text:
    Pinky Sohn, Respondent, v Lucretia Calderon et al., Appellants, and State of New York Division of Housing and Community Renewal, Intervenor-Appellant. In the Matter of Pinky Sohn et al., Respondents, v State Division of Housing and Community Renewal, Appellant, and Lucretia Calderon et al., Intervenors-Appellants.
    Argued September 5, 1991;
    decided October 15, 1991

      POINTS OF COUNSEL

      Herbert Semmel and David A. Weinraub for Lucretia Calderon and others, appellants.
    I. The Division of Housing and Community Renewal has exclusive jurisdiction to grant certificates of eviction based on demolition. Alternatively, under the doctrine of primary jurisdiction, the trial court erred in assuming jurisdiction of a complex, technical matter of Statewide application which has been delegated by law to DHCR. (520 E. 81st St. Assocs. v Lenox Hill Hosp., 38 NY2d 525; Matter of Sipal Realty Corp. v Dankers, 8 NY2d 319; Matter of Whitney Museum of Am. Art v New York State Div. of Hous. & Community Renewal, 139 AD2d 444, 73 NY2d 938; Matter of Public Serv. Commn. v Norton, 304 NY 522; Garay v Todros, 282 App Div 126; Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Englehardt v Consolidated Rail Corp., 756 F2d 1368; Far E. Conference v United States, 342 US 570; Hansen v Norfolk & W. Ry. Co., 689 F2d 707.) II. The trial court lacked jurisdiction to order the Department of Housing Preservation and Development to issue a certificate of no harassment and erroneously applied the provisions of the Clinton Special District Zoning Resolution. III. The trial court erred in its interpretation of the provisions on economic hardship which are a prerequisite to obtaining a certificate of eviction based on demolition. (Matter of New Year Realty Corp. v Herman, 11 AD2d 643; Matter of Ansonia Residents Assn. v New York State Div. of Hous. & Community Renewal, 75 NY2d 206.)

      Victor A. Kovner, Corporation Counsel (Alan G. Krams and
      Fay Leoussis of counsel), for New York City Department of Housing Preservation and Development, appellant.
    I. The order compelling the Department of Housing Preservation and Development to issue the no harassment certificate required by the zoning resolution impermissibly usurped the authority given exclusively to HPD by the City’s zoning legislation. Moreover, the Supreme Court gave this relief to plaintiff even though it had not been requested in plaintiff’s complaint and HPD had no notice that the court intended to address this issue. (Flacke v Onondaga Landfill Sys., 69 NY2d 355; Botwinick v Ogden, 59 NY2d 909; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143; Matter of Kamhi v Planning Bd., 59 NY2d 385; Matter of Pelham Esplanade v Board of Trustees, 77 NY2d 66; Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20; Matter of Darswan, Inc. v Capellini, 69 AD2d 835; People ex rel. Hudson-Harlem Val. Tit. & Mtge. Co. v Walker, 282 NY 400; Thayer v Baybutt, 29 AD2d 486, 24 NY2d 1018; Matter of Raskin v Murdock, 243 App Div 561.) II. The Supreme Court’s preliminary and permanent injunctions preventing HPD and the tenants from seeking enforcement of Housing Maintenance Code violations improperly prevent HPD and the Civil Court from performing their statutory functions regarding maintenance of housing standards in New York City. (New York Univ. v Arnold, 133 Misc 2d 1040; Berger-Tilles Leasing Corp. v York Assocs., 28 AD2d 1132, 22 NY2d 837; Smalls v Kaufmann, 112 AD2d 986; Antinelli v Toner, 74 AD2d 996; Werth v Gordon, 270 App Div 255.)

      Lawrence Alexander and Dennis B. Hasher for New York State Division of Housing and Community Renewal, intervenor-appellant.
    I. The Division of Housing and Community Renewal has exclusive jurisdiction to determine this application for certificates of eviction, where the landlord desires to demolish a building with tenancies protected under both the rent-control and rent-stabilization laws. (Braschi v Stahl Assocs. Co., 74 NY2d 201; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143; Kagen v Kagen, 21 NY2d 532; Slater v Gallman, 38 NY2d 1; Gaynor v Rockefeller, 15 NY2d 120; 520 E. 81st St. Assocs. v Lenox Hill Hosp., 38 NY2d 525; Matter of Ardizzone v Elliott, 75 NY2d 150; Ferres v City of New Rochelle, 68 NY2d 446; Brownrigg v Herk Estates, 276 App Div 566.) II. The courts below erred as a matter of law in concluding that based on the record at trial, respondent met the requirements under the rent-control and rent-stabilization laws allowing him to demolish the building. (Matter of Efrisch Realty Corp. v Gabel, 24 AD2d 177; Matter of Streg, Inc. v Herman, 41 Misc 2d 777; Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325; New Year Realty Corp. v Herman, 11 AD2d 643; Eyedent v Vickers Mgt., 150 AD2d 202.) III. The rent regulation statutes grant the Commissioner of DHCR exclusive jurisdiction to determine if harassment has occurred under these laws; the courts below improperly enjoined the harassment hearing pending before DHCR, granting relief that the owner specifically denied seeking, based on a trial that took place in a different action in which appellant was not even a party. (State of New York v Barone, 74 NY2d 332; Barasch v Barasch, 166 AD2d 399; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65; Brown v City of New York, 60 NY2d 897; Burrofato v Cretella, 108 Misc 2d 203; Matter of Rainka v Whalen, 73 AD2d 731, 51 NY2d 973; Matter of Doe v Axelrod, 71 NY2d 484; Matter of Block v Ambach, 73 NY2d 323; Mass v Blum, 112 Misc 2d 898.) IV. The court should not condone "Judge-shopping” in order to induce one Justice to overrule another Justice of coordinate jurisdiction. (DeBerardine v Rockland Elec. Co., 137 AD2d 647.)

      Jeffrey R. Metz, Paul N. Gruber, Myron I. Altschuler and Steven L. Schultz for respondent.
    I. The Supreme Court properly entertained this action. (Thrasher v United States Liab. Ins. Co., 19 NY2d 159; Condon v Associated Hosp. Serv., 287 NY 411; Kagen v Kagen, 21 NY2d 532; Matter of Seitz v Drogheo, 21 NY2d 181; Vasquez v Vasquez, 26 AD2d 701; Braschi v Stahl Assocs. Co., 143 AD2d 44, 74 NY2d 201; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Harmor Operating Co. v Vent-O-Matic Incinerator Corp., 1 AD2d 551.) II. Plaintiff established his entitlement to a declaration that the building may be demolished under applicable law. (Huntley v State of New York, 62 NY2d 134; Lichtman v Grossbard, 73 NY2d 792; Northern Westchester Professional Park Assocs. v Town of Bedford, 60 NY2d 492; Matter of Ansonia Residents Assn. v New York State Div. of Hous. & Community Renewal, 75 NY2d 206; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Village Tenth Co. v Walsh, 40 AD2d 969, 33 NY2d 700; Matter of Howard v Wyman, 28 NY2d 434; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205;
      Seawall Assocs. v City of New York, 74 NY2d 92.) III. The Department of Housing Preservation and Development and the tenants were properly enjoined from maintenance code enforcement proceedings against plaintiff pendente lite and permanently. (El Greco Inc. v Cohn, 139 AD2d 615; Colsun v Pelgram, 259 NY 370; Herzog Bros. Trucking v State Tax Commn., 69 NY2d 536; Brady v Ottaway Newspapers, 63 NY2d 1031; Eyedent v Vickers Mgt., 150 AD2d 202; Braschi v Stahl Assocs. Co., 74 NY2d 201; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831.) IV. The court properly granted the relief required under the Clinton Zoning Resolution. (Weil v Atlantic Beach Holding Corp., 1 NY2d 20; State of New York v Barone, 74 NY2d 332; Hochen v Rubin, 24 AD2d 254, 18 NY2d 866; I. H. P. Corp. v 210 Cent. Park S. Corp., 12 NY2d 329; Ungewitter v Toch, 31 AD2d 583, 26 NY2d 687; Diemer v Diemer, 8 NY2d 206; Livingston v Livingston, 246 NY 234; Ansonia Assocs. v Ansonia Residents’ Assn., 78 AD2d 211; Bartley v Walentas, 78 AD2d 310; Doyle v Allstate Ins. Co., 1 NY2d 439.) V. The prosecution of the harassment proceeding by DHCR was properly enjoined. (People v Lexington Sixty-First Assocs., 38 NY2d 588.)

      Donald Rosenthal for Legal Services for New York City and others, amici curiae.

    The trial court misapplied the statutory test mandated by the Sound Housing Law as construed according to its clear terms and in light of its legislative history. (Eaton v New York Conciliation & Appeals Bd., 56 NY2d 340; Ferres v City of New Rochelle, 68 NY2d 446; People v Ryan, 274 NY 149; Braschi v Stahl Assocs. Co., 74 NY2d 201; National Org. for Women v Metropolitan Life Ins. Co., 131 AD2d 356; Matter of Albano v Kirby, 36 NY2d 526; Lincoln First Bank v Rupert, 60 AD2d 193; Molina v Games Mgt. Servs., 58 NY2d 523; Matter of Campagna v Shaffer, 73 NY2d 237.)

      Paris R. Baldacci, Kathleen A. Masters, Kalman Finkel and Jane Booth for The Legal Aid Society of New York City, amicus curiae.

    The decision of the court below eviscerates the statutorily mandated, tenant-protective function of the Division of Housing and Community Renewal in administering the rent control and stabilization laws and will result in the dislocation of long-term tenants from their homes, the loss of numerous rent-regulated residential units and the straining of the resources of legal services organizations. (Braschi v Stahl Assocs. Co., 74 NY2d 201; Festa v Leshen, 145 AD2d 49; Matter

      of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325; Matter of Village Tenth Co. v Walsh, 40 AD2d 969, 33 NY2d 700; Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11; Haddad Corp. v Redmond Studio, 102 AD2d 730; Garay v Todros, 282 App Div 126.)
   OPINION OF THE COURT

Titone, J.

In this action and proceeding, the Supreme Court, New York County, granted plaintiff landlord judgment declaring that he is entitled under the New York City Rent and Eviction Regulations and the Rent Stabilization Code to demolish his building, to evict his rent-control tenants and to refrain from offering renewal leases to his rent-stabilization tenants. The primary question presented by this appeal is whether the Supreme Court had concurrent authority to entertain the dispute in light of the various sections of the Regulations and the Code that specifically provide for the resolution of such disputes, at least in the first instance, by the Division of Housing and Community Renewal (DHCR), the administrative agency charged with implementing those statutes. We hold that DHCR had exclusive original jurisdiction in this situation and, accordingly, that plaintiff’s complaint and petition should have been dismissed.

This landlord-tenant dispute has its origins in a three-alarm fire that occurred on March 8, 1986 in a 39-unit apartment building located at 306-310 West 51st Street in Manhattan. Most of the apartment units in the building, which was severely damaged in the fire, are subject to either rent-control or rent-stabilization laws.

As a result of the fire damage, the New York City Department of Housing Preservation and Development (HPD) issued notices that the building contained violations of the Housing Maintenance Code. Additionally, the tenants, who had lived in the building from 8 to 45 years, brought an action in Civil Court to compel plaintiff, the building’s owner, to make the repairs necessary to render their units habitable.

In response, plaintiff commenced an action in Supreme Court against the tenants and HPD for a declaration that under the applicable rent-control and rent-stabilization regulations he was entitled either to demolish the building or to remove the housing accommodations from the market because the cost to render them safely habitable was equal to or exceeded the building’s assessed value (see, Administrative Code of City of New York § 26-408 [b] [3], [4], [5] [a]; 9 NYCRR 2204.8 [a] [1]; 2524.5 [a] [2]). In addition, plaintiff sought a declaration that he was entitled to be issued "certificates of eviction,” which the law requires as a condition precedent to an owner’s regaining possession of rent-controlled premises in these circumstances (see, Administrative Code § 26-408 [a]). Finally, plaintiff sought permanent injunctive relief precluding HPD and the tenants from pursuing their efforts to force him to correct outstanding violations through administrative or Civil Court proceedings.

Proceeding initially by order to show cause, plaintiff moved for a preliminary injunction against HPD’s enforcement efforts and, alternatively, for an order consolidating his Supreme Court action with the pending Civil Court action brought by the tenants. Defendants opposed the motion and asserted, among other things, that the court lacked subject matter jurisdiction of the controversy. The court denied plaintiff’s requests for provisional relief and consolidation, but it did temporarily stay the Civil Court proceedings and set the controversy down for an immediate trial, thereby implicitly rejecting defendants’ subject matter jurisdiction arguments. The Appellate Division revised the Supreme Court order in one minor respect and, as modified, affirmed without mention of the jurisdictional issue (125 AD2d 227).

The jurisdictional problem was again addressed when DHCR moved to intervene in the Supreme Court action for the limited purpose of raising that threshold issue. This time, the Supreme Court explicitly ruled on the issue, concluding that, as a court of unlimited equitable jurisdiction, it had concurrent authority to determine the dispute. The court also held that this was a proper case for it to exercise its concurrent authority because "[f]rom past experience * * * if this matter was referred to DHCR, it would not be afforded the expeditious treatment necessary to protect the rights of the litigants.” Accordingly, DHCR’s motion was denied in an order that was subsequently affirmed (133 AD2d 1021).

While these preliminary matters were sub judice, DHCR was conducting a related investigation into the tenants’ charges of landlord harassment (see, Administrative Code § 26-413 [b] [2]; § 26-412 [d]; § 26-516 [c]; see also, 9 NYCRR 2526.2 [c] [2]; id., part 2206). To forestall administrative disposition of these charges, plaintiff moved within the declaratory judgment action for an order staying the agency’s harassment proceeding. Plaintiff also commenced a separate CPLR article 78 proceeding against DHCR by order to show cause, seeking similar relief. The trial court granted the stay and also signed the order to show cause, which included an interim stay of the harassment proceeding. The court based its determination on its conclusion that the issues in the administrative harassment proceeding were factually related to those in the declaratory judgment action and that the waste of resources, coupled with the risk of inconsistent results, warranted the interim relief.

Following a plenary trial of the factual and economic claims underlying the declaratory judgment action, Supreme Court found that plaintiff had satisfied the requirements of the rent-control and rent-stabilization provisions that permit an owner to recover possession of the housing accommodations where he has a good-faith intention promptly to demolish the building and construct a new one (Administrative Code § 26-408 [b] [4], [5]; 9 NYCRR 2524.5 [a] [2]). Specifically, plaintiff proved, to the court’s satisfaction, that he had the "financial capability] to accomplish his expressed * * * purpose of demolishing the building and constructing a new [one],” that the mortgagee had no objection to plaintiff’s plans, that plaintiff had provided the notifications required by local zoning regulations, that plaintiff’s stated willingness to offer relocation allowances to evicted tenants appeared to comply with "all applicable legal requirements,” that the cost of removing existing violations would exceed or be substantially equal to the building’s assessed value and that plaintiff’s architect had prepared plans for submission to the Building Department for a new structure containing 40 apartment units, one more than the existing structure contained. Finally, the court found that plaintiff had satisfied the requirements of the Sound Housing Law (L 1974, ch 1022, as amended by L 1975, ch 360, codified at Administrative Code § 26-408 [b] [5]) by demonstrating that there was no "reasonable possibility that [he could] make a net annual return of [8lá%] of the assessed value of the subject property” and that he had not intentionally mismanaged the property in order to impair its ability to earn such a return.

Accordingly, the court held that, subject to his obtaining the necessary Building Department approvals (see, Administrative Code § 26-408 [b] [4] [d]; § 26-511 [c] [9]) and his formal offer of suitable relocation stipends to the tenants (see, 9 NYCRR 2524.5 [c]), plaintiff was entitled (1) to be relieved of his statutory duty to give renewal leases to the rent-stabilization tenants, (2) to be issued certificates of eviction for the existing rent-control tenants, (3) to be issued no-harassment certificates by HPD under local zoning regulations for the Clinton Hill District and (4) to "take any and all appropriate steps” to evict the rent-control and rent-stabilization tenants. The court also granted plaintiff relief in the article 78 proceeding by permanently enjoining DHCR from taking further action against him in connection with the pending harassment charges. After consolidating the declaratory judgment action with the article 78 proceeding for the purpose of argument alone and after granting DHCR permission to intervene in the action, the Appellate Division affirmed each of these rulings. The court subsequently granted the unsuccessful appellants leave to take a further appeal, certifying the following question of law: "Were the order and judgment of the Supreme Court, as affirmed by this Court, properly made?” We now reverse.

A building owner’s right to evict tenants protected by the New York City rent control laws is governed by section 26-408 of the Administrative Code of the City of New York. Section 26-408 (a) lists seven grounds for evicting rent-control tenants "for cause” (Administrative Code § 26-408 [a] [1]-[7]), and section 26-408 (b) delineates the other circumstances in which owners of rent-controlled apartment units may regain possession, including situations where the owner has an "immediate and compelling need [to recover the premises] for his or her own personal use” or wishes to regain control of a unit that has been sublet (id., § 26-408 [b] [1], [2]). Also included in this category are situations in which the owner plans an immediate "substantial” renovation or complete demolition of the building (id., § 26-408 [b] [3], [4]).

Where a section 26-408 (b) eviction is sought, the landlord must apply for and obtain a "certificate of eviction,” which "the city rent agency [now the DHCR ] shall issue * * * in accordance with its rules and regulations” (id., § 26-408 [b] [emphasis supplied]). When the specific ground for eviction is the owner’s "good faith” intention to demolish the building, a certificate cannot be issued unless "[the] agency determines” that the new building will contain a greater number of apartment units than the demolished building, "[the] agency determines that the issuance of such certificate is not inconsistent with the purpose” of the rent control laws and the owner complies with the agency’s regulations regarding relocating tenants and furnishing appropriate stipends for that purpose (id., § 26-408 [b] [4] [a]-[d]). The Sound Housing Law adopted in 1974 (L 1974, ch 1022) also requires a landlord seeking to withdraw a rent-controlled unit from the marketplace to satisfy the agency that "there is no reasonable possibility that the landlord can make a net annual return of [816%]” (id., §26-408 [b] [5] [a]), and the landlord must obtain "prior written approval” by the agency if an existing tenant is to be evicted (id., § 26-408 [j] [1]).

The Rent Stabilization Code contains analogous rules requiring determinations by DHCR before a landlord may withdraw the protected apartment units from the market and demolish the building (9 NYCRR 2524.5 [a] [2]). Finally, both the New York City rent control law and the Rent Stabilization Code give DHCR the responsibility of adjudicating claimed violations of the rules prohibiting landlords from harassing tenants to induce them to leave their apartments (Administrative Code § 26-413 [b] [2]; § 26-412 [d]; § 26-516 [c]; see also, 9 NYCRR 2526.2 [c] [2]; id., part 2206). The harassment question is one that must also be considered by HPD, under the Special Clinton District Provisions of the City Zoning Resolution (NY City Zoning Resolution §§ 96-109, 96-110).

It is clear beyond question that the Legislature intended disputes over a landlord’s right to demolish a regulated building to be adjudicated by the DHCR and, to a lesser extent, HPD. The question presented here, which in this instance is dispositive, is whether by virtue of its constitutional role as a court of general original jurisdiction, the Supreme Court has concurrent authority to adjudicate such disputes.

Article VI, § 7 of the NY Constitution establishes the Supreme Court as a court of "general original jurisdiction in law and equity” (NY Const, art VI, § 7 [a]). Under this grant of authority, the Supreme Court "is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed” (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166), and to that extent its powers are "unlimited and unqualified” (Kagen v Kagen, 21 NY2d 532, 537).

However, as all parties agree, rent-control and rent-stabilization disputes are a modern legislatively created category not encompassed within the traditional categories of actions at law and equity referred to in section 7 (a) of article VI of the NY Constitution (see generally, Langerman v Langerman, 303 NY 465). Thus, the Supreme Court’s authority in this case depends on the reach of section 7 (b) of article VI, which provides: "If the legislature shall create new classes of fictions and proceedings, the supreme court shall have jurisdiction over such classes of actions and proceedings,” even though "the legislature may provide that another court or courts shall also have jurisdiction and that actions and proceedings of such classes may be originated in such other court or courts.”

It has been held that the "new class of actions and proceedings” to which article VI, § 7 (b) specifically refers are those which were unknown at common law and therefore would otherwise be outside the general jurisdiction continued and preserved by section 7 (a) (Matter of Seitz v Drogheo, 21 NY2d 181; Kagen v Kagen, 21 NY2d 532, 536-537, supra). However, it has never been suggested that every claim or dispute arising under a legislatively created scheme may be brought to the Supreme Court for original adjudication. To the contrary, in Loretto v Teleprompter Manhattan CATV Corp. (58 NY2d 143, 152-153), this Court observed that concurrent original jurisdiction is not necessarily conferred on the Supreme Court when the Legislature provides for the adjudication of regulatory disputes by an administrative agency within the executive branch, as distinguished from a court within the judicial branch. Indeed, we stated in Loretto that there is nothing in article VI, § 7 (b) or the relevant case law "to suggest that administrative agencies cannot be given a first instance adjudicatory function, subject to judicial review” (58 NY2d, at 153, supra; cf., Flacke v Onondaga Landfill Sys., 69 NY2d 355, 362-363 [Supreme Court does not have jurisdiction concurrent with that of Department of Environmental Conservation with respect to agency’s legislative licensing and regulatory functions]).

Accordingly, the constitutionally protected jurisdiction of the Supreme Court does not prohibit the Legislature from conferring exclusive original jurisdiction upon an agency in connection with the administration of a statutory regulatory program. In situations where the Legislature has made that choice, the Supreme Court’s power is limited to article 78 review, except where the applicability or constitutionality of the regulatory statute, or other like questions, are in issue (see, e.g., Seawall Assocs. v City of New York, 74 NY2d 92; 520 E. 81st St. Assocs. v Lenox Hill Hosp., 38 NY2d 525; Niagara Falls Power Co. v Halpin, 267 App Div 236, affd sub nom. Niagara Falls Power Co. v White, 292 NY 705).

The only issues raised by plaintiffs complaint were his satisfaction of the regulatory conditions for obtaining certificates of eviction and demolishing a structure containing protected apartment units. The earlier described provisions of the rent-control and rent-stabilization laws demonstrate that the Legislature intended DHCR and HPD to be the exclusive initial arbiters of whether an owner has, in fact, met these regulatory conditions. In addition to the many references to the need to establish the necessary facts to the agency’s satisfaction and the other references to determinations and findings by the agency (Administrative Code § 26-408 [b] [3], [4] [a] , [b], [d]; [5] [a], [b] [i]), the distinction drawn in the rent-control provisions between eviction proceedings that may be commenced immediately in court, without prior approval of the DHCR (Administrative Code § 26-408 [a]), and those that require agency-issued "certificate[s] of eviction” (id., § 26-408 [b] ) evinces a legislative intent to have issues arising in the latter class of cases determined, in the first instance, by the agency. Similarly, section 26-408 (f), which provides that orders granting a certificate of eviction "shall be subject to judicial review only in the manner prescribed by [State enabling act § 1 (8) (codified at McKinney’s Uncons Laws of NY § 8608) (mandating article 78 review)],” lends further support to the conclusion that the agency was intended to have exclusive original jurisdiction over these controversies. That conclusion is also bolstered by the Legislature’s authorization to DHCR to continue the policies of its predecessor (the New York City Conciliation and Appeals Board) (L 1983, ch 403, §§ 19, 20), including its practice of adjudicating landlords’ applications for permission to demolish buildings subject to the rent-stabilization laws (see, former Code of Rent Stabilization Association of New York City, Inc. § 54 [D] [1]; see also, 9 NYCRR 2524.5 [a] [2]).

Since concurrent Supreme Court jurisdiction was not contemplated in this situation and the Constitution does not require it (see, Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143, 152-153, supra), Supreme Court erred in entertaining plaintiff’s claims on the merits. Furthermore, Supreme Court’s consideration of the delays that purportedly typify the administrative adjudicative process was inappropriate, since that factor, to the extent it might ever be relevant at all, would apply only in the application of the doctrine of "primary jurisdiction.” That doctrine, which represents an effort to "co-ordinate the relationship between courts and administrative agencies,” generally enjoins courts having concurrent jurisdiction to refrain from adjudicating disputes within an administrative agency’s authority, particularly where the agency’s specialized experience and technical expertise is involved (Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11, 22). While the rule is certainly not without exceptions, no such exception is possible where, as here, the agency’s original jurisdiction is exclusive (see, Flacke v Onondaga Landfill Sys., supra, at 362).

For all of the foregoing reasons, the Supreme Court should not have entertained plaintiff’s action for declaratory and related relief in connection with his efforts to demolish the building. Similarly, it should not have directed HPD to issue "no harassment” certificates on the basis of its own findings on the harassment issue or granted plaintiff’s application in the article 78 proceeding to enjoin DHCR’s inquiry into the tenants’ harassment charges, since in these circumstances the harassment issue is one for DHCR and HPD to resolve under their respective enabling provisions. Finally, the Supreme Court’s permanent injunction against the tenants’ and HPD’s efforts to remedy Housing Maintenance Code violations is untenable because it was premised on factual determinations that the Supreme Court had no authority to make. Rather than adjudicating the controversy, the Supreme Court should have dismissed the complaint for lack of subject matter jurisdiction (see, Combustion Eng’g v Travelers Indem. Co., 53 NY2d 875; cf., Lanza v Wagner, 11 NY2d 317, 334; see also, 3 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 3001.13, 3001.18) and dismissed the article 78 petition on the merits because it sought to enjoin a determination that was within DHCR’s exclusive province.

Accordingly, the order of the Appellate Division should be reversed, with costs, the complaint and petition dismissed and the certified question answered in the negative.

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

Order reversed, etc.

      . An earlier article 78 application by plaintiff for a writ of prohibition, a stay of the DHCR proceedings and consolidation with the pending declaratory judgment action had been denied by Justice Greenfield. Justice Pecora, who presided in the declaratory judgment action and the second article 78 proceeding, concluded that this determination was not a bar to his own issuance of the less "drastic remedy” of a discretionary interim stay.

      . See, L 1983, ch 403, §§ 22, 31.

      . There is no minimum requirement for the number of additional units in the new structure if the landlord can show that "the cost of removing [existing health and safety] violations would be substantially equal to or would exceed the assessed valuation of the structure” (Administrative Code of City of New York § 26-408 [b] [4] [a]). In all other cases, the new building must contain at least 20% more unite. Other conditions for the issuance of a certificate of eviction for a planned demolition include the landlord’s having obtained the necessary approvals for the new construction and a determination by DHCR that the certificate would not be "inconsistent with the purposes” of the rent-control laws (id., § 26-408 [b] [4] [d]).


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Ditain Turaine, Also Known as Dittan Turaine, Also Known as Ditian Turaine, Also Known as Dhain Turaine, Appellant.
    Argued April 30, 1991;
    decided June 4, 1991
    APPEARANCES OF COUNSEL

      E. Joshua Rosenkranz for appellant.

      Robert M. Morgenthau, District Attorney (Catherine M. Cook and Donna Krone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On the day of defendant’s jury trial one of the witnesses against him, who was being held on other charges, was mistakenly placed in the holding pen in the courthouse with defendant. During the trial, the prosecutor attempted to have the witness testify that while in the holding pen, defendant threatened or intimidated him to prevent him from testifying. Before receiving the evidence, the trial court conducted a hearing in the absence of the jury. Over objection, the court excluded defendant from the courtroom during the hearing. That ruling constituted reversible error.

A defendant has the right to be present at any material stage of the trial (see, People v Velasco, 77 NY2d 469; People v Mullen, 44 NY2d 1, 4-5). Proceedings where testimony is received are material stages of the trial because defendant’s presence is necessary so that he or she may confront adverse witnesses and advise counsel of any inconsistencies, errors or falsehoods in their testimony (People v Anderson, 16 NY2d 282, 288; and see, People ex rel. Lupo v Fay, 13 NY2d 253, 257, remittitur amended 13 NY2d 1178, cert denied 376 US 958). A preliminary hearing at which adverse testimony is received may be a material part of the trial for similar reasons (see, People v Anderson, supra, at 286-288). Defendant’s absence from such hearings could have a substantial effect on his ability to defend (see, Snyder v Massachusetts, 291 US 97, 105-106).

The purpose of the hearing in this case was to elicit the witness’s version of the facts surrounding the alleged intimidation so that the court could determine its admissibility at trial. Defendant was entitled to confront the witness against him at that hearing and also to be present so that he could advise counsel of any errors or falsities in the witness’ testimony which could have an impact on guilt or innocence. It was not sufficient under the circumstances, as the Appellate Division concluded, that defendant was present when the witness testified before the jury. At that stage of the trial, the court had already decided the evidence had probative value and would be received for the jury’s consideration.

In view of our disposition, we need not decide defendant’s remaining contentions.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Yeroush Corporation, Respondent, v Eli Nhaissi, Appellant.
    Argued April 24, 1991;
    decided June 4, 1991
    APPEARANCES OF COUNSEL

      Ralph Pernick and Clifford J. Chu for appellant.

      Edward H. Weinberg for respondent.
   OPINION OF THE COURT

Memorandum.

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

Yeroush Corporation obtained a $141,000 arbitration award in connection with its discharge as the contractor hired to complete construction for Nhaissi. Supreme Court confirmed the award, denying Nhaissi’s cross motion for vacatur on the ground of "corruption, fraud or misconduct” (CPLR 7511 [b] [1] [i]), and the Appellate Division affirmed.

Nhaissi, as appellant, urges that his motion to vacate the arbitration award should have been granted because of statements made by Yeroush’s president to Nhaissi’s architect — an individual at the time involved in ongoing construction work with both parties. As evidence of misconduct, Nhaissi points to the architect’s affidavit reciting that Yeroush’s president told him to testify " 'fairly’ so as not to jeopardize [their] relationship.” Nhaissi urges that this affidavit entitles him to vacatur of the arbitration award, or at least a hearing on the issue of misconduct. We disagree. There is no reason to disturb Supreme Court’s determination as a matter of law that the statements in the architect’s affidavit in no way rise to the level of "misconduct” under the CPLR.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Dwayne Brown, Appellant.
    Argued April 26, 1991;
    decided June 4, 1991

      APPEARANCES OF COUNSEL

      Sam A. Schmidt for appellant.

      Robert M. Morgenthau, District Attorney (Hilary Hassler and James M. McGuire of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. There was no abuse of discretion in permitting the police officers’ testimony, with cautionary instructions.

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


text:
    The People of the State of New York, Respondent, v James K. Hayes, Appellant.
    Argued April 25, 1991;
    decided June 4, 1991

      APPEARANCES OF COUNSEL

      Andrea Hirsch and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Phyllis A. Monroe and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum of the Appellate Division (163 AD2d 165).

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


text:
    Ba Mar, Inc., Respondent-Appellant, v County of Rockland, Appellant-Respondent.
    Submitted March 18, 1991;
    decided June 4, 1991
   Motion to dismiss appeal taken as of right by County of Rockland granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

Motion by Ba Mar, Inc. for leave to appeal denied.


text:
    Department of Housing Preservation and Development of the City of New York, Respondent, v Mill River Realty, Inc., et al., Respondents, and 352 Cathedral Equities, Inc., et al., Appellants.
    Submitted May 20, 1991;
    decided June 4, 1991
   Motion, insofar as it seeks to stay that portion of the Appellate Division order that reversed Appellate Term’s order and reinstated the August 30, 1988 Civil Court contempt order, granted; motion for a stay otherwise denied.


text:
    Lester Fishman, as Preliminary Executor of Arthur Lesser, Deceased, Appellant, v Manhattan and Bronx Surface Transit Operating Authority, Respondent.
    Submitted February 11, 1991;
    decided June 4, 1991
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that the Appellate Division does not have the power to grant leave to appeal on a certified question from an order granting a new trial (see, CPLR 5601 [c]; 5602 [b] [1]; Mundt v Glokner, 160 NY 571), without prejudice to any right plaintiff may have to take an appeal pursuant to CPLR 5601 (c), if he be so advised.


text:
    Charles J. Santangelo, Appellant, v Goldman Sachs & Company, Respondent.
    Submitted April 8, 1991;
    decided June 4, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    The People of the State of New York, Respondent, v Anthony Ford, Appellant.
    Argued April 30, 1991;
    decided June 6, 1991

      APPEARANCES OF COUNSEL

      Steven M. Statsinger and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Tami J. Aisenson and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The court’s direction to the court officer to "[t]ake the jury out to dinner and a hotel” was not an improper delegation of judicial authority (see, People v Bonaparte, 78 NY2d 26 [decided herewith]). There is no indication on this record that the court officer’s communications to the jury in attempting to carry out those instructions were anything other than ministerial.

Further, defense counsel did not ask the court to deliver a sequestration instruction to the jury. Consequently, any claim that the court erred in failing to give such an instruction is not preserved for our review (see, People v Bonaparte, supra).

Nor was the court’s Allen charge (see, Allen v United States, 164 US 492) unbalanced or coercive for its failure to emphasize that "the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows” (id., at 501). The supplemental instruction viewed as a whole was simply encouraging rather than coercive and was appropriate in light of the fact that the "deadlocked” jury had been deliberating for less than four hours.

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

Order affirmed in a memorandum.


author: Bellacosa, J.

text:
    Herbert Van Amerogen, Jr., et al., Appellants, v Samuel Donnini et al., Respondents.
    Argued April 23, 1991;
    decided June 6, 1991

      APPEARANCES OF COUNSEL

      George L. Sarachan and Robert M. Cohen for appellants.

      John H. Hanrahan, 3d, for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured when he fell from a porch roof of a four-bedroom house. He had been hired to repair the roof by defendant Samuel Donnini, whose wife, Marsini Donnini, owned the property. She had purchased it in 1970 and since that time continuously used the house solely for rental to college students.

A divided Appellate Division reversed Supreme Court’s denial of defendants’ motion for summary judgment in this action for damages resulting from a claimed violation of Labor Law §§ 240 and 241. That court concluded that neither the fact that the student-occupants were unrelated and thus did not constitute a "family”, nor the fact that the owners did not occupy the property themselves but held it solely for commercial gain, excluded them from the benefit of the provisions of Labor Law §§240 and 241 which exempts from the strict liability of that statute "owners of one and two-family dwellings who contract for but do not direct or control the work [performed in relation to such dwellings].”

We recently noted in Cannon v Putnam (76 NY2d 644) that although the Legislature has not defined the terms "one or two family dwellings” it is clear that in exempting "owners of one and two-family dwellings who contract for but do not direct or control the work,” from the duties imposed by Labor Law § 240 (1) and § 241, the Legislature intended to relax the harsh strict liability rule of that statute as against such owners because " '[i]t is unrealistic to expect the owner of a one or two family dwelling to realize, understand and insure against the responsibility sections 240 and 241 now place upon him’ ” (Cannon v Putnam, 76 NY2d, at 649-650, quoting Mem of NY Law Rev Commn, 1980 McKinney’s Session Laws of NY, at 1657). We noted that the exemption was added because the Legislature sought to make the law "fairer and * * * more nearly reflect the practical realities governing the relationship between homeowners and the individuals they hire to perform construction work on their homes” (id.). These owners were perceived as lacking in sophistication or business acumen and "not in a position to know about, or provide for the responsibilities of absolute liability” (see, Mem of NY Law Rev Commn, op. cit, at 1658). However, the exemption from the strict liability of Labor Law §§ 240 and 241 for one and two-family homeowners is an exception to the clear legislative intent to "protect[ ] workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner’ ” (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520, quoting 1969 NY Legis Ann, at 407) and as such, may properly be extended "only so far as [the] language [of the exception] fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exception” (McKinney’s Cons Laws of NY, Book 1, Statutes § 213; see, Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, affd 61 NY2d 652).

Accordingly, we find no basis for concluding that this exemption should be expanded to encompass homeowners who use their one or two-family premises entirely and solely for commercial purposes and who hardly are lacking in sophistication or business acumen such that they would fail to recognize the necessity to insure against the strict liability imposed by the statute. Such owners do not fall within the class protected by the exemption (see, Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573).

The house in question here has always been used by these defendants exclusively for commercial purposes as income-producing rental property. There is record evidence that the bedrooms are rented to unrelated students individually, with each making rent payments separately to the owner-landlord. The tenants are responsible for the utilities, but repairs and maintenance are the responsibility of the landlord. Thus, rather than a "one [or] two-family [house]” as contemplated by the legislative exemption, the premises here is a commercial enterprise, a rooming house.

These defendants are quite unlike "[the] homeowner who hires someone to paint his own living-room ceiling [who should be accorded the statutory exemption from strict liability]” (Cannon v Putnam, 76 NY2d 644, 650, supra), and are not within the class of persons the Legislature sought to exempt from the strict liability provisions of Labor Law §§ 240 and 241.

Bellacosa, J.

(dissenting). Remedial legislation was enacted in 1980 (L 1980, ch 670, §§ 1, 2) to ameliorate the harshness and to narrow the scope of the strict liability imposed by Labor Law § 240 (1) and § 241, as interpreted by this Court in Haimes v New York Tel. Co. (46 NY2d 132) and Allen v Cloutier Constr. Corp. (44 NY2d 290, rearg denied 45 NY2d 776). "[O]wners of one and two-family dwellings” who contract for but do not direct or control a contractor’s work were specifically exempted from that strict liability doctrine (Labor Law § 240 [1]; § 241).

Defendant Marsini Donnini owns the one-family dwelling at issue and defendant Samuel Donnini, her husband, oversees its rental. Defendants own only two properties: their home in Cohoes, New York, in which they reside, and the dwelling at issue in Troy, New York, which they currently rent to college students. The Troy dwelling is not divided into apartments or separate living quarters; it has one kitchen, one bathroom, four bedrooms and a common living area. It is not a "commercial enterprise” and defendants are not "developer/owners of one and two-family houses constructed for resale” (majority mem, at 883, and n). Nevertheless, they are deprived of the 1980 remedial exemption by the majority’s statutory construction which inserts a "commercial use” disqualifier into the plain statutory language and creates a sweeping presumption of commercial sophistication attributed to all renting owners of one or two-family dwellings.

Unambiguous language in a statute must be construed to give effect to the plain meaning of the words used (see, Matter of Yong-Myun Rho v Ambach, 74 NY2d 318, 321-322; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 76, 94). The words of Labor Law § 240 (1) and § 241 are plain and have unmistakable import and history.

The Legislature chose language related only to the structural character of dwellings when it enacted protection specifically and simply for owners of "one and two-family dwellings” who do not direct or control work on the premises. Had the Legislature intended to further restrict the beneficial reach of the exemption it was enacting, it could have just as simply added a variety of qualifying clauses or words relating to a dwelling’s use, e.g., "occupied by the owner” or "not used for commercial purposes”. It did nothing of the kind. To the contrary, the inclusion of two-family dwellings in the exemption amendment unequivocally supports the conclusion that the Legislature contemplated at least partial commercial use without forfeiture of the exemption (see, Cannon v Putnam, 76 NY2d 644, 650 ["A homeowner who hires someone to paint his own living-room ceiling should be afforded the benefit of the statutory exemption from liability even if he also maintains a business on the property” (emphasis added)]; see also, Rivera v Revzin, 163 AD2d 896). Nevertheless, the majority concludes that owners who rent their one or two-family dwelling forfeit the remedial benefit the Legislature so plainly engrafted on the strict liability cause of action which it created. That conclusion clashes with proper statutory construction rules.

The majority advances the axiom that statutory exceptions are strictly construed. Competing with this rule of thumb, however, is the requirement that liberal construction be given to exemptions, such as those at issue in Labor Law § 240 (1) and § 241, which are remedial in nature (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 321). Moreover, the substantive rule of strict liability imposed by Labor Law § 240 (1) and §241 drastically changed and increased owners’ common-law liability. In this respect, statutes which derogate from common law are supposed to be strictly construed (Arbegast v Board of Educ., 65 NY2d 161, 169; Miller v Town of Irondequoit, 243 App Div 240, 242, affd without opn 268 NY 578; McKinney’s Cons Laws of NY, Book 1, Statutes § 301 [a], [c]; § 304). In this contest of varying statutory rules of construction, the defendants definitively have the better case.

But there is even more. The majority creates a presumption, seemingly woven out of legislative history, as a basis for excising defendants as a matter of law from the exempt class of strictly liable persons. That approach weakens, rather than aids, plaintiff’s statutory construction case. First, resort to legislative history to divine the meaning of the clear language of Labor Law § 240 (1) and § 241 is unwarranted (Sega v State of New York, 60 NY2d 183, 191; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 120, 125). Even when considered, however, the legislative history of the 1980 amendment suggests that it was the product of the Legislature’s concern that owners of one and two-family dwellings are not sophisticated enough to realize, understand and insure against the risk of strict liability under the Labor Law (see, Mem of NY Law Rev Commn, 1980 McKinney’s Session Laws of NY, at 1657). Defendants are exactly the type of owner for whom the Legislature was expressing concern and enacting a protection. Yet, a new presumption is now attributed to defendants — and everyone else who owns or comes to own a one or two-family rental dwelling — that merely by renting a single piece of property they automatically have sufficient business skills and expertise "to recognize the necessity to insure against the strict liability imposed by the statute.” (Majority mem, at 882.) That presumption runs diametrically contrary to the legislative intent and is not supported by the legislative history. There is no indication that the Legislature ever considered the sophistication of property owners as a limitation on the reach of the "one and two-family dwellings” exemption. The only limitation discussed and eventually adopted was that the exemption would not apply to owners who actually direct and control the work (see, Mem of NY Law Rev Commn, op. cit; Dept of Commerce Letter, Bill Jacket, L 1980, ch 670). That should take care, in any event, of the developer-type owners about whom the majority frets in its strawperson argument by hypothesizing a case not now before us, which is then used to deprive the defendants who are before us in this case of their statutory exemption. Finally, there is no empirical basis anywhere in the statute, its legislative history or this record for the erection of such a presumption and its attribution to these defendants.

Thus, by the twist of two faulty premises, liability is thrust on defendants by operation of law rather than by trial and proof. They are deprived of their day in court and of any potentially mitigating benefits of plaintiffs own comparative negligence. Plaintiff is correspondingly relieved of the elemental burden of proving negligent conduct by the defendants.

The injustice of this approach may be appreciated better by observing that if plaintiff had not enjoyed this procedural and substantive windfall, he might still have had his day in court with the opportunity to prove a traditional common-law negligence cause of action against these defendants. It is only the defendants, based on a cramped construction of the remedial statutory exemption, who are driven out of court before plaintiff is even put to his proof.

We respectfully dissent and would affirm the order of the Appellate Division granting summary judgment to defendants dismissing the complaint.

Judges Simons, Kaye, Alexander and Titone concur in memorandum; Judge Bellacosa dissents and votes to affirm in an opinion in which Chief Judge Wachtler and Judge Hancock, Jr., concur.

Order reversed, etc.

       The literal "plain meaning” interpretation adopted by the dissent would extend the exception afforded by this statute even to developer/owners of one and two-family houses constructed for resale so long as they do not "direct or control the work” — a result manifestly not intended by the Legislature.


text:
    The People of the State of New York, Respondent, v Owen Forrest, Appellant.
    Argued April 26, 1991;
    decided June 6, 1991

      APPEARANCES OF COUNSEL

      Mitchell J. Briskey and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Allen H. Saperstein and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum of the Appellate Division (163 AD2d 213).

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


text:
    In the Matter of the Liquidation of Nassau Insurance Company. Suzellen Bergen et al., Appellants; Superintendent of Insurance, as Liquidator of Nassau Insurance Company, Respondent.
    Argued April 25, 1991;
    decided June 6, 1991

      APPEARANCES OF COUNSEL

      Herman Schmertz for Suzellen Bergen, appellant.

      Robert X. Larkin for Marie Palmiotto, as executrix of Ann Messineo, appellant.

      David B. Hamm, Herbert Rubin, Noreen N. Giusti and William F. Jerome for respondent.
   OPINION OF THE COURT

Memorandum.

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

Walter Shapiro was insured under a comprehensive personal liability homeowner’s policy issued by Nassau Insurance Company, which is now in liquidation. The policy provided that Nassau would "pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence”. Occurrence was defined as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury [or death resulting from an injury] or property damage neither expected nor intended from the standpoint of the insured” (emphasis added). Excluded from coverage was injury or destruction "caused intentionally by any insured” (emphasis added).

On July 6, 1982, during the term of the policy, Shapiro shot two neighbors, seriously wounding Suzellen Bergen and killing Ann Messineo. Shapiro was indicted for second degree murder, second degree attempted murder and criminal possession of a firearm. He elected to be tried without a jury and raised only the affirmative defense of extreme emotional disturbance, a mitigatory rather than exculpatory approach. Shapiro was convicted of first degree manslaughter, attempted manslaughter and the weapons offense.

Bergen and Marie Palmiotto, as executrix of the estate of Ann Messineo, filed claims against Shapiro’s homeowner’s policy. The Superintendent of Insurance, as liquidator, disallowed the claims on the ground that Shapiro’s criminal conviction triggered and resolved, adversely to the claimants, the policy’s exclusion for intentional acts. Bergen then obtained summary judgment in a civil action against Shapiro based on the collateral estoppel effect of Shapiro’s criminal conviction. Palmiotto had a separate civil suit pending against Shapiro. After Bergen obtained summary judgment, Bergen, Palmiotto and Shapiro executed a stipulation as to damages resolving both suits.

Claimants then brought a proceeding in Supreme Court to declare Nassau’s responsibility under the policy to pay the judgments. The court-appointed Referee ruled against claimants based on collateral estoppel and recommended that the Superintendent’s disallowance decision be sustained and the claims dismissed. Supreme Court denied the Superintendent’s motion to confirm the Referee’s report and granted the claimants’ cross motions to disaffirm. It concluded that a finding of intent in a criminal context is not dispositive in determining whether an act was "intentional” for insurance coverage purposes, and refused to collaterally estop the claimants from relitigating the issue of Shapiro’s intent. The Appellate Division reversed and confirmed the Referee’s report. This Court granted leave to appeal to the claimants and we now affirm.

Shapiro’s conviction for first degree manslaughter and attempted manslaughter necessarily embraces the salient element of those crimes, which is intent to cause the death of another person. The identical issue is at the core of this insurance coverage dispute. Thus, the criminal finding of intent is conclusive, for purposes of determining whether their injuries and death are excluded from coverage under the Nassau policy because they were "intended or expected” or "caused intentionally”, as those terms are used in the policy at issue (see, D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; compare, Allstate Ins. Co. v Zuk, 78 NY2d 41 [decided today]).

Claimants argue that the D'Arata collateral estoppel rationale does not apply to this case because the evidence of Shapiro’s mental disability introduced at the criminal trial negates the "identical issue” requirement for application of collateral estoppel. That Shapiro successfully proved by a preponderance of the evidence in the criminal proceeding that he acted under the influence of extreme emotional disturbance, however, does not nullify the collateral estoppel effect of the finding of criminal manslaughter intent. Extreme emotional disturbance, unlike insanity, only mitigates criminal responsibility by reducing murder to manslaughter in the first degree. It does not in any way affect the factual finding of intent. Rather, it merely explains the defendant’s intentional actions and, if the fact finder accepts the affirmative defense and convicts of the lesser intent crime, confirms beyond a reasonable doubt that the defendant nevertheless acted intentionally (People v Patterson, 39 NY2d 288, 302).

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

Order affirmed, with costs, in a memorandum.


text:
    Adele Lemlek, Respondent, v Robert M. Israel, Appellant, and Hospital for Joint Diseases Orthopedic Institute, Respondent.
    Argued April 25, 1991;
    decided June 11, 1991

      APPEARANCES OF COUNSEL

      George D. Salerno for appellant.

      Albert E. Silbowitz and Sebastian Randazzo for Adele Lemlek, respondent.

      Howard R. Cohen and Maureen C. O’Neill for Hospital for Joint Diseases Orthopedic Institute, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant Israel against plaintiff, by ordering a new trial as to damages, and, as so modified, affirmed, with costs to defendant Hospital for Joint Diseases Orthopedic Institute against defendant Israel.

The Appellate Division correctly held that the jury’s findings of liability on the part of defendant Israel and no liability on the part of defendant hospital were sufficiently supported by the evidence, but that the finding of comparative fault on the part of plaintiff was without support in the record.

Nevertheless, a new trial on the issue of damages is required because the trial court erroneously instructed the jury that it could award damages for loss of enjoyment of life separately from any award of damages for pain and suffering (see, McDougald v Garber, 73 NY2d 246; Nussbaum v Gibstein, 73 NY2d 912).

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

Order modified, etc.


text:
    Joseph R. Tonkery, Respondent, v Vincent J. Martina, Appellant.
    Decided June 11, 1991

      APPEARANCES OF COUNSEL

      Kevin P. Bradley for appellant.

      David A. White for respondent.
   OPINION OF THE COURT

Memorandum.

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

The parties signed a three-year option agreement for the purchase of real property. They agreed that the purchase price was to be either the sum offered by a bona fide third-party purchaser, or, in the alternative, the price fixed by three appraisers. The option also set forth the manner in which the appraisers were to be selected. The appellant argues that this option is indefinite and unenforceable because it does not specify how the appraisers are to determine the amount of the purchase price.

Based on our holdings in Cobble Hill Nursing Home v Henry & Warren Corp. (74 NY2d 475) and Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp. (78 NY2d 88 [decided today]), we disagree and hold that the option at issue here is not void for indefiniteness. The terms of the option indicate clearly that the parties both intended to commit the calculation of price to a third party and agreed to be bound by the result. The parties never agreed to agree on a purchase price in the future, but instead tied the price of the parcel to an extrinsic event — either the price offered by a bona fide purchaser or that set by appraisal — and, additionally, provided the method for selection of appraisers. We conclude that this "provides an objective standard that renders the * * * [option] definite and enforceable” (Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., supra, at 94; see also, Martin Delicatessen v Schumacher, 52 NY2d 105, 109).

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

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


text:
    In the Matter of Joseph J. Bennetti et al., Appellants, v City of New York et al., Respondents.
    Argued April 26, 1991;
    decided June 11, 1991

      APPEARANCES OF COUNSEL

      Kenneth E. Gordon for appellants.

      Victor A. Kovner, Corporation Counsel (Patrick L. Taylor and Pamela Seider Dolgow of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioners, approximately 225 New York City firefighters hired after July 1, 1988, commenced this article 78 proceeding challenging respondents’ implementation of a decision of an impasse panel which had been appointed to settle a collective bargaining dispute between petitioners’ union and the City of New York. Specifically, petitioners argued that since section 15-107 of the Administrative Code of the City of New York established a salary grade structure whereby newly hired firefighters would reach top pay grade after three years of service, respondents lacked the power to implement that part of the impasse panel’s decision which increased that period to five years, without first having section 15-107 amended. We conclude that the courts below properly rejected this contention.

Although petitioners concede that statutory provisions such as section 15-107 may, as a general matter, be freely waived by the parties to a collective bargaining agreement (see, Schacht v City of New York, 39 NY2d 28, 32; Matter of Wiener v Board of Educ., 90 AD2d 832, 833; Antinore v State of New York, 49 AD2d 6, 10, affd 40 NY2d 921), they nevertheless contend that section 12-311 (c) (3) (e) of the code requires that legislative "approval” be obtained before an impasse panel decision purporting to override such a provision may be implemented. We cannot agree.

A comparison of section 12-311 (c) (3) (e) with section 201 (12) of the Civil Service Law clearly demonstrates that the former was merely designed to ensure that legislative "approval” of an impasse panel decision would be required if such "approval” would have been necessary had a negotiated collective bargaining agreement been involved (compare, Administrative Code § 12-311 [c] [3] [e] [applicable to impasse panel decisions], with Civil Service Law § 201 [12] [applicable to negotiated collective bargaining agreements]). Accordingly, since petitioners concede that legislative "approval” would not have been required had the salary grade structure set forth in section 15-107 been modified through a negotiated collective bargaining agreement, their contention that section 12-311 (c) (3) (e) nevertheless mandates that such "approval” should have been obtained here, must be rejected.

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

Order affirmed, with costs, in a memorandum.

      . Section 12-311 (c) (3) (e) of the Administrative Code of the City of New York provides that "any provisions of [the impasse panel’s] award the implementation of which requires the enactment of a law shall not become binding until the appropriate legislative body enacts such law.”

      . Section 201 (12) of the Civil Service Law provides that a collective bargaining agreement which has been negotiated between the parties "becomes a binding contract, for the period set forth therein, except as to any provisions therein which require approval by a legislative body, and as to those provisions, shall become binding when the appropriate legislative body gives its approval.”


text:
    The People of the State of New York, Respondent, v Derek Smith, Appellant.
    Decided June 11, 1991

      APPEARANCES OF COUNSEL

      James Rothe for appellant.

      Gerald F. Mollen, District Attorney (Joann Rose Parry 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. The reasonableness of the police officers’ actions presents a mixed question of law and fact and is supported by evidence in the record. This issue is thus beyond this Court’s further review.

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


text:
    Daisy Berman et al., Respondents, v Congregation Beth Shalom et al., Appellants.
    Submitted May 6, 1991;
    decided June 11, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of the Arbitration between Marilyn L. Herskovitz, Respondent, and L.B. Kaye Associates, Ltd., Appellant.
    Submitted May 20, 1991;
    decided June 11, 1991
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]; 2103 [b] [2]).


text:
    In the Matter of Alfredo S., Respondent, v Nassau County Department of Social Services, Appellant.
    Submitted April 29, 1991;
    decided June 11, 1991
   Motion to dismiss appeal taken as of right granted and appeal dismissed, without costs, upon the ground that the dissents at the Appellate Division are not on a question of law (CPLR 5601 [a]). Motion to vacate stay denied.


text:
    The People of the State of New York, Appellant, v Mildred Jackson, Respondent.
    Argued April 26, 1991;
    decided June 13, 1991
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Patrick J. Hynes and Mark Dwyer of counsel), for appellant.

      Marianne Karas for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to that court for a determination of the facts (see, CPL 470.40 [2]) and consideration of issues not reached on the appeal to that court.

Defendant’s claim that the People failed to produce certain Rosario material, pertinent to the videotaped testimony of a witness thereafter deported, is not preserved for our review. When defense counsel brought the People’s omission to the attention of the Wade hearing Judge, he told her that his jurisdiction extended only to the Wade hearing, that the appropriate objection would have to be made before the trial court, and that he would allow her to return forthwith to the Trial Judge to do so. While acknowledging the court’s limited role, defense counsel responded that she wanted only to record when she received the material. Thereafter, at a CPL 670.20 hearing and at trial, defense counsel made several motions— some of them relating directly to the videotaped testimony— but she did not at any time raise the Rosario issue. Thus, neither the trial court nor the hearing court was ever asked or given the opportunity to determine whether the material had previously been delivered, or what the appropriate remedy should be if it had not.

Defendant’s failure to object at a time when any Rosario violation could have been redressed — as, for example, by excluding the videotaped testimony — constituted a failure to preserve the issue for appellate review.

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

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


text:
    The People of the State of New York, Respondent, v Steve Rivera, Appellant.
    Argued April 25, 1991;
    decided June 13, 1991

      APPEARANCES OF COUNSEL

      Wendy N. Davis and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Karen Swiger and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During the Wade-Mapp hearing held immediately before defendant’s trial, defense counsel questioned whether he had been given all of the Rosario material pertaining to the arresting officer’s testimony. Specifically, counsel called the court’s attention to an unexplained reference in the file to a "note” that was apparently prepared in connection with the "DA write-up.” The prosecutor surmised that the note in question was "part of the attorney work product” and was not Rosario material, but the court directed him to make further inquiries to determine the precise nature of the note.

Defense counsel made no further requests in connection with the note before the close of the Wade-Mapp hearing. He neither asked for a short adjournment of the hearing or a postponement of the court’s final decision nor expressed an interest in reserving his right to request a reopening of the hearing in the event that the prosecutor’s inquiries revealed the existence of additional pertinent Rosario material. Consequently, the hearing went forward, and the court issued its decision denying suppression without further mention of the potential Rosario problem.

Inasmuch as defense counsel failed to request specific relief during the Wade-Mapp hearing, when the court had an opportunity to prevent the harm of which defendant now complains, defendant is now foreclosed from arguing in this Court that his Rosario rights were violated by the prosecutor’s failure to turn over the note before the close of the hearing (see, CPL 470.05 [2]). Accordingly, we have no occasion to consider whether the prosecutor’s belated production of the note would have required a new Wade-Mapp hearing without regard to the resulting prejudice (see, People v Jones, 70 NY2d 547). Similarly, we do not consider whether, if a showing of prejudice were required, the trial court’s speculative conclusion that the outcome of the hearing would not have been affected was a relevant consideration in the prejudice inquiry (see, People v Ranghelle, 69 NY2d 56).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Peter Thomas, Respondent.
    Argued May 29, 1991;
    decided June 13, 1991
   Appeal dismissed upon the ground that the reversal by the Appellate Division 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]).

Judge Titone taking no part.


text:
    Cordia Beverley, Respondent, v Choices Women’s Medical Center, Inc., Appellant.
    Submitted April 15, 1991;
    decided June 13, 1991
   Motion for leave to appeal by defendant granted. Cross motion, insofar as it seeks to dismiss defendant’s appeal taken as of right, granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no substantial constitutional question is directly involved; cross motion, insofar as it seeks to amend the judgment of Supreme Court, entered May 26, 1989, regarding interest on the damages award, dismissed upon the ground that such motion does not lie in the Court of Appeals.


text:
    Dan’s Supreme Supermarkets, Inc., Respondent, v Plymouth Realty Co., Appellant.
    Submitted April 8, 1991;
    decided June 13, 1991
   Motion to leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Carla Gottlieb, Appellant, v 47th Street Photo, Respondent.
    Submitted May 13, 1991;
    decided June 13, 1991
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie (NY Const, art VI, § 3 [b]; CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    Frank Iacovelli, Jr., et al., Appellants, v John Schoen, Respondent.
    Submitted May 27, 1991;
    decided June 13, 1991
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see, Cohen and Karger, Powers of the New York Court of Appeals § 21, at 87). Motion for a stay dismissed as academic.


text:
    In the Matter of the Estate of Eugene P. Kelly, Deceased. Anthony Mastroianni, Appellant; United States Tax Division, Department of Justice, et al., Respondents.
    Submitted May 20, 1991;
    decided June 13, 1991
   Appeal from the Appellate Division’s February 14, 1989 order dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not a party aggrieved by that order.

Appeal from the Appellate Division’s February 5, 1990 order dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Juliet Levin et al., Appellants, v Colonial Penn Insurance Company, Respondent.
    Submitted February 19, 1991;
    decided June 13, 1991
   Motion for reargument denied. Cross motion for sanctions denied. [See, 77 NY2d 831.]


text:
    Madison Lexington Venture, Appellant, v Thomas Crimmins Contracting Company, Respondent. (And Another Action and a Third-Party Action.)
    Submitted April 8, 1991;
    decided June 13, 1991
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s July 15, 1988 order, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and disbursements necessary for reproduction of affirmation in opposition only.


text:
    Ram P. Manwani, Appellant, v David Schonzeit et al., Respondents.
    Submitted May 20, 1991;
    decided June 13, 1991
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [6], [7]; CPLR 5602 [a]).


text:
    The People of the State of New York ex rel. George Sassower, Appellant, v Sheriff of Suffolk County, Respondent.
    Submitted April 22, 1991;
    decided June 13, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for a stay dismissed as academic.


text:
    Edwin C. Stokes et al., Appellants, v Village of Wurtsboro, Respondent.
    Submitted April 22, 1991;
    decided June 13, 1991
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying leave to appeal to the Court of Appeals, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.


text:
    Travelco, Inc., Appellant, v Chain Locations of America, Inc., et al., Respondents, et al., Defendant.
    Submitted April 22, 1991;
    decided June 13, 1991
   Motion for leave to appeal as against defendant Chain Locations of America, Inc. dismissed upon the ground that the order sought to be appealed from, as to that defendant, does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and disbursements necessary for reproduction of affirmation in opposition only.


text:
    The People of the State of New York ex rel. Dennis F. Vilella, Petitioner, and George Sassower, Appellant, v Warden, Sing Sing Correctional Facility, Respondent.
    Submitted April 22, 1991;
    decided June 13, 1991
   On the Court’s own motion, appeal, insofar as it is taken as of right on behalf of George Sassower, dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question; appeal, insofar as it is taken as of right on behalf of Dennis Vilella, dismissed, without costs, upon the ground that George Sassower is not a representative authorized to prosecute the appeal. Motion for a stay dismissed as academic.


text:
    In the Matter of Paul Coniglio, Respondent, v Dan Falasco, as Commissioner of the Department of Planning and Development of the Town of Babylon, et al., Appellants.
    Submitted April 1, 1991;
    decided June 13, 1991
   Motion for leave to appeal denied. Cross motion for sanctions denied.


text:
    The People of the State of New York, Respondent, v Lena Tychanski, Appellant.
    Argued May 31, 1991;
    decided June 27, 1991

      APPEARANCES OF COUNSEL

      Walter J. Evans, Jr., and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Joan P. Sullivan and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of reckless endangerment in the second degree (Penal Law § 120.20), a class A misdemeanor, after a jury trial. Defendant, a hospital volunteer, disconnected the life support of an AIDS patient in the belief that he had been healed by prayer. Although she was arraigned on a felony complaint charging her with reckless endangerment in the first degree, the Grand Jury filed an indictment charging defendant with the misdemeanor of second degree reckless endangerment.

Defendant argues on appeal that the People were required to be ready for trial within 90 days of the filing of the misdemeanor indictment. CPL 30.30 (5) (c) provides that "where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor’s information or misdemeanor complaint pursuant to article 180 or a prosecutor’s information is filed pursuant to section 190.70, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument.” CPL 30.30 (1) (b) provides that the People must be ready for trial within 90 days of the commencement of a criminal action in which the underlying offense is a misdemeanor punishable by a sentence of imprisonment of more than three months. The People contend that because the defendant was arraigned on a felony complaint which was replaced with a misdemeanor indictment — an accusatory instrument not specified in CPL 30.30 (5) (c) — they had six months to answer ready for trial (see, CPL 30.30 [1] [a]). The Trial Judge and the Appellate Division held that the six-month period was applicable, and we now affirm.

The language of CPL 30.30 (5) (c) omits misdemeanor indictments from the list of accusatory instruments that will trigger the application of the shorter 90-day speedy trial period. Despite this omission, defendant argues that the Legislature intended to make a distinction for speedy trial purposes between felonies and lesser offenses and that, consequently, the 90-day period should apply when a felony complaint is replaced with a misdemeanor indictment. This, however, is contrary to the clear language of the statute. We have held that a statute " 'must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise’.” (Parochial Bus Sys. v Board of Educ., 60 NY2d 539, 548-549, quoting Lawrence Constr. Corp. v State of New York, 293 NY 634, 639.)

Further, we cannot assume, as defendant urges, that the Legislature’s failure to list misdemeanor indictments along with the other accusatory instruments enumerated in CPL 30.30 was unintentional. "The failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended” (Pajak v Pajak, 56 NY2d 394, 397, citing McKinney’s Cons Laws of NY, Book 1, Statutes § 74). The Legislature did not provide for the contingency that is the subject of this appeal and we must conclude that its failure in this regard was deliberate. Thus, because this action was commenced by defendant’s arraignment on a felony complaint, and because CPL 30.30 (5) (c) is inapplicable, the People had six months in which to be ready for trial. Defendant was therefore not deprived of her right to a speedy trial.

We have considered defendant’s remaining argument, and we find it to be without merit.

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

Order affirmed in a memorandum.


text:
    Thomas F. Campanile, Jr., Respondent, v State Farm General Insurance Company, Appellant.
    Argued May 30, 1991;
    decided June 27, 1991

      APPEARANCES OF COUNSEL

      Martin S. Rotham and Alyne I. Diamond for appellant.

      Steven McQuide for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (161 AD2d 1052).

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


text:
    The People of the State of New York, Respondent, v Rene Sharp, Appellant.
    Argued June 4, 1991;
    decided June 27, 1991

      APPEARANCES OF COUNSEL

      Adrienne M. Gantt and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Leonard /. Picker and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum of the Appellate Division (163 AD2d 73).

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


text:
    In the Matter of Gary L. Shirley, as Building Inspector of the Town of Brighton, Respondent, v Edwin Schulman, Appellant.
    Argued May 31, 1991;
    decided June 27, 1991

      APPEARANCES OF COUNSEL

      Stanley A. Gordon for appellant.

      Warren B. Rosenbaum, Deputy Town Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be reversed and defendant’s motion to dismiss granted.

Defendant was served with a "notice of violation” and a "complaint violation” charging him with a breach of the town’s zoning ordinance (see, Town of Brighton Zoning Code § 42-11). Violation of the zoning ordinance is by statute a criminal act (see, Town Law § 268; Town of Brighton Zoning Code § 42-34). Therefore, although documents having the above descriptions are not designated as accusatory instruments in the CPL, a charge under the zoning ordinance necessarily presupposes a criminal action. The parties do not contend otherwise. A criminal action must be commenced by the filing of valid and sufficient accusatory instruments in order for the court to obtain jurisdiction over the matter (see, CPL 100.05; People v Scott, 3 NY2d 148). Treating the instruments served upon defendant as accusatory instruments under article 100 of the CPL, we conclude that they fail to satisfy the requirements set forth in CPL 100.15 and CPL 100.30.

CPL 100.15 requires the accusatory instrument to be verified by the complainant. CPL 100.30 requires that such verification be made either by having the instrument sworn before the court, a notary public, or other designated officers, or by including in it a form notice warning that any false statement made therein is punishable as a class A misdemeanor. Inasmuch as neither the notice of violation nor the complaint violation was verified pursuant to CPL 100.30, they were not valid as accusatory instruments. The action therefore must be dismissed (see, People v Scott, supra). In light of this disposition, we find it unnecessary to reach the other issues raised on appeal.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Talisha Simmons, Appellant, v Emanuel P. Popolizio, as Chairman of the New York City Housing Authority, et al., Respondents.
    Argued May 30, 1991;
    decided June 27, 1991

      APPEARANCES OF COUNSEL

      Russell Engler, John C. Gray, Jr., David Pieragostini and Tracy Miller for appellant.

      Harry Steinberg and Suzanne M. Lynn for respondents.

      Stephen Myers for MFY Legal Services, amicus curiae.

   OPINION OF THE COURT

Order affirmed, without costs. Assuming without deciding that the article 78 proceeding is timely under CPLR 217, the June 17, 1988 determination sought to be reviewed cannot be said to constitute an abuse of discretion under the circumstances presented by this case.

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


text:
    New York State Association of Counties, Appellant, v David Axelrod, as Commissioner of the New York State Department of Health, Respondent.
    Submitted July 9, 1990;
    decided June 27, 1991
   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 granted.


text:
    Rimfa England et al., Respondents, v James Sanford, Appellant.
    Decided July 1, 1991

      APPEARANCES OF COUNSEL

      Jesse T Wilkins for appellant.

      Richard S. McGowan 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, and certified question answered in the affirmative. The Appellate Division did not abuse its discretion as a matter of law in granting plaintiffs’ motion for leave to amend their complaint. In the absence of such abuse, this Court has no power to review the grant of a discretionary remedy. Hence, the only remaining issue presented by the question certified is whether the Appellate Division had the power to grant the requested relief. We conclude that it had this power, and pass on no other issue.

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


text:
    The People of the State of New York, Respondent, v George Coutin, Appellant.
    Decided July 1, 1991

      APPEARANCES OF COUNSEL

      Steven A. Feldman and Arza Rayches Feldman for appellant.

      Robert M. Morgenthau, District Attorney (Gregory H. Mansfield of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant has been convicted of two counts of robbery in the second degree (Penal Law § 160.10). The only issue presented on this appeal is whether defendant’s motion to suppress the evidence found in the car should have been granted. Evidence in the record supports Supreme Court’s undisturbed findings and these findings provide a legally sufficient basis for the determination that the police officers had reasonable suspicion to stop the car occupied by defendant, reasonable concern for their safety in approaching the car with their weapons drawn and ordering defendant and the other occupants to alight, and probable cause to search the interior of the car for a weapon and evidence of the crime.

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


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v Wayne Hunt, Appellant.
    Argued May 31, 1991;
    decided July 1, 1991

      APPEARANCES OF COUNSEL

      Paul J. Connolly for appellant.

      James B, Canfield, District Attorney (Youel C. Smith, III of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (162 AD2d 782).

Concur: Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa. Judge Kaye dissents and votes to reverse in an opinion.

Kaye, J.

(dissenting). The issue presented in this case is the one we explicitly left open in Sailor, where the Court wrote that it was "unnecessary to decide in this appeal whether the prosecution may conduct more than one persistent felony offender or second offender hearing in the same sentencing proceeding after failing to prove the underlying convictions or conviction.” (People v Sailor, 65 NY2d 224, 236, cert denied 474 US 982.)

The second felony offender hearing in Sailor followed a persistent felony offender hearing, and this Court emphasized the wide discretion afforded the Judge at the persistent felony offender hearing in rejecting defendant’s double jeopardy challenge (65 NY2d, at 234). Such discretion is not afforded the Judge in the second felony offender hearing. If the prosecution proves beyond a reasonable doubt that defendant is a second felony offender, the Judge must impose the appropriate enhanced sentence (compare, CPL 400.20 [10], with CPL 400.21 [4], [7]; see also, Sailor v Scully, 836 F2d 118, 125). In addition, because of the standard of proof at the second felony offender hearing — beyond a reasonable doubt — the procedure resembles a trial (see, Arizona v Rumsey, 467 US 203, 212). By contrast, at a persistent felony offender hearing, matters relating to a defendant’s history and character, and the nature and circumstances of his criminal conduct, need only be established by a preponderance of the evidence (CPL 400.20 [5]). Thus, the issue raised in this case is not controlled by our decision in Sailor. The Court’s holding today enlarges Sailor.

Even apart from what I see as a constitutional infirmity, statutory law seems to prohibit the procedure here. CPL 400.21 (2) provides that "[w]hen information available to the court or to the people prior to sentencing for a felony indicates that the defendant may have previously been subjected to a predicate felony conviction, a statement must be filed by the prosecutor before sentence is imposed setting forth the date and place of each alleged predicate felony conviction” (emphasis added). Although this argument was not raised by defendant prior to sentencing, this language suggests that as a matter of statutory law, the prosecution should not be allowed repeated predicate felony offender hearings when it is aware of all prior crimes at the time of the original proceeding (see, Bullington v Missouri, 451 US 430, 445).

I would reverse and remit for resentencing.

Order affirmed, etc.


text:
    In the Matter of Mount Pleasant Cottage School Union Free School District, Appellant, v Thomas Sobol, as Commissioner of Education, Respondent.
    Argued June 5, 1991;
    decided July 2, 1991

      APPEARANCES OF COUNSEL

      Raymond G. Kuntz and Mario L. Spagnuolo for appellant.

      Charles E. O’Brien and Lizette A. Cantres for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (163 AD2d 715).

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


text:
    The People of the State of New York, Respondent, v Miguel Tejeda, Appellant.
    Decided July 2, 1991

      APPEARANCES OF COUNSEL

      Susan J. Feathers, Paul Liu and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Gregory L. Waples of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The proof was sufficient to establish physical injury by "impairment of physical condition” (Penal Law § 10.00 [9]). The complainant testified that defendant hit him on the forehead with the barrel of a pistol, causing a wound that bled profusely; photographs taken two weeks later were in evidence, showing a red, wishbone-shaped scar about one-half inch in diameter over the complainant’s right eye; and a scar was still visible at the time of trial more than four months later. We reject defendant’s contention that "impairment of physical condition” requires a victim’s incapacitation.

Defendant’s remaining contention also lacks merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa 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:
    Alfred Frontuto, Plaintiff, v Ray Burgun Trucking Company, Inc., et al., Defendants. Clifford Nickerson, Defendant and Third-Party Plaintiff-Appellant; James White, Third-Party Defendant-Respondent, et al., ThirdParty Defendants. (And Another Third-Party Action.)
    Decided July 2, 1991

      APPEARANCES OF COUNSEL

      Jane C. Hettrick for appellant.

      Amy J. Carroll for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff brought this negligence action to recover damages for injuries he sustained while removing a concrete base from a light standard. Third-party defendant White had purchased the light from defendant Nickerson. Plaintiff, who was a friend of White’s, agreed to transport the light from Nicker-son’s place of business to White’s, using White’s truck. While removing the concrete from the light in preparation for loading onto the truck, the light fell and injured plaintiff. He sued Nickerson for negligence, and Nickerson brought a third-party action for contribution and indemnity against White, alleging that White was vicariously liable as the owner of the truck pursuant to Vehicle and Traffic Law § 388 (1), and that plaintiff was White’s employee, agent or both. White moved for summary judgment dismissing Nickerson’s third-party complaint, arguing that his truck was not being "used or operated” at the time of the accident as required by the statute, and that plaintiff was not his employee or agent. Supreme Court denied the motion. The Appellate Division reversed and dismissed the third-party complaint. We now affirm.

Assuming without deciding that "use or operation” of a vehicle for purposes of Vehicle and Traffic Law § 388 (1) encompasses loading and unloading, plaintiff’s independent, preparatory and preliminary activity in removing the light from the concrete does not, as a matter of law, constitute loading. Therefore, it would not be a "use or operation” of White’s vehicle within the intendment or contemplation of Vehicle and Traffic Law § 388 (1).

We have considered appellant’s other argument and conclude it is without substance.

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

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


text:
    Estelle Cora, as President and Chief Executive Officer of the Spanish Camp Residents Association, et al., Respondents, and Salvatore Branciforte et al., Appellants, v Spanish Naturopath Society, Inc., Respondent.
    Submitted April 29, 1991;
    decided July 2, 1991
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying leave to appeal to the Court of Appeals, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.

Judge Titone taking no part.


text:
    Dicini, Inc., Respondent, v William Hengerer Company, Respondent, and C.F. Air Freight, Inc., Appellant.
    Submitted May 6, 1991;
    decided July 2, 1991
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the order of Supreme Court denying a motion to vacate, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Willie J. Downs, Jr., Appellant, v William L. Maher et al., Respondents.
    Submitted May 6, 1991;
    decided July 2, 1991
   Motion, insofar as it seeks leave to appeal from the October 18, 1990 Appellate Division order denying reargument, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the November 9, 1990 order of an Appellate Division Justice denying permission to appeal pursuant to CPL 460.20, dismissed upon the ground that no civil appeal lies to the Court of Appeals from the order entered in a criminal proceeding (CPLR 5602; CPL 450.90); motion for leave to appeal otherwise denied.


text:
    Katherine Gargiulo, Appellant, v Robert G. Gargiulo, Respondent.
    Submitted May 20, 1991;
    decided July 2, 1991
   Motion to dismiss appeal taken as of right granted, and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for sanctions denied.