter of counsel), for New York City Commissioner of Social Services, respondent.

      Lenore Gittis, Law Guardian, and Burt Gray man for Roxann Joyce M.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the appeal from the Appellate Division order dated October 1, 1984 does not lie pursuant to CPLR 5601 (d) to review the prior nonfinal Appellate Division order dated May 19, 1980, which has been previously reviewed by this court.


text:
    In the Matter of Carl J. Licata et al., Doing Business as Jiffy Mart, Respondents, v Roderick Chu et al., Constituting the State Tax Commission, Appellants.
    Decided February 21, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow and Robert Hermann of counsel), for appellants.

      Gary M. Kanaley for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed and the determination of the State Tax Commission reinstated, with costs.

Petitioners’ sales tax records have as their source cash register tapes which show only total sales and sales tax collected by categories, although the tape given the customer itemized each transaction. Because respondent’s auditor could not determine from the tapes available whether tax had been charged on all taxable items and whether the proper tax had been charged in each instance, the auditor’s use of a test period and markup audit to estimate the tax due from petitioners was neither arbitrary nor without rational basis (Tax Law § 1138 [a] [1]; Matter of Markowitz v State Tax Commn., 54 AD2d 1023, affd 44 NY2d 684).

Petitioners also challenge the accuracy of the test audit because, they contend, a sufficient margin was not allowed for employee purchases, theft, waste and “loss leaders.” On that issue, however, the burden of proof was on petitioners (Matter of Petroleum Sales & Serv. v Bouchard, 64 NY2d 671, affg 98 AD2d 882), and they presented neither direct proof of such losses nor expert testimony establishing the extent of such losses regularly occurring in the industry.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in memorandum.

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


text:
    In the Matter of Twin Coast Newspapers, Inc., Appellant, v State Tax Commission, Respondent.
    Argued February 8, 1985;
    decided February 21, 1985

      APPEARANCES OF COUNSEL

      Claude E. Johnston, Garett J. Albert, William L. Burke and Lisa Norton for appellant.

      Robert Abrams, Attorney-General (Francis V. Dow, Robert Hermann and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs.

Petitioner appeals from an Appellate Division order confirming a determination of the State Tax Commissioner that its “EXIT” and “ISIS” reports — computer printouts setting forth for each subscriber individually relevant statistics compiled from publications — are not “newspapers” exempt from sales and use taxes under Tax Law § 1115 (a) (5). The purported jurisdictional basis for this appeal is that a substantial constitutional question is directly involved (see, CPLR 5601 [b] [1]) in that the imposition of sales and use taxes on “EXIT” and “ISIS”, which petitioner urges are newspapers, violates its 1st Amendment rights. If the reports were in fact newspapers entitled to constitutional protection, they would under the statute automatically be exempt from the tax. Since a question of statutory interpretation would be dispositive, this appeal must be dismissed (Cohen and Karger, Powers of the New York State Court of Appeals § 59, at 266-68 [rev ed]; see also, Matter of Rueff, 273 NY 530).

Appeal dismissed, without costs, in a memorandum.


text:
    Stanley Axelrod et al., Appellants, v Anthony Gliedman, Individually and as Commissioner of the Department of Housing Preservation and Development of the City of New York, et al., Respondents. Dayton Towers, Respondent, v Milton Fishkin, Appellant.
    Decided February 21, 1985

      APPEARANCES OF COUNSEL

      David N. Stein and Frederic A. Johnson for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis of counsel), for Anthony Gliedman, as Commissioner of the Department of Housing Preservation and Development of the City of New York, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal by respondent Milton Fishkin dismissed, without costs, upon the ground that the order of the Appellate Division, insofar as it pertains to him does not finally determine the proceeding within the meaning of the Constitution; order insofar as appealed from by plaintiff Axelrod et al. affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (104 AD2d 327).

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


text:
    In the Matter of Lycourgos Papadakis, Appellant, v Stanley Brezenoff, Individually and as President of the New York City Health and Hospitals Corporation, Respondent.
    Decided February 21, 1985

      APPEARANCES OF COUNSEL

      Sanford S. Kantor for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Elissa Hutner of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (103 AD2d 704).

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


text:
    Prasad Chalasani, Respondent, v Carl Neuman, Doing Business as Lydia E. Hall Hospital, Appellant.
    Submitted February 8, 1985;
    decided February 21, 1985

      APPEARANCES OF COUNSEL

      Morris Ehrlich and Preston A. Leschins for appellant.

      Ronald J. Berk for respondent.

      Taylor R. Briggs, Thomas G. Rohback and Donald Moy for Medical Society of the State of New York, amicus curiae.

   OPINION OF THE COURT

Order reversed, without costs, and case remitted to Supreme Court, Nassau County, with directions to amend its disposition by dismissing the original complaint for mootness. The issues involving the original complaint are moot because Special Term has granted plaintiff’s motion to amend the complaint. The merits not having been passed upon by this court, the question certified is not answered.

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


text:
    Manty Benjamin, Appellant, v Kenneth Benjamin et al., Respondents.
    Submitted January 22, 1985;
    decided February 21, 1985
   Motion to dismiss the appeal denied. Motion to prosecute the appeal as a poor person granted. Motion for a stay granted: Pending determination of the appeal, enforcement of the order of the Appellate Division is stayed; Manhattan Life Insurance Company of New York is directed to make all payments on annuity contract No. P6P 203-86 issued April 27,1982 into the account maintained in the name of Kenneth Benjamin and Theresa Mohammed with Norman E. Frowley as escrowee, at the First Federal Savings and Loan Association, and distribution of any moneys from said account is stayed.


text:
    In the Matter of Harold Brady, Appellant, v Mario M. Cuomo, as Governor of New York State, et al., Respondents.
    Decided February 21, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine an action or proceeding within the meaning of the Constitution (see, Cohen and Karger, Powers of the New York Court of Appeals § 36 [rev ed]).


text:
    Lorraine Campbell, Appellant, v JSB Realty Company et al., Respondents.
    Decided February 21, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the court does not have the jurisdiction to entertain the appeal (NY Const, art VI, § 3; CPLR 5601).


text:
    Elmwood-Utica Houses, Inc., Respondent-Appellant, v Buffalo Sewer Authority, Appellant-Respondent, and Diocese of Buffalo et al., Intervenors-Appellants.
    Submitted February 11, 1985;
    decided February 21, 1985
   Motion by defendant Buffalo Sewer Authority and intervenors The Diocese of Buffalo, N. Y., Council of Churches, and the Buffalo City Cemetery, Inc., for reconsideration of this court’s order of dismissal dated December 27, 1984 denied. Motion by intervenors for leave to appeal granted. On the court’s own motion, leave to appeal granted to defendant Buffalo Sewer Authority. [See, 64 NY2d 753.]


text:
    Flintkote Company, Respondent, v American Mutual Liability Insurance Company et al., Appellants. (Action No. 1.) American Mutual Liability Insurance Company, Appellant, v Flintkote Company, Respondent, and Liberty Mutual Insurance Company et al., Appellants. (Action No. 2.)
    Submitted January 7, 1985;
    decided February 21, 1985
   Motion to dismiss the appeals taken in action number one denied. Motion to dismiss the appeals taken in action number two granted and those appeals 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.

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Walter Handlin et al., Respondents, and Peter Mataxes, Appellant-Respondent, v Renato Burkhart et al., Respondents-Appellants.
    Submitted February 11, 1985;
    decided February 21, 1985
   Motion by defendants for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and is not the type of nonfinal order which comes within the meaning of CPLR 5602 (a) (2).


text:
    Lawrence Kugel, Individually and as Administrator of the Estate of Stephanie Kugel, et al., Appellants, v Mid-Westchester Industrial Park Inc. et al., Respondents.
    Submitted January 28, 1985;
    decided February 21, 1985
   Motion for revision or clarification of the decretal paragraph of this court’s opinion denied. Motion for a stay pending determination of this application dismissed as academic. [See, 61 NY2d 219.]


text:
    In the Matter of William Ronson, Appellant, v Commissioner of Correction of the State of New York et al., Respondents.
    Decided February 21, 1985
   Appeal from Appellate Division order dated November 30, 1984 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Appeal from Supreme Court order dated January 9, 1985 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the appeal does not lie under CPLR 5601 (b) (2) because it involves questions other than the constitutional validity of a statutory provision.


text:
    Norman Schreiber et al., as Assignees of Schreiber Buick, Inc., Respondents, v Dick Voight Buick, Inc., Appellant.
    Submitted February 11, 1985;
    decided February 21, 1985
   Motion to dismiss appeal denied as unnecessary. This court’s November 15, 1984 conditional order of dismissal is still effective because service on appellant of that order with notice of entry was effected on January 24, 1985.


text:
    In the Matter of the City of Syracuse et al., Appellants, v State Board of Equalization and Assessment, Respondent.
    Argued February 4, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Marshall G. Kaplan, Andrew S. Fisher and Ellen M. Levanti for appellants.

      Robert Abrams, Attorney-General (John Q. Driscoll and Robert Hermann of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. We affirm for the reasons stated in the memorandum at the Appellate Division (101 AD2d 653) and agree with that court that the method used in calculating the equalization rate was rational and the rate fixed was supported by substantial evidence.

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


text:
    In the Matter of the Claim of Liduvina Torres, Respondent, v Laurel Hill Nursery et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued February 7, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Thomas J. Spargo and Raymond C. Green for appellants.

      Robert Abrams, Attorney-General (Morris N. Lissauer, Robert Hermann, Carlin Meyer and Theresa E. Wolinski of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (98 AD2d ,904).

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


text:
    Susan Richardson, Respondent, v Norman Orentreich et al., Doing Business as Orentreich Medical Group, et al., Defendants, and Michael J. Kalman, Appellant.
    Argued January 7, 1985;
    decided February 12, 1985

      APPEARANCES OF COUNSEL

      Sean F.X. Dugan and Jeff J. Lawton for appellant.

      Alfred S. Julien and David B. Turret for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff first came under defendant’s medical care in January 1973 and received periodic treatments through October 8, 1974, the date of her last visit to his office. At that time, plaintiff was given an appointment for December 4, 1974, which, however, she failed to keep. The appointment was never rescheduled and defendant did not have any further contact with plaintiff.

This action was commenced on November 30, 1977. Plaintiff sought to recover for personal injuries suffered as a result of medical care and treatment administered by defendant during the period from August 1973 through December 1974. Defendant moved for summary judgment on the ground that the action was barred by the three-year Statute of Limitations contained in CPLR 214. In support of the motion, defendant asserted that he “last rendered any medical care, treatment, or diagnosis to this plaintiff on October 8,1974”, and that plaintiff “was given an appointment for December 4, 1974” which she “failed to keep”. During deposition, defendant stated that the October 8 appointment was the last time he saw plaintiff and that he never spoke with her thereafter. Consequently, defendant argued that the Statute of Limitations commenced to run on October 8, 1974 and had expired by the time this action was commenced on November 30,1977, more than three years later.

In opposition to the motion, plaintiff contended that she remained under the continuous care and treatment of defendant after the October 8 visit when she was told to return on December 4, and that she canceled the latter appointment because she was bedridden with illness.

Special Term denied summary judgment on the ground that the papers did not resolve the issue whether defendant’s treatment of plaintiff in fact terminated on plaintiff’s last visit. The Appellate Division unanimously affirmed, holding that factual questions were presented whether defendant’s medical services constituted a continuous course of treatment and whether plaintiff had decided to terminate the physician-patient relationship prior to the canceled appointment. We now hold that defendant’s motion for summary judgment was properly denied but that defendant has raised no factual questions whose resolution would sustain the Statute of Limitations defense and which require a trial on this issue.

Under CPLR 214, the three-year Statute of Limitations for medical malpractice does not commence to run until the continuous course of care or treatment has terminated. (Borgia v City of New York, 12 NY2d 151, 155.) The “continuing trust and confidence” which underlies the “continuous treatment doctrine” (Coyne v Bersani, 61 NY2d 939, 940) does not necessarily come to an end upon a patient’s last personal visit with his or her physician (see, McDermott v Torre, 56 NY2d 399,406), when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past. (Compare, Davis v City of New York, 38 NY2d 257.) Thus, a patient remains under the “continuous treatment or care” of a physician between the time of the last visit and the next scheduled one where the latter’s purpose is to administer ongoing corrective efforts for the same or a related condition. Regardless of the absence of physical or personal contact between them in the interim, where the physician and patient reasonably intend the patient’s uninterrupted reliance upon the physician’s observation, directions, concern, and responsibility for overseeing the patient’s progress, the requirement for continuous care and treatment for the purpose of the Statute of Limitations is certainly satisfied. “It would be absurd to require a wronged patient to interrupt corrective efforts” by deeming treatment to be considered terminated in between scheduled appointments. (Borgia v City of New York, supra, at p 156.)

Here, it cannot be said that defendant’s treatment and care of plaintiff terminated on October 8,1974 merely because that was the date of plaintiff’s last visit. On this motion for summary judgment, defendant does not raise any factual issues as to any action or conduct of either party between the last appointment and the canceled one which might have ended defendant’s course of care for plaintiff. Defendant merely argues that his treatment of plaintiff necessarily came to an end with the October 8,1974 appointment because it was the last time he saw her. In light of the parties having scheduled a future appointment for further treatment on December 4, 1974, and their undisputed intention at the time that defendant’s care of plaintiff continue at least until that date, defendant’s argument that the continuous course of treatment ended on October 8, 1974 must fail, and the denial of his motion for summary judgment must be affirmed.

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

Order affirmed, etc.

       The special two and one-half year Statute of Limitations contained in CPLR 214-a is applicable only to medical malpractice occurring on or after its effective date of July 1, 1975 (L 1975, ch 109, § 37) and, therefore, does not govern this case.


author: Kaye, J.

text:
    Guy Graff, Doing Business as South Fork Realty, Appellant, v Marvin Billet, Respondent.
    Argued January 9, 1985;
    decided February 14, 1985

      APPEARANCES OF COUNSEL

      Stephen R. Angel for appellant.

      Michael J. Kopcsak for respondent.

      John T. DeGraff, Jr., Michael T. Wallender and Nancy L. Girard for New York State Association of Realtors, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for reasons stated in that court’s Per Curiam opinion. We would only note the following.

The dissent relies upon the rule that where the sale fails due to the seller’s fault or default, a broker is entitled to-the commission unless the parties clearly intend otherwise. Their reliance is misplaced. The rule is inapplicable where, as here, the brokerage agreement explicitly provides that the commission is due when “title passes”, not merely when the broker has obtained a prospective buyer. In light of such a provision, the rule would apply only if the seller and the broker’s prospective buyer had already entered a sales contract, and the seller’s “fault” or “default”, within the meaning of the rule, would have reference solely to a breach of that sales contract. Indeed, such were precisely, the circumstances in the cases adverted to by the dissent in support of the rule. (See, Colvin v Post Mtge. & Land Co., 225 NY 510, 515-516; see also, the additional cases on point cited in 2 NY PJI 935-936 to which the dissent refers: Levy v Lacey, 22 NY2d 271, 273-274; Stern v Gepo Realty Corp., 289 NY 274, 276-277.) Here, there was no executed sales contract to be breached, and the seller’s mere refusal to enter into one with the broker’s prospective buyer is not a “fault” or “default” of the seller in the absence of any specific commitment by the seller in the brokerage agreement to enter into the sales contract.

A fortiori this conclusion is unavoidable under the well-settled maxim of contra proferentem. If there is any doubt or uncertainty as to the meaning of the disputed language in the brokerage agreement, all ambiguity must be resolved against the broker who prepared it. (See, 151 West Assoc. v Printsiples Fabric Corp., 61 NY2d 732, 734; United States v Seckinger; 397 US 203,216.) Here, the brokerage agreement does not define the phrase “willful default on the part of the seller”, but leaves it fairly susceptible, on its face, to different interpretations. Under these circumstances, the terms should be construed against the broker and, thereby,, limited in their application to seller’s nonperformance of an executed sales contract.

Kaye, J.

(dissenting). The Appellate Division’s decision, reached entirely as a matter of law, upholds the right of a seller (defendant) offered a better price to escape payment of a fee to a real estate broker (plaintiff) who has produced a buyer ready, willing and able to purchase the property on the seller’s terms. In defendant’s words: “Marvin Billet testified (and the trial court and Appellate Division both found) that he did not enter into the proposed contract of sale with Mr. Steinberg so that he could accept Mr. Little’s better offer.”

The parties to a brokerage contract may of course fashion their own agreement, and if their agreement plainly contemplated such a result there would be no occasion to dissent. But the brokerage agreement in issue does not plainly provide for, or require, the" unpalatable result that a party by his own willful, unjustified act of withholding his signature from a contract for the sale of the property on his terms may defeat the broker’s right to a commission.

The brokerage agreement entered into by plaintiff and defendant provides, in relevant part: “The aforesaid commission is due and payable to the above named licensed broker as, if and when title passes [rider omitted], except for willful default on the part of the seller, in which case the commission shall" be payable upon demand after said default.” We are informed that such a clause is standard in brokerage agreements in this State.

In the view of the Appellate Division (now the view of this court) “willful default” can be read only to mean a formal contract default, thereby permitting the seller to avoid any obligation to the broker until there is a signed contract of sale for the property. We believe, with Justice Lazer, that it is “immaterial whether the seller’s repudiation of the transaction with the buyer occurred before or after execution of the contract of sale, for a seller is in default if his willful refusal to consummate a sale prevents the fulfillment of the condition precedent to payment of the brokerage commission” (101 AD2d, at p 358). The controverted clause seems only a shorthand expression of established principles articulated in the Restatement (Second) of Agency § 445 comment e: “the principal’s promise to pay a commission becomes binding upon the production by the broker of a customer ready, willing and able to consummate the transaction on the specified terms. This promise, although now binding, does not call for performance unless there has been a fulfillment of the further condition, either that such customer shall make a contract enforceable against him, or that the conveyance shall be consummated, except that if the principal is responsible for the nonperformance of such condition, it is dispensed with and the promise to pay the commission becomes unconditional.”

To construe the clause in question to refer only to default in closing title is to ignore case law holding the broker entitled to his commission upon producing a buyer ready, willing and able even though no contract of sale between buyer and purchaser is ever signed (Tannenbaum v Boehm, 202 NY 293; Mooney v Elder, 56 NY 238; Polo v Scheldt, 195 App Div 903; Neur v Jaffe, 179 App Div 37; Suydam v Healy, 93 App Div 396; see, Pfeiffer, New York Law of Real Estate Brokerage § 71), as well as case law to the effect that a brokerage agreement will not be construed to “agree that if the sale falls through because of the seller’s fault, he [the broker] shall be entitled to nothing * * * unless such a result is clearly intended” (Colvin v Post Mtge. & Land Co., 225 NY 510, 516). Here the clause in question does not distinguish between a default prior to contract and one thereafter. A clause that simply excepts the seller’s willful default — without more — necessarily excepts not only a default in the closing of title but also a default in entering into a contract after the entire work of the broker has been done and he has become entitled to his commission (cf. Benenson Mgt. Co. v Banner Holding Corp., 13 AD2d 929). We disagree with the perception of the majority that the clause is “fairly susceptible, on its face, to different interpretations”: in the context of this agreement a default is a default, whether it occurs before or after a signed contract.

Permitting the seller unilaterally to defeat the broker’s right to a commission by withholding his signature from a perfectly acceptable contract of sale contravenes the fundamental proposition — rooted in considerations of fairness and justice — that a party cannot take advantage of a failure of a condition precedent caused by his own conduct (see, 5 Williston, Contracts § 677 [3d ed]; see also, Wagner v Derecktor, 306 NY 386,391). Unless such a result is dictated by clear contract terms so providing (see, Colvin v Post Mtge. & Land Co., 225 NY 510, 516, supra; and 2 NY PJI 935-936) — and such terms are not present here — payment to the broker should be required. Where the effect would be to promote what has long been recognized in the law as an unreasonable and inequitable result (see, eg., Young v Hunter, 6 NY 203, 207), resort should not be had to the secondary contract interpretation principle of resolving a perceived ambiguity against the drafter.

Chief Judge Wachtler and Judges Jasen, Simons and Alexander concur; Judge Kaye dissents and votes to reverse in an opinion in which Judge Meyer concurs.

Order affirmed, with costs, in a memorandum.


text:
    Kel Management Corp. et al., Respondents, v Rogers & Wells, Appellant.
    Decided February 7, 1985

      APPEARANCES OF COUNSEL

      Bruce E. Braverman and Leo P. Larkin, Jr., for appellant.

      Sylvester J. Garamella and Vincent P. Rao for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the motion to dismiss the complaint granted unconditionally.

This court has previously held that a party opposing a CPLR 3012 (b) motion to dismiss based upon law office failure is obligated to submit an affidavit of merit containing evidentiary facts sufficient to establish a prima facie case. (Canter v Mulnick, 60 NY2d 689.) Here, plaintiffs served the complaint upon defendant more than three and one-half months past the statutorily required date, and when faced with a CPLR 3012 (b) motion to dismiss, failed to submit an affidavit of merit. Because of this deficiency, it was error, as a matter of law, not to grant the motion to dismiss without condition. (Stolowitz v Mount Sinai Hosp., 60 NY2d 685, 686; Amodeo v Radler, 59 NY2d 1001; Barasch v Micucci, 49 NY2d 594, 599.) In view of this disposition, we express no view as to the merits of either plaintiffs’ underlying claim or proffered justifications for belated service of its complaint.

Question certified answered in the negative.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in memorandum.

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


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    The People of the State of New York, Respondent, v William Unroch, Appellant.
    Argued February 4, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Bernard I. Raizner for appellant.

      Mario Merola, District Attorney (Richard P. Marin, Billie Manning and Stuart C. Sanders of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted for attempted grand larceny in the second degree and several counts of presenting a false insurance claim. The only charges submitted to the jury, however, were attempted grand larceny in the second degree and, as a lesser included offense, attempted grand larceny in the third degree. Moreover, the Trial Judge instructed the jury that defendant Unroch could be found guilty of attempted grand larceny in the second degree if acting in concert with the codefendant he attempted to steal property valued at more than $1,500 from the insurance carrier, but that he could be found guilty of attempted grand larceny in the third degree if he (Unroch), acting alone, attempted to steal property valued at more than $250.

On the evidence presented the distinction drawn in the Judge’s instructions to the jury was correct for unless defendant and the codefendant had acted in concert the amount involved could not have been found to total at least $1,500. The jury having found defendant and his codefendant guilty only of attempted third degree grand larceny, it is clear that they did not find that defendant and his codefendant acted in concert.

Against that background the errors argued by defendant afford no basis for reversal. The informant’s unresponsive answer concerning a bribe offer by defendant’s partner was not objected to by defendant and the Trial Judge instructed the jury that the testimony could be considered only with respect to the partner’s credibility. Denial of defendant’s mistrial motion, therefore, was not error.

The admission of testimony concerning a prior 1978 insurance fraud involving defendant and .codefendant, offered to show that they were acting in concert and on the issue of intent, if erroneous, was nevertheless harmless. The jury’s verdict establishes that they did not find defendant and codefendant to have been acting in concert, and as to intent, defendant’s statements during tape-recorded conversation leave no doubt. For like reasons denial of defendant’s motion for severance made shortly before trial, if error, was harmless, severance having been requested so that the codefendant could testify that defendant was not involved in any of the claims the codefendant submitted.

The more difficult issue concerns the Trial Judge’s denial of defendant’s application for the transcript of the in camera examination of the informant concerning his midtrial meeting with the codefendant. That testimony may have convinced the jury that the informant lied when he testified during trial that he had no thought in his mind to get money from either of the defendants, whereas his in camera testimony was that he thought that might be a possibility. In the usual situation it would be the obligation of the prosecutor to bring such a discrepancy in testimony to the attention of the court (People v Savvides, 1 NY2d 554), but here it was already known to the Trial Judge through the in camera hearing. The Trial Judge should have released so much of the in camera minutes as related to the informant’s answer, but for several reasons we conclude that his failure to do so did not result in an unfair trial. The in camera hearing, which was not objected to by either defendant, was held for the purpose of determining whether the prosecutor would be permitted to introduce testimony concerning the midtrial meeting between the informant and the codefendant and resulted in a ruling excluding that testimony. Having prevented the prosecutor from going into the meeting in his questioning, the Trial Judge apparently concluded on balance that the discrepancy between courtroom answer and in camera testimony was too slight and the tactical advantage denied the prosecutor too prejudicial under the circumstances to warrant introduction of the in camera question and answer. Under those circumstances and bearing in mind the strong evidence against defendant in the form of his own taped admissions, the extreme weakness of the informant’s credibility as a result of other impeaching evidence introduced, and the evident discrediting of his testimony indicated by the jury’s refusal to find that defendant and codefendant acted in concert, we conclude that the error involved in the Trial Judge’s refusal to release the transcript did not result in an unfair trial (cf. People v Fein, 18 NY2d 162, 173-175) and does not require reversal.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed in a memorandum.


text:
    Albert Saggese, Inc., and Anthony Rivara Construction Co., Inc., a Joint Venture, Respondent-Appellant, v Town of Hempstead, Respondent. Town of Hempstead, Third-Party Plaintiff-Respondent, v Royal Indemnity Company, Third-Party Defendant-Appellant-Respondent. Royal Indemnity Company, Fourth-Party Plaintiff-Appellant-Respondent, v Albert Saggese, Inc., and Anthony Rivara Construction Co., Inc., a Joint Venture, Fourth-Party Defendants-Respondents-Appellants.
    Argued February 6, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Irving B. Lampert for Albert Saggese, Inc., and Anthony Rivara Contracting Co., Inc., a joint venture, respondent-appellant.

      Edward Alan Shure for Royal Indemnity Company, appellant-respondent.

      Gary M. Schwartz, Arthur W. Jaspan and A. Thomas Levin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by providing that, on its second cause of action against the joint venture and its third counterclaim against the town, Royal shall have judgment against the town in the amount of $54,060 and payment of that amount to Royal shall extinguish the town’s obligation on the award of judgment in that reduced amount to the joint venture and, as so modified, order affirmed, with costs to the town against the joint venture and Royal. The weight of the evidence comports with the conclusion that the items claimed as extras, other than the additional pile lengths, resulted from plaintiff’s failure adequately to gauge the cost of performance or from changes made as an accommodation to plaintiff and at its request rather than as a result of mutual mistake or of any fundamental change in the contract ordered by the town or its engineer. Modification is, however, required because the surety, as assignee of mechanic’s lienors paid by it on plaintiff’s behalf, rather than the plaintiff, is entitled to such moneys as may be due from the town.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to the town against the joint venture and Royal.


text:
    Thomas V. Foitl, Appellant, v G.A.F. Corporation, Respondent, et al., Defendant.
    Argued February 7, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Steven DiJoseph and Peter E. DeBlasio for appellant.

      Michael W. Appelbaum for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff does not argue before us that on the papers before the courts below summary judgment was improperly granted. Rather he contends that Special Term abused its discretion as a matter of law by refusing to consider an affidavit of plaintiff which was delivered to the Judge’s law secretary on the same day as, but several hours after, the motion was marked “submitted” on call of the calendar, because, it is argued, it had been inadvertently omitted from plaintiff’s papers. Defendant’s office did not receive a copy of the affidavit until the following day and, as plaintiff concedes, promptly objected to its being considered, while asking that, if the court decided to consider it, defendant be given the opportunity to reply.

It is clear from the papers that the inadvertence involved was in failing to realize the necessity for an affidavit from the party, rather than the party’s attorney (see, Zuckerman v City of New York, 49 NY2d 557), not in failing to enclose with the submitted papers an affidavit previously prepared for that purpose. The affirmation of plaintiff’s attorney in opposition to defendant’s motion was dated some three weeks in advance of the return date and although it attached and referred to a number of other papers, contained no reference to an affidavit from plaintiff. The notice of plaintiff’s cross motion for summary judgment dated six days before the return date of defendant’s motion makes no reference to an affidavit from plaintiff. In light of those facts and the fact that defendant’s notice of motion, served over a month before the date on which the motion and cross motion were submitted, contained a CPLR 2214 (b) notice requiring service of answering papers at least five days prior to the return date, Special Term’s refusal to consider plaintiff’s affidavit involved no abuse of discretion.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Antonio Bora, Appellant.
    Argued February 13, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Philip I. Beane for appellant.

      Robert M. Morgenthau, District Attorney (George M. Dentes and Joyce P. Adolfsen of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. The issues raised are not preserved for review or are without merit.

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


text:
    The People of the State of New York, Appellant, v James S. Peet, Respondent.
    Argued February 4, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      James T. Hayden, District Attorney, for appellant.

      Samuel J. Castellino, Public Defender (Joseph J. Balok, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum of the Appellate Division (101 AD2d 656; see also, People v Cicciari, 107 Misc 2d 733).

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


text:
    Arnell Construction Corp., Appellant, v Village of North Tarrytown, Respondent.
    Argued February 5, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Lester M.A. Gulitz and Roy A. Heimlich for appellant.

      Yvonne R. Cort and Robert J. Ciovacco for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (100 AD2d 562).

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


text:
    In the Matter of Janet Jones, Appellant, v Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued February 8, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Gregg A. Thomas for appellant.

      Robert Abrams, Attorney-General (Clifford A. Royael and Robert Hermann of counsel), for Barbara Blum, as Commissioner of the New York State Department of Social Services, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the opinion by Justice Leonard A. Weiss at the Appellate Division (101 AD2d 330).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander. „


text:
    NFS Services, Inc., Appellant, v West 73rd Street Associates et al., Respondents.
    Argued February 11, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Robert J. Poulson for appellant.

      Norman L. Rosenthal for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Bentley Kassal at the Appellate Division (102 AD2d 388) to which we add only that plaintiff’s attempt in this court to characterize the services it rendered as outside the scope of Real Property Law § 442-d is inconsistent with the allegation in its amended complaint that it earned its claimed commission by “procuring a purchaser for the Property”.

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


text:
    In the Matter of Alscot Investing Corp., Petitioner, v Incorporated Village of Rockville Centre, Respondent. (Proceeding No. 1.) In the Matter of Alscot Investing Corp., Appellant, v Board of Trustees of the Incorporated Village of Rockville Centre et al., Respondents. (Proceeding No. 2.)
    Argued February 4, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL
    A. Thomas Levin for appellant.

      James J. Seward for respondents.
   OPINION OF THE COURT

Memorandum.

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

In anticipation of forthcoming amendments to chapter 104 of the Village Code, a local law governing display signs, respondents imposed a partial moratorium on the issuance of sign permits. Subsequently, petitioner applied for permission to construct a roof sign, the plans for which satisfied the requirements of chapter 104 as it then existed. Respondents having failed to act on the application for six weeks, petitioner commenced this article 78 proceeding seeking, among other relief, a declaration that the moratorium was invalid and an order directing respondents to issue the permit. Prior to entry of judgment, the amendment to chapter 104 became effective, under which petitioner’s proposed roof sign would not be permitted. Accepting petitioner’s argument that the amended law should not apply, Special Term directed the permit to issue. The Appellate Division reversed, perceiving no exception to the general rule that the law as it exists at the time a decision is rendered on appeal is controlling (99 AD2d 754), and we affirm that conclusion.

Absent here is the degree of detrimental reliance found in Matter of Temkin v Karagheuzoff (34 NY2d 324) or the extensive delays indicative of bad faith present in Matter of Pokoik v Silsdorf (40 NY2d 769) which could preclude reliance by respondents on the new law (see also, Matter of Faymor Dev. Co. v Board of Stds. & Appeals, 45 NY2d 560). Petitioner does not dispute the power of the village to impose a moratorium of this type, but challenges the procedure employed in its adoption. We do not reach the issue of validity of the enactment procedure because, under the circumstances of this case, even a defect in the procedure, without more, would not oblige a court to apply a law which has been superseded (compare, Matter of Temkin v Karagheuzoff, 34 NY2d 324, supra).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

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


text:
    In the Matter of Washington County Cease, Inc., et al., Respondents, v Richard A. Persico et al., Constituting the Industrial Hazardous Waste Facility Siting Board, et al., Appellants.
    Argued February 5, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis J. Keehan, Peter H. Schiff and James A. Sevinsky of counsel), for appellants.

      Joseph M. Walsh for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. For the reasons stated by the Appellate Division and Special Term regarding the statutory waiver of sovereign immunity under ECL article 27, title 11, the certificate of environmental safety and public necessity was improperly granted because the proposed hazardous waste facility would violate a local zoning ordinance. In view of this determination, it is unnecessary for us to pass on the failure of the Department of Environmental Conservation to publish regulations in a timely manner or the refusal of its designee to recuse himself from his position on the Facility Siting Board.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed, with costs, in a memorandum.


text:
    Kings Park Butcher Shop, Inc., Appellant, v City of Long Beach, Respondent, et al., Defendants.
    Argued February 6, 1985;
    decided March 19, 1985
    APPEARANCES OF COUNSEL

      Milton J. Beech for appellant.

      Carolyn A. Cairns, Corporation Counsel (Samuel Ungar of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant, Kings Park Butcher Shop, Inc., acquired title to a parcel of land located in the City of Long Beach by virtue of a tax sale deed issued March 23, 1977 by the Nassau County Treasurer. Appellant claims title was thus free and clear of all tax liens, but respondent, the City of Long Beach, has asserted claims for city tax liens accruing before issuance of the County Treasurer’s deed. Contending that it should be liable only for city tax liens that accrued after March 23, 1977, appellant commenced this action to quiet title under RPAPL article 15. Special Term granted summary judgment for respondent, declaring that the tax deed did not extinguish its tax liens. The Appellate Division unanimously affirmed, and granted appellant leave to appeal to this court.

Administrative Code of Nassau County § 5-53.0 (L 1939, ch 272), the governing statute (see, First Tower Corp. v French, 45 AD2d 147, 150; Matter of Mohar Realty Co. v Smith, 50 Misc 2d 284, 286, affd 53 Misc 2d 453, affd 28 AD2d 826), provides in relevant part: “If [a] tax lien is not satisfied, the county treasurer shall execute to the holder of [the] certificate of sale of the tax lien a conveyance of the real estate on which the tax lien has been sold. This conveyance shall vest in the grantee an absolute estate in fee, subject to all claims which the county may have thereon for tax or other liens or incumbrances.”

County of Nassau v Lincer (280 NY 662, affg 254 App Div 760), decided under the predecessor to section 5-53.0 of the Administrative Code, controls this case. In Lincer, we held that a tax deed issued by the Nassau County Treasurer pursuant to Nassau County Tax Act § 93 (L 1919, ch 154) did not extinguish a lien for village taxes and assessments (see also, Village of Garden City v Roeder, 280 NY 663, affg 254 App Div 747). Similarly, in City of Rochester v Kapell (177 NY 533, affg 86 App Div 224), again involving a special tax law, the court rejected as unreasonable a statutory construction like that urged by appellant: “[T]he Legislature * * * could not have intended that a sale for taxes by one division should cut off and nullify sales made by other divisions for their taxes. The more reasonable construction of this section is one that preserves all liens for taxes, whether State, county, town or city.” (86 App Div, at pp 225-226.) While appellant contends that Segar v Youngs (45 NY2d 568) compels a contrary result, as we stated in Segar (id., at p 572) that case dealt with an entirely different enactment — Real Property Tax Law § 1020 (1) — and is therefore inapplicable.

Accordingly, notwithstanding the absence of any specific reference to city tax claims in Administrative Code of Nassau County § 5-53.0, respondent’s claims were not extinguished by the County Treasurer’s tax sale deed.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed, with costs, in a memorandum.


text:
    Overseas Development Bank in Liquidation, Appellant, v Naftali Chaim Nothmann et al., Respondents.
    Argued February 7, 1985;
    decided March 19, 1985
    APPEARANCES OF COUNSEL

      Joseph J. Schiavone, Terence F. Gilheany, Peter G. Bergmann and William D. Smith for appellant.

      David S. J. Neufeld for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues not previously reached.

In this action to enforce two money judgments of English courts, the Appellate Division reversed the lower court’s order granting plaintiff summary judgment and dismissed the complaint. In the Appellate Division’s view, the English judgments, by virtue of their age, were not “final, conclusive and enforceable” under CPLR 5302 without a writ of execution upon leave from an English court. Without passing on the reasoning of the court below, we note that plaintiff has now obtained leave from the Queen’s Bench Division of England’s High Court of Justice to issue a writ of execution and, on plaintiff’s motion, the record in this court has been expanded to include documentation of that order. The Appellate Division, having held that CPLR 5302 was not satisfied because of the perceived lack of enforceability, did not reach defendants’ remaining arguments concerning other mandatory and discretionary grounds for denying recognition of the foreign judgments under CPLR 5304. In view of the addition to the record, we remit this case to the Appellate Division for its consideration of those remaining issues.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

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


text:
    In the Matter of Forest Vistas Co., Appellant, v Robert Abrams, as Attorney-General of the State of New York, Respondent.
    Argued February 5, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Steven R. Lapidus and Stanford M. Singer for appellant.

      Robert Abrams, Attorney-General (James M. Morrissey, Robert Hermann and Peter Sherwood of counsel), respondent pro se.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (103 AD2d 730).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Lynch. Taking no part: Judge Alexander.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Northville Industries Corp., Appellant, v Fort Neck Oil Terminals Corp., Respondent, et al., Defendant.
    Argued February 7, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Samuel Silverman, Simon H. Rifkind, Martin London, Diane Englander and Robert P. Haney, Jr., for appellant.

      Robert J. Higgins, pro hac vice, George Kaufmann, Frederick M. Lowther, Michael E. Nannes and Eric H. Holtzman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (100 AD2d 865).

Concur: Judges Jasen, Meyer, Simons, Kaye, Alexander and Lynch. Taking no part: Chief Judge Wachtler.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Cynthia Zeigler, Appellant, v Robert M. Morgenthau, as District Attorney of New York County, et al., Respondents.
    Argued February 8, 1985;
    decided March 19, 1985

      APPEARANCES OF COUNSEL

      Michele Maxian and Caesar D. Cirigliano for appellant.

      Robert M. Morgenthau, District Attorney (Michelle Daly and Mark Dwyer of counsel), respondent pro se, and for Benjamin Altman, respondent.
   OPINION OF THE COURT

Judgment reversed, without costs, and petition granted for the reasons stated in the dissenting memorandum of then Justice Fritz W. Alexander, II, at the Appellate Division (99 AD2d 989, 990-991).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Lynch. Taking no part: Judge Alexander.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    The People of the State of New York, Respondent, v Edward McLaine, Also Known as Eddie McLain, Appellant.
    Argued February 13, 1985;
    decided March 19, 1985
   Appeal dismissed upon the ground that the issues as to the validity of defendant’s sentence are moot because he has served the sentence.


text:
    Hyosung (America), Inc., Respondent, v Woodcrest Fabrics, Inc., Appellant.
    Decided March 19, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that the order appealed from does not finally determine the action within the meaning of the Constitution, and an appeal does not lie pursuant to CPLR 5601 (d) from a final judgment entered upon default (CPLR 5511).

Judge Alexander taking no part.


text:
    Julia P. O’Connor, Respondent, v Samuel J. Roth, Appellant.
    Decided March 19, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification is not in a respect reviewable by the Court of Appeals (CPLR 5601 [a] [iii]; Patron v Patron, 40 NY2d 582).


text:
    Dorothy Storm et al., Respondents, v Board of Elections for the County of Nassau et al., Respondents, and Fred Hager et al., Appellants.
    Submitted March 11, 1985;
    decided March 19, 1985
   Motion for leave to appeal denied. Motion for Special Session and for a stay dismissed as academic.