text:
    Charlotte C. Voorhis, Appellant, v Consolidated Rail Corporation, Respondent.
    Argued October 18, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

      Robert S. Stitt and Paul V. Nunes for appellant.

      Cora T. Walker and Lawrence R. Bailey, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

Whether the usher, Pereira, was acting within the scope of his employment in agreeing to watch plaintiff’s suitcase, whether he did so agree and whether defendant through Pereira was guilty of gross negligence, were, under the testimony presented, questions of fact for the jury.

The bailment, if found by the jury, would constitute defendant only a gratuitous bailee, liable only for gross negligence. But even as to a gratuitous bailee the failure to return the object bailed establishes a prima facie case of gross negligence, requiring the bailee to come forward with an explanation (Dalton v Hamilton Hotel Operating Co., 242 NY 481, 488; Hasbrouck v New York Cent. & Hudson Riv. R.R. Co., 202 NY 363, 374). Defendant presented no testimony, but there was evidence concerning what happened to plaintiff’s suitcase in the form of the deposition of Pereira, read by plaintiff, and the report of defendant’s Police Officer Lennon, offered by defendant. In his deposition Pereira denied any knowledge of what happened to the suitcase, and Lennon’s report only indicates that Pereira stated “that he had been called away during the course of watching same and when he returned said property was found missing.”

From that evidence the jury could, but was not required to, infer that the suitcase had been stolen and that Pereira had been guilty of gross negligence in leaving the suitcase unattended. The burden of proof, and the burden of going forward, once a theft has been established, rests upon plaintiff bailor, however (Castorina v Rosen, 290 NY 445; Claflin v Meyer, 75 NY 260; Mays, Inc. v Hertz Corp., 15 AD2d 105; Fidelity & Guar. Ins. Corp. v Ballon, 280 App Div 373). It was not error, therefore, to deny plaintiff’s request for a directed verdict on the issue of gross negligence.

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    June Rosner, Respondent, v Mildred Caplow et al., Appellants, and Jeffrey Wachtel et al., Respondents.
    Argued October 17, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

      James P. Dollard, Jr., and Louis Haimoff for appellants.

      Philip R. Forlenza for June Rosner, respondent.

      Katharine A. Rundle for Jeffrey Wachtel and others, respondents.
   OPINION OF THE COURT

Order affirmed, with costs payable out of the trust to all parties appearing separately and filing separate briefs, for reasons stated in the opinion by Justice Leonard H. Sandler at the Appellate Division (90 AD2d 44).

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


text:
    In the Matter of New York State Association of Plumbing-Heating-Cooling Contractors, Inc., Respondent, v John E. Egan, as Commissioner of General Services of the State of New York, et al., Appellants, et al., Respondents.
    Argued October 19, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

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

      George F. Carpinello for New York State Association of Plumbing-Heating-Cooling Contractors, Inc., respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (86 AD2d 100).

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


text:
    In the Matter of Marine Midland Properties Corporation, Respondent, v Robert Z. Srogi, as Commissioner of Assessment of the City of Syracuse, Appellant.
    Argued October 19, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

      David M. Garber, Corporation Counsel (Jan S. Kublick of counsel), for appellant.

      John R. Varney and William L. Allen, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner brought this proceeding to challenge the 1975 through 1979 tax assessments on its bank and office building, which was leased to petitioner’s affiliate. The dispute centers on whether, in applying the income capitalization method, the actual rent charged, or some lower figure, should be used as a basis for determining the value of the property. Petitioner’s expert arrived at the fair market rental by an analysis of the leases of several similar facilities in the city. The city’s expert, on the other hand, used the higher, actual rent charged by petitioner to its tenant, purportedly finding support for his analysis in a comparison with rents charged to other branch banks in the area.

The trial court rejected petitioner’s calculation of fair market rental and adopted the city’s analysis. The Appellate Division modified the'judgment, declining to apply actual rental because it found the rent charged in this instance to be a computation of the cost of carrying the property, with no relation to fair market rental. Instead, the court accepted petitioner’s evidence of true rental value. Performing its own computations, the court arrived at a property value somewhat above petitioner’s final figure but well below the city’s.

Where the Appellate Division reverses the findings of value made by the trial court and makes new findings, this court may choose between the two by determining which is in accord with the weight of the evidence. (Grant Co. v Srogi, 52 NY2d 496, 510-511.) We conclude that the findings of the Appellate Division more nearly comport with the weight of the evidence.

Actual rent may be indicative of fair market rental, but is not necessarily so where the rent has been arbitrarily set, as may be the case between a landlord and tenant who are affiliated companies. (See Matter of Merrick Holding Corp. v Board of Assessors, 45 NY2d 538, 543.) The weight of the evidence here supports the Appellate Division’s conclusions that the rent charged by petitioner to its tenant was influenced by factors having no relation to market value and that the comparable rents relied upon by the city lacked probative value.

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

Order affirmed, with costs, in a memorandum.


text:
    I. Janvey & Sons, Inc., Respondent, v County of Nassau et al., Respondents, and Halbro/Control Industries, Inc., Appellant.
    Argued October 19, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

      Jack E. Hollenberg and Bruce H. Belsky for appellant.

      A. Thomas Levin for I. Janvey & Sons, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Special Term reinstated.

It was petitioner’s burden to establish that the contract had been improperly awarded to Halbro. The petition charged that Halbro’s bid failed to include required spectrophotometer prints and that its products did not meet performance standards. The papers submitted to Special Term established, however, that Halbro submitted prints as required by the bid notice and failed to indicate in what respects its products did not meet the bid specifications. Moreover, the bids having been solicited on the basis of Johnson products “or equal,” and petitioner having submitted bids for Johnson products, the conclusory statement of the county’s buyer that petitioner was the only vendor meeting specifications was not binding on the commissioner and was not sufficient to meet petitioner’s burden.

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

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


text:
    In the Matter of Barbara McVey, Appellant, v Marshall Papier, Respondent.
    Decided November 22, 1983
   On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    William Kobylack, Appellant, v Nancy Kobylack, Respondent.
    Submitted November 7, 1983;
    decided November 22, 1983
   Motion to dismiss the appeal herein denied.


text:
    Dianne Rubinstein, Appellant, v William J. Catacosinos et al., Respondents.
    Argued October 19, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

      Irving Bizar and Andrea R. Cohen for appellant.

      Alan R. Wentzel and Stephen J. King for William J. Catacosinos and others, respondents.

      Franklyn D. Kimball and W. Foster Wollen for Applied Digital Data Systems, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion by Justice Samuel J. Silverman at the Appellate Division (91 AD2d 445).

In so ruling, we deem it necessary to add the following comments. First, section 906 of the Business Corporation Law is not one of the enumerated laws specifically applicable to foreign corporations doing business in New York (Business Corporation Law, § 1319, subd [a]). Second, inasmuch as it is concluded that plaintiff had no standing to continue this shareholder’s derivative action, there is no occasion to decide whether liability for insider trading may be imposed against nonparticipating but acquiescing directors (cf. Diamond v Oreamuno, 24 NY2d 494, affg 29 AD2d 285). Last, it is noted that plaintiff did not seek to protect her rights by raising the claim she now makes through an appraisal proceeding.

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

Order affirmed, with costs, in a memorandum.


text:
    Vincent B. Brown, Appellant, v City of New York, Respondent, et al., Defendants.
    Argued October 24, 1983;
    decided November 23, 1983
    APPEARANCES OF COUNSEL

      Bernard Meyerson and Benjamin Rubenstein for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Richard P. Swanson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

■ These actions for false arrest and malicious prosecution arose out of plaintiff’s arrest on January 16, 1978 for endangering the welfare of a child, unlawfully dealing with a child, criminal facilitation, and sexual abuse. The complainant, a 15-year-old runaway, twice identified plaintiff as one of three men who had abducted her, raped her, and forced her to engage in prostitution. Plaintiff was arraigned on January 17, 1978. After two adjournments, the case was dismissed as the complaining witness had failed to appear.

In the instant action, the jury returned a verdict in favor of the City of New York on plaintiff’s claim for false arrest. The jury found for the plaintiff, however, on his malicious prosecution claim and awarded damages,

The Appellate Division reversed and dismissed the complaint on the ground that there were inconsistent verdicts, but defendant at trial did not raise timely objection to the jury’s decision. Although the Appellate Division denominated its reversal as “on the law,” inasmuch as the unpreserved error was reviewed by the Appellate Division, this court construes the reversal as an exercise of discretion which is beyond this court’s power to review (see Feinberg v Saks & Co., 56 NY2d 206, 210-211).

The only question properly before this court is whether dismissal of the complaint was proper. This corrective action would be appropriate in this case “only if there was no evidence at trial that the defendant, between the time of detention and the time of instituting the criminal proceeding against the plaintiff, had knowledge of some intervening fact exonerating plaintiff” (Feinberg v Saks & Co., supra, at p 211 [emphasis in original]). Viewing the record in the present appeal in the light most favorable to plaintiff,- there is no evidence from which the jury could reasonably infer that probable cause, held by police at the time of arrest, had dissipated by the time of arraignment some 24 hours later. Plaintiff relies on the assertion of an alibi at the time of arrest. Given the indefinite and insubstantial nature of the asserted alibi and complainant’s identification of plaintiff, no reasonable inference could be drawn to support a finding of malice.

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

Order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Curtis Creech, Respondent.
    Argued October 20, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney {Julie Copeland and Mark Dwyer of counsel), for appellant.

      Paula P. Smith and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s conviction reinstated, and the case remitted to that court to decide whether it be appropriate to consider the question within the exercise of its discretion and to consider questions of fact. (CPL 470.40, subd 2, par [b]; 470.25, subd 2, par [d].)

Inasmuch as there was no objection at trial to the failure to charge on the presumption of innocence, the Appellate Division’s holding, that the omission in the charge necessitated a reversal of the conviction as a matter of law, was error requiring reversal and remittal to that court to permit, if it deems appropriate, the exercise of its discretionary powers to review the alleged error even in the absence of timely objection. (People v Cona, 49 NY2d 26; cf. People v Thomas, 50 NY2d 467, 4729

In view of the disposition thus mandated, it would be inappropriate for us to express any opinion as to defendant’s contention of error with respect to the failure of the trial court to charge the presumption of innocence where a proper request is not made.

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

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


text:
    Donald Brown, Respondent, v City of New York et al., Appellants.
    Argued October 18, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

      Frederick A. 0. Schwarz, Jr., Corporation Counsel (.Michael Gage and Leonard Koerner of counsel), for appellants.

      Stephen R. Mahler and Stephen Harris for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division appealed from and the prior order of that court brought up for review should be reversed, with costs, and the May 12, 1980 order of Supreme Court, Queens County, reinstated.

It was error for the Appellate Division to have applied issue preclusion against defendant City of New York in this civil action for false arrest, false imprisonment and assault based on the dismissal of a criminal charge against defendant for resisting arrest which was prosecuted by the Queens County District Attorney. Identity of parties, an essential element for application of the doctrine of issue preclusion or collateral estoppel, was lacking here so that the determination made in the criminal case on the issue of the unlawfulness of plaintiff’s arrest could not be held to bar the city from contesting the issue in the civil action. The city and the District Attorney are separate entities and, unlike the situation in People ex rel. Dowdy v Smith (48 NY2d 477, 482), do not stand in sufficient relationship to apply the doctrine.

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

Order appealed from and order brought up for review reversed, with costs, and the May 12, 1980 order of Supreme Court, Queens County, reinstated in a memorandum.


text:
    The People of the State of New York ex rel. Ronald Miller, Respondent, v Wilson Walters, III, as Warden, Ossining State Prison, et al., Appellants.
    Argued October 26, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

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

      Kenneth J. Kaufmann for respondent.
   opinion of the court

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court reinstated.

A final revocation hearing was held on May 19, 1982, within the 90-day period prescribed by the statute (Executive Law, § 259-i, subd 3, par [f], cl [i]), in consequence of which relator’s parole was revoked. No challenge is now addressed to that determination. Inasmuch as on his return from California, on March 23,1982 relator waived his right to a preliminary parole revocation hearing, he thereby effectively waived his right to challenge the board’s failure to afford him a timely preliminary hearing as well as his right to relief in consequence of its failure to do so. The writ of habeas corpus should therefore be dismissed.

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

Order reversed, without costs, and judgment of Supreme Court, Westchester County, reinstated in a memorandum.

       Relator has not shown that at the time he had, or had requested, counsel in New York.


text:
    Bermont Operating Corp., Appellant, v City of New York, Respondent.
    Decided November 23, 1983

      APPEARANCES OF COUNSEL

      Robert S. Powers for appellant.

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

Memorandum.

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

The Appellate Division properly found that the parties had manifested their assent to a renewal lease with a term commencing on March 3, 1979. Plaintiff, having executed and returned four copies of a Board of Estimate resolution which expressly recited that commencement date and which had been transmitted with a letter advising that signing the resolution would constitute the lease renewal agreement, expressed its intent by its actions. When this execution of the agreement is viewed in combination with plaintiff’s acceptance of the reduced rental amount provided under the renewal lease, it becomes apparent that there was mutual assent to a March 3, 1979 commencement provision. Plaintiff’s letter of September 17, 1979 expressing its understanding of the commencement time could thus be disregarded.

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

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


text:
    The People of the State of New York, Respondent, v John L. Hauswirth, Appellant.
    Argued October 24, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

      Paul R. Shanahan for appellant.

      Richard A. Hennessy, Jr., District Attorney {John A. Cirando and Michael P. Marmor of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in that portion of the opinion by Justice James H. Boomer at the Appellate Division (89 AD2d 357) which holds that the defendant’s right to counsel had not attached under the State Constitution at the time of the telephone conversation.

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


text:
    Katherine Calloway et al., Appellants, v National Services Industries, Inc., Doing Business as Six Gun Territory, Respondent.
    Argued October 25, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

      Alfred Julien, Leonard L. Finz and David B. Turret for appellants.

      Walter T. Reardon and Vincent M. Sclafani for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (93 AD2d 734; see Rich v Lefkovits, 56 NY2d 276, 279).

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


text:
    Colleen Ruane et al., Appellants, v Niagara Falls Memorial Medical Center, Respondent, et al., Defendant.
    Argued October 27, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

      Thomas V. Hagerty for appellants.

      Andrew D. Merrick and Gerald J. Hubbard for respondent.
   OPINION OF THE COURT

Memorandum.

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

On appeal to this court the plaintiff’s only contention is that the alleged continuous treatment by her personal physician should be attributed to the hospital. The fact that the doctor also happened to be affiliated with the hospital, but not employed by the hospital, is not alone sufficient to impute the doctor’s conduct following the implantation of the devices to the hospital. Because no other circumstances were demonstrated the complaint against the hospital was properly dismissed (cf. McDermott v Torre, 56 NY2d 399). We find no legal basis for concluding, as plaintiff urges, that although the relationship between the doctor and the hospital may not be sufficient to impute the doctor’s continuous treatment to the hospital for the purpose of assessing liability, it may nevertheless serve as a basis for extending the Statute of Limitations.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Carlos Rivera, Respondent.
    Argued October 21, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney {Nikki Kowalski and Barbara D. Underwood of counsel), for appellant.

      Mary Falk Horwitz and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that court for determination of the facts.

The Appellate Division held that defendant’s wife’s consent to entry of the apartment by the police was involuntary as a matter of law and that, in consequence, the gun should be suppressed and the indictment dismissed. Although in doing so it made findings additional to those made by the suppression Judge, its holding was that the People had failed to meet their burden of establishing voluntary consent as a matter of law, that is to say, that under no view of the evidence in the record could it be found to be voluntary.

The Appellate Division order was, therefore, based upon a determination of law. Because we conclude that that determination was in error and our power of review is limited to that question of law, the appeal is not subject to dismissal. Rather the case must be remitted to the Appellate Division for determination of the facts pursuant- to CPL 470.40 (subd 2, par [b]) (People v Palumbo, 49 NY2d 928; see People v Cona, 49 NY2d 26).

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

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


text:
    New York Board of Fire Underwriters, as Authorized Representative of Various Insurance Companies and as Subrogee of the People of the State of New York, Appellant, v Trans Urban Construction Co., Inc., and Lasker-Goldman Corporation, a Joint Venture, Respondent, et al., Defendants. Trans Urban Construction Co., Inc., and Lasker-Goldman Corporation, a Joint Venture, Third-Party Plaintiff-Respondent, v Central Lathing Co., Inc., Third-Party Defendant-Respondent.
    Argued October 24, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

      Bernard Meyerson for appellant.

      Frederick D. Berkon and Richard B. Kelsky for respondent.

      Anthony J. McNulty and James G. Barron for Central Lathing Co., Inc., third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

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

A contractor named with the State as parties insured “as their interests may appear” in builder’s all-risk insurance policies procured by the State, and who is obligated under its contract with the State to repair or replace any damage to the building without cost to the State, is an insured under such policies with respect to damage to the building by windstorm, a covered risk. That a contributing cause of the loss may have been negligence on the part of the contractor, a risk covered by the contractor’s comprehensive general liability policy, does not affect the obligation of the insurers to the contractor under the builder’s all-risk policies.

It follows that the insurers under the all-risk policies may not recover from the contractor in a subrogation action. Tishman Co. v Carney & Del Guidice (34 NY2d 941) is not to the contrary. It held only that under the policy involved in that case the subcontractor’s insurable interest “was limited to its property interest in the building under construction — i.e., the tools, labor and material furnished or owned by the defendant” and that the insurer’s subrogation action was, therefore, maintainable because “no part of the damages alleged by the plaintiff in this litigation was for destruction of any property owned or furnished by the defendant” {id., pp 942-943). Here the contrary is the fact.

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

Order affirmed, with costs, in a memorandum.


text:
    Lisa Springer, Appellant, v Viking Press et al., Respondents.
    Argued October 26, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

      Myles C. Cunningham for appellant.

      Richard Kurnit and Martin Garbus for respondents.

      R. Bruce Rich, Lauren W. Field and Lois Peel Eisenstein for Association of American Publishers, Inc., amicus curiae.

   opinion of the court

Memorandum.

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

Whether chapter 10 of the book “State of Grace” defamed plaintiff is the only issue before us. We agree with the Appellate Division that whether the complaint sufficiently alleges that the Lisa Blake, portrayed in that chapter as a whore, refers to plaintiff is a matter for the court, and that the similarity of given name, physical height, weight and build, incidental grooming habits and recreational activities of plaintiff and Lisa Blake, a minor character in a work of fiction, are insufficient to establish that the publication was “of and concerning” plaintiff (Carlucci v Poughkeepsie Newspapers, 57 NY2d 883; Allen v Gordon, 56 NY2d 780, affg 86 AD2d 514; Sydney v MacFadden Newspaper Pub. Corp., 242 NY 208, 214; Lyons v New Amer. Lib., 78 AD2d 723, app withdrawn 53 NY2d 704).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Angelina Sinicropi, Appellant-Respondent, v Robert J. Bennett, as Deputy Director of Probation of the County of Nassau, et al., Respondents-Appellants .
    Argued October 21, 1983;
    decided November 23, 1983

      APPEARANCES OF COUNSEL

      William D. Friedman for appellant-respondent.

      Edward G. McCabe, County Attorney (.Robert O. Boyhan of counsel), for respondent-appellant.

      William M. Wallens for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Respondent’s determination to terminate appellant’s employment, which was supported by substantial evidence in the record and did not constitute a disproportionate penalty, was proper. (Matter of Pell v Board of Educ., 34 NY2d 222, 231-233.) Appellant is not entitled to termination pay because the collective bargaining agreement between respondent and her union provides that termination pay will not be awarded where termination of an employee is, as it was here, for cause. That agreement is binding upon appellant. (Antinore v State of New York, 49 AD2d 6, 10-11, affd 40 NY2d 921.) Respondent should pay appellant . the salary she would have earned for the period between the original termination decision (which was annulled) and the subsequent termination decision, less any compensation derived from other employment during that period and any unemployment insurance benefits received for that period. (Civil Service Law, § 75, subd 3; Matter of Amkraut v Hults, 21 AD2d 260, affd 15 NY2d 627.)

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

Order affirmed, without costs, in a memorandum. Question certified answered in the affirmative.


text:
    In the Matter of William J. White, Respondent, v New York State Division of Parole, Appellant.
    Decided November 23, 1983

      APPEARANCES OF COUNSEL

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

      Dennis A. Kaufman for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, while on parole in New York State, absconded to Mississippi where he was subsequently convicted of a crime and sentenced to a term of eight years’ imprisonment. On January 15, 1982, a parole violation warrant was lodged by respondent against petitioner. By letter dated February 1, 1982, petitioner advised respondent that he was waiving his right to a preliminary parole revocation hearing and his right to be present at the final hearing. Even though requested by petitioner to conduct the final hearing in his absence, respondent disregarded the request and instead corresponded with Mississippi officials for a period of four months in an effort to secure petitioner’s return to New York for a hearing. Respondent was eventually informed by the Mississippi officials that to secure petitioner’s release, it would have to arrange for the Governors of New York and Mississippi to execute an executive agreement whereby New York would agree to pay the cost of transporting petitioner to New York and to return him to Mississippi after the hearing. No further action was taken by either side until May, 1983 when petitioner was paroled in Mississippi and returned to New York.

On petitioner’s application made June 2, 1982, the parole violation warrant was annulled and vacated by Special Term, and the Appellate Division affirmed on the ground that respondent had not satisfied its burden of demonstrating that petitioner was not within its convenience and practical control, citing People ex rel. Gonzales v Dalsheim (52 NY2d 9). We affirm, but on a different ground.

Petitioner waived his rights to a preliminary hearing and to be present at the final hearing. Inasmuch as there is nothing in the record to indicate that such waiver was not made knowingly and intelligently, the waiver was effective and there was nothing to prevent respondent from proceeding in petitioner’s absence. Indeed, it was required to proceed. The failure to do so within the time period prescribed by the statute (Executive Law, § 259-i), requires that the parole violation warrant be dismissed. (People ex rel. Gonzales v Dalsheim, supra.) In view of this disposition, there is no need to consider whether and at what time petitioner came within respondent’s convenience and practical control for the hearing could have and should have been held in his absence.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs, in a memorandum.


text:
    Robert C. Shaw, Appellant, v Walter S. Russell et al., Defendants, and Marine Midland Bank, N. A., Respondent.
    Decided November 23, 1983

      APPEARANCES OF COUNSEL

      Ronald L. Newell and Garfield P. Raymond for appellant.

      Margaret T. Morovich for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division. A party to a foreclosure propeeding who appears and waives service of the papers but who reserves the right to receive notice of sale is entitled to service of such notice in the ordinary manner in which papers are to be served upon a party in a pending action (see CPLR 2103). Notice by publication pursuant to RPAPL 231 is insufficient to comply with that requirement.

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

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


text:
    In the Matter of Saje Biller, Appellant, v Simcha Felsenburg et al., Respondents.
    Submitted August 1, 1983;
    decided November 23, 1983
   Motion for leave to appeal dismissed upon the ground that the purported movant died before the motion was made and no representative had been appointed for him.


text:
    In the Matter of Daniel Cantor, Doing Business as Haven Manor Health Related Facility, Respondent-Appellant, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants-Respondents.
    Submitted October 17, 1983;
    decided November 23, 1983
   Motion to dismiss appeal taken by petitioner granted and that appeal dismissed, with costs and $20 costs of motion, upon the ground that petitioner is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of John D., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted September 19, 1983;
    decided November 23, 1983
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, upon the grounds that appellant is not aggrieved by the modification at the Appellate Division and no substantial constitutional question is directly involved (CPLR 5601, subd [a], par [iii]; subd [b], par 1).


text:
    In the Matter of the Claim of Peter J. Donaghy, Appellant. Lillian Roberts, as Commissioner of Labor, Respondent.
    Decided November 23, 1983
   Appeal dismissed, without costs, by the court sua sponte, upon the ground that no appeal lies as of right from the unanimous Appellate Division order of affirmance in the absence of the direct involvement of a substantial constitutional question or the grant of leave to appeal (CPLR 5601, 5602).


text:
    The People of the State of New York, Appellant, v Barry Douglass, Robert Jones, Harmeen Logan, Gregory Baldwin, Kevin St. Halaire, Emilio Lopez and Julio Cordova, Respondents. The People of the State of New York, Appellant, v Gilberto Acevedo, Respondent.
    Submitted November 14, 1983;
    decided November 23, 1983
   Motion to amend opinion denied. [See 60 NY2d 194.]


text:
    43 Goodwin Realty Inc., et al., Appellants, v New York Property Insurance Underwriting Association, Respondent.
    Submitted November 7, 1983;
    decided November 23, 1983
   Motion, insofar as it seeks leave to appeal from the June 23, 1983 and September 2, 1983 orders of the Appellate Division, dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution; motion otherwise denied. Twenty dollars costs and necessary reproduction disbursements to respondent.


text:
    James J. Mead, Appellant-Respondent, v Karen E. Bloom et al., Defendants, and Hallman Adkins Chevrolet, Respondent-Appellant.
    Submitted October 17, 1983;
    decided November 23, 1983
   Motion to dismiss cross appeal taken by Hallman Adkins Chevrolet granted and said cross appeal dismissed, with costs and $20 costs of motion, upon the ground that cross-appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    Teachers Insurance and Annuity Association of America et al., Appellants, v Coopers & Lybrand, Respondent.
    Submitted November 7, 1983;
    decided November 23, 1983
   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 Behren v Papworth, 30 NY2d 532; Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Cohen and Karger, Powers of the New York Court of Appeals, pp 81, 84-93).


text:
    Leland Childs, Appellant, v Anthony S. Brandon et al., Respondents.
    Argued September 13, 1983;
    decided November 29, 1983

      APPEARANCES OF COUNSEL

      Michael J. Kieffer for appellant.

      Fred G. Aten for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff is a resident of Alabama who seeks to recover on an Alabama judgment in his favor and against a dissolved Delaware corporation by proceeding against the former officers of that company, who are New York residents. Defendants moved to dismiss plaintiff’s action for being untimely under Alabama law, which defendants invoke pursuant to this State’s borrowing statute (CPLR 202).

In borrowing the Alabama Statute of Limitations, its tolling statute is also borrowed (Hanna v Stedman, 230 NY 326, 337-338; see Klotz v Angle, 220 NY 347, 356-357). Section 6-2-10 of the Code of Alabama provides that a person’s absence from that State during the period when an action could have been commenced against him or her precludes the Statute of Limitations from running during that time.

A defendant who concedes nonresidency in New York is presumed to have been absent from the State and, therefore, is required to prove his or her presence here in order to avoid New York’s tolling statute (CPLR 207) and obtain the protection of New York’s Statutes of Limitation (Beresovksi v Warszawski, 28 NY2d 419, 422, 425-426). The same presumption and burden of proof is appropriate when a defendant asserts a foreign Statute of Limitations and concedes that he or she was not a resident of the foreign jurisdiction. These are procedural matters to be applied in assessing the foreign law, and, as such, the law of the forum governs (see Kilberg v Northeast Airlines, 9 NY2d 34, 41).

In answering the complaint, defendants here admitted residency in New York at all relevant times. The record is barren of any evidence that they were in Alabama after plaintiff’s cause of action accrued. Consequently, they failed to establish a prima facie defense that the present action is time barred. It was, therefore, inappropriate to dismiss the complaint on this ground.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Leroy Cunningham, Appellant.
    Argued October 27, 1983;
    decided November 29, 1983
    APPEARANCES OF COUNSEL

      Dominic J. Sichenzia for appellant.

      Denis Dillon, District Attorney (.Anthony J. Gírese and Bruce E. Whitney of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In April, 1978, defendant cut his stepdaughter’s face during an argument. On July 25, 1978, defendant was indicted for assault and released on bail. He was represented by counsel.

In late August, 1979, the Nassau County District Attorney’s office referred a complaint against defendant to the county police. The complaint accused defendant of sexually abusing his seven-year-old stepdaughter. Although the same District Attorney’s office was prosecuting the 1978 assault charge, with respect to which the District Attorney knew defendant was represented by an attorney, the police were not informed that defendant was represented by counsel.

Two officers went to defendant’s home, where he met them outside and agreed to accompany them to the police station. Defendant subsequently made admissions and signed a confession.

Defendant moved to suppress his inculpatory statements on the ground that his waiver of counsel in the absence of counsel was ineffective because he was already represented on the pending unrelated charge (see People v Rogers, 48 NY2d 167). County Court denied the motion. Defendant pleaded guilty to rape in the second degree and sexual abuse in the second degree.

There is no claim here that the police had actual knowledge of the pending charge or of defendant’s representation by counsel on the 1978 charge when they interrogated him in 1979. Defendant argues that the knowledge attributable to the District Attorney’s office should be imputed to the police officers. On the facts of this case, this is unpersuasive.

Defendant’s pending indictment was 13 months old when the new complaint was filed. There is no evidence that whoever handled the new complaint in the District Attorney’s office was personally aware of the pending charge or that there was any attempt to insulate its personnel or the police from such knowledge. Nor can it be said that the prosecutor’s cooperation with the police at this point was so extensive as to render the matter a joint investigation. Under the circumstances, there was no basis for imputing knowledge of defendant’s representation from the District Attorney’s office to the police officers (see People v Fuschino, 59 NY2d 91; People v Servidlo, 54 NY2d 951).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York ex rel. Clarence Moore, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Argued October 18, 1983;
    decided November 29, 1983

      APPEARANCES OF COUNSEL

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

      Robert Abrams, Attorney-General {Martin A. Hotuet and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court reinstated.

Relator instituted the present habeas corpus proceeding to challenge final revocation of his parole. Supreme Court granted the writ and ordered that he be restored to parole supervision on two grounds, namely, that it was error at the final parole revocation hearing to have received in evidence (1) testimony by his parole officer as to admissions made by relator to the parole officer while relator was in custody without his first having been given the preinterrogation warnings to which he was constitutionally entitled, and (2) the admission implicit in the relator’s plea of guilty at the preliminary revocation hearing in the absence of counsel who had been appointed to represent him.

For reasons which do not appear, on appeal to the Appellate Division respondents in the habeas corpus proceeding chose not to argue the issue of the guilty plea at the preliminary hearing, and the Appellate Division made no reference to it. Similarly, respondents in our court have expressly elected not to challenge the propriety of Supreme Court’s determination that relator’s parole revocation should be vacated because of the receipt of the admission implicit in the guilty plea at his preliminary revocation hearing. Respondents could have urged that the error was harmless but both on brief and in oral argument stated that no argument was advanced with respect to the admission of relator’s “guilty plea”. In this circumstance, relator had no opportunity to and has not addressed any harmless error contention, nor is any such contention now before us.

In this procedural posture, the order of the Appellate Division should be reversed, no challenge being made by respondent to the determination of error by Supreme Court. We have no occasion, in view of the disposition of the appeal on this ground to address the alternative contentions of the parties with respect to the admissibility of the statement made by relator to his parole officer.

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

Order reversed, without costs, and judgment of Supreme Court, Wyoming County, reinstated in a memorandum.

       Supreme Court, acknowledging that under People ex rel. Calloway v Skinner (33 NY2d 23) parolees are not entitled to assignment of counsel for every preliminary parole revocation hearing, nonetheless concluded that in this instance considerations of fundamental fairness had warranted the assignment of counsel to relator.


text:
    In the Matter of Parkmed Associates et al., Appellants, v New York State Tax Commission, Respondent.
    Decided November 29, 1983
    APPEARANCES OF COUNSEL

      Charles D. Bock for appellants.

      Robert Abrams, Attorney-General (Carl E. Stephan and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the matter remitted to it for further proceedings in accordance with this memorandum.

Judicial review of an administrative determination is limited to the grounds invoked by the agency and a reviewing court which finds those grounds insufficient or improper may not sustain the determination by substituting what it deems to be a more appropriate or proper basis (Matter of Trump-Equitable Fifth Ave. Corp. v Gliedman, 57 NY2d 588, 593). Thus, the only question before the Appellate Division was whether the 80% provision of subdivision (c) of section 703 of the Tax Law applies to a partnership which practices medicine, and its affirmance on other grounds was erroneous. Before us the commission concedes that that provision does not apply to a partnership practicing medicine. If the Appellate Division disagrees with that concession it should review the commission’s original determination. If it agrees with that concession it should remit the matter to the commission for its determination of whether petitioner was during the years in question engaged in the practice of medicine.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment reversed, with costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.


text:
    M.I.F. Securities Company et al., Respondents, v R.C. Stamm & Co., Appellant.
    Decided November 29, 1983

      APPEARANCES OF COUNSEL

      Peter R. Celia for appellant.

      Stephen R. Steinberg and Judith B. Yaeger for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (94 AD2d 211) except so much thereof as holds that the individual members of Stamm partnership may not demand arbitration between MIF and Stamm partnership, an issue which we deem it unnecessary to reach or consider.

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


text:
    In the Matter of the Claim of Douglas Smith, Sr., Claimant, v Tompkins County Courthouse et al., Respondents. Workers’ Compensation Board, Appellant.
    Argued October 21, 1983;
    decided November 29, 1983
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {Henriette Frieder and Peter H. Schiff of counsel), for appellant.

      Thomas J. Spargo and Raymond C. Green for State Insurance Fund, respondent.

      Martin Luster for claimant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the decision of the Workers’ Compensation Board reinstated.

Claimant, a deputy sheriff of Tompkins County, injured his back when a motorcycle collided with his patrol car during the course of his employment. He was hospitalized on two occasions following the accident and received numerous treatments for relief of back pain. When these treatments failed, claimant’s orthopedist requested authorization from the insurance carrier for claimant to swim at either of two local motel pools as a rehabilitative measure. The orthopedist also noted that swimming instruction would be required inasmuch as claimant had never learned to swim. After the carrier rejected or ignored these requests, a referee conducted a hearing and ordered the carrier to negotiate and provide a swimming facility for claimant in the Ithaca area. The Workers’ Compensation Board affirmed this determination. The carrier then appealed and the Appellate Division reversed, concluding from its interpretation of section 13 of the Workers’ Compensation Law that supervised swimming was not an authorized treatment.

The sole issue presented is whether the requirement to provide swimming facilities and instruction in the circumstances of this case is authorized by section 13 of the Workers’ Compensation Law. We hold that it is.

Subdivision (a) of section 13 of the Workers’ Compensation Law requires the employer and/or its insurance carrier to provide prompt medical treatment for an injured employee, covering “such medical, surgical, optometric or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eyeglasses, false teeth, artificial eyes and apparatus for such period as the nature of the injury or the process of recovery may require” (emphasis added). The Appellate Division found that such a program was not explicitly authorized by the statute and that it was not encompassed by the broad phrase “other attendance or treatment” because a swimming instructor, unlike a physiotherapist or other enumerated professionals or paraprofessionals, is not explicitly authorized to render treatment under the active supervision of an authorized physician under other sections of the law (see Workers’ Compensation Law, § 13-c, subd 1; § 13-b, subd 1).

The ruling ignores the fundamental principle that the Workers’ Compensation Law is to be liberally construed to accomplish the economic and humanitarian objects of the act (Matter of Merchant v Pinkerton’s Inc., 50 NY2d 492, 495; Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 145). Consistent with this purpose the phrase “other attendance or treatment” has been broadly interpreted in the past (see Matter of Zylbergleit v Irving Rubber & Metal Co., 87 AD2d 929 [elevator chair to assist heart patient deemed medical treatment]; Matter of Clark v Fedders-Quigan Corp., 284 App Div 430 [“change of climate” held to be medical treatment]; cf. Matter of Carniato v Wheeler Corp., 7 AD2d 328, 329 [continued use of large amounts of whiskey as a vasodilator did not constitute treatment]). A supervised swimming program is a recognized rehabilitative measure (see Cover v T G & Y, 377 So 2d 792 [Fla]; Pickett v Industrial Comm., 26 Ariz App 213), and when prescribed by an orthopedist to rehabilitate a back injury qualifies as “other attendance or treatment” within the meaning of section 13 of the Workers’ Compensation Law. It is of no consequence that a swimming instructor is not explicitly authorized to render treatment under other sections of the statute, inasmuch as a doctor will administer the treatment here.

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

Order reversed, etc.


text:
    In the Matter of Dorothy M. Cole et al., Appellants, v Board of Education, South Huntington Union Free School District, et al., Respondents.
    Argued October 24, 1983;
    decided November 29, 1983

      APPEARANCES OF COUNSEL

      Frederick Block and Eugene L. Wishod for appellants.

      Lawrence W. Reich and Jerome H. Ehrlich for Board of Education, South Huntington Union Free School District, respondent.

      Noel D. Cohen and James R. Sandner for Marcia Silver-man and others, respondents.

      Norman H. Gross for New York State School Boards Association, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Vito J. Titone at the Appellate Division (90 AD2d 419).

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


text:
    John A. Melahn, Appellant, v Robert F. M. Hearn, Also Known as R. M. Hearn, Respondent.
    Argued October 26, 1983;
    decided November 29, 1983

      APPEARANCES OF COUNSEL

      George D. Marlow and Amanda T. Green for appellant.

      James V. Brands and Henry S. Goldman for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff brought this action to foreclose a mortgage executed by defendant in favor of plaintiff’s assignor and upon premises formerly owned by defendant. The mortgage secured a debt evidenced by a bond executed at the same time. Defendant’s answer alleged that he was not a proper party because the property had been sold at public auction for unpaid taxes. He subsequently moved for summary judgment on that ground and it appeared from the motion papers that the property had been sold but had been reacquired by defendant at the tax sale. He in turn conveyed the property to another before this action commenced but after plaintiff had filed a lis pendens.

On appeal to this court plaintiff claims the sale must be vacated alleging that his mortgage and assignment were recorded and that he has been deprived of due process because of the failure to give him actual notice of the tax sale and of his right to redeem (see Mennonite Bd. of Missions v Adams, 462 US_, 103 S Ct 2706; Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418). Since that constitutional issue was not raised below, it is not preserved for our review (Matter of Eagle v Paterson, 57 NY2d 831, 833; Barber v Dembroski, 54 NY2d 648, 650; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 169).

Insofar as the merits of the action are concerned, we agree with the majority opinion of Justice Mangano at the Appellate Division (92 AD2d 319) that when the mortgagee failed to redeem the property within the three-year period provided by law, the purchaser’s title became “absolute” (Real Property Tax Law, § 1024, subd 1) and that the mortgage was extinguished and was unenforceable. The purchaser of property at a tax sale, upon receiving a valid deed, acquires a new and complete title to the land under an independent grant from the sovereign, a title free of any prior claims to the property or interests in it and not merely the title of the prior owner or the party assessed for taxes (Hefner v Northwestern Life Ins. Co., 123 US 747, 751; Lee v Farone, 261 App Div 674, affd 288 NY 517).

Our disposition of the appeal is without prejudice to plaintiff repleading so much of the cause of action as seeks foreclosure and a deficiency judgment to allege a claim to recover on the bond.

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

Order affirmed, with costs, in a memorandum.


text:
    A. J. Cerasaro, Inc., Appellant, v Philip Ross, as Industrial Commissioner of the State of New York, Respondent.
    Decided November 29, 1983

      APPEARANCES OF COUNSEL

      Thomas F. Cannavino and James N. Cahill for appellant.

      Robert Abrams, Attorney-General {John Q. Driscoll and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The court correctly held that petitioner’s proceeding was barred by the four-month Statute of Limitations (CPLR 217) but in doing so relied on our decision in Schultz Constr. v Ross (53 NY2d 792). That decision related to the retroactivity of chapter 336 of the Laws of 1978 which amended section 220 of the Labor Law and did not necessarily reach the timeliness issue. We now hold that the four-month Statute of Limitations contained in CPLR 217 applies in the circumstances presented and bars this proceeding.

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

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


text:
    Waverly Thompson, Respondent, v City of New York, Appellant.
    Decided November 29, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Leonard Koerner and Alfred Weinstein of counsel), for appellant.

      Philip M. Damashek, P. C., and Sally Weinraub, P. C., for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured when the legally parked vehicle in which she was sitting was struck by one of defendant’s fire trucks, as it attempted to negotiate a turn. In plaintiff’s negligence action against the city, Captain Brennan, a fireman directing the truck as it turned, testified on direct examination that, “I did not see [the parked car] * * * I should have seen it but I didn’t.” An investigation by the fire department introduced at trial indicated that the accident was caused by an “error of judgment” by a fireman in a nonemergency situation. After the court denied plaintiff’s motion for a directed verdict at the close of the evidence, the jury returned a verdict for defendant. On appeal, the Appellate Division reversed and directed judgment for plaintiff on the liability issue.

Contrary to defendant’s argument that the motion was untimely because made after the court’s charge, plaintiff properly preserved her rights by reserving her motion for a

directed verdict with the consent of the court (CPLR 4401; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4401.12). Inasmuch as the motion was timely, the Appellate Division possessed the power to reverse Trial Term and to direct a verdict for plaintiff, action which upon evidence the trial court should have taken (CPLR 5522; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5522:1, p 222). Given the evidence of defendant’s fault, and the absence of any evidence contradicting it, the Appellate Division properly directed a verdict for plaintiff because “by no rational process could the trier of the facts base a finding in favor of the defendant upon the evidence * * * presented” (Blum v Fresh Grown Preserve Corp., 292 NY 241, 245).

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

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


text:
    James C. Thrall, Jr., Respondent, v City of Syracuse et al., Appellants.
    Decided November 29, 1983

      APPEARANCES OF COUNSEL

      David M. Garber, Corporation Counsel (.Robert J. Jenkins of counsel), for appellants.

      G. Robert McAllister for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and complaint dismissed for reasons stated in the dissenting memorandum of Justice Reid S. Moule at the Appellate Division (96 AD2d 715, 716; see, also, Licari v Elliott, 57 NY2d 230, 237).

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


author: Simons, J.

text:
    The People of the State of New York, Appellant, v John Randazzo, Respondent.
    Argued October 24, 1983;
    decided November 29, 1983

      APPEARANCES OF COUNSEL

      John H. Galloway, III, Special Village Prosecutor {Henry J. Smith and James G. Fine of counsel), for appellant.

      Joseph A. Lichtenthal and Anthony T. Antinozzi for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed, and the case remitted to that court for a determination of the facts. (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b].)

This appeal concerns a traffic ordinance enacted by the Village of Scarsdale, declaring Walworth Avenue a one-way northbound street for a 50-foot segment beginning at the Scarsdale border. Neither the beginning nor the end of the one-way segment is at an intersection. The restriction applies during the hours of 4:00 p.m. to 6:00 p.m. on weekdays, and it does not apply to Westchester County buses. Respondent, a newspaper reporter, was ticketed after traveling in the wrong direction during the prohibited hours and was convicted of violating the ordinance, the validity of which he questions. The Village Court upheld the ordinance, but the Appellate Term reversed, finding it an unreasonable traffic regulation.

Although the State is responsible for regulating the streets, it has delegated much of this power to municipalities. A village is empowered to designate “any highway or any separate roadway thereof for one-way traffic” (Vehicle and Traffic Law, § 1640, subd [a], par 4), and it may enact such additional reasonable traffic laws as local conditions may require. (Vehicle and Traffic Law, § 1640, subd [a], par 16.) A traffic ordinance established by a municipality will be upheld so long as it is reasonable and nondiscriminatory. (7 McQuillin, Municipal Corporations [3d rev ed], § 24.618.)

Where an ordinance limits through traffic, factors to be weighed in determining its validity include the availability of convenient alternate routes, any discriminatory effect, and the necessity for the regulation in relation to traffic conditions. (People v Grant, 306 NY 258; Jones Beach Blvd. Estate v Moses, 268 NY 362; Mobil Oil Corp. v Village of Roslyn Harbor, 69 Misc 2d 79 [Meyer, J.].) For example, in Grant, upon which defendant relies heavily, we sustained a challenge to an ordinance of the Town of North Hempstead which prohibited through traffic in a 10-block area and was designed to reserve the use of the streets to local residents. The ordinance in Grant banned all travel through the area, in whatever direction, and wherever destined. (306 NY, at p 264.) The Scarsdale ordinance, by contrast, does not impose a blanket prohibition. It forecloses only southbound traffic on one street for two hours each weekday.

On the present record, the Appellate Term was not justified in striking down the regulation. Defendant’s challenge consisted of little more than citing People v Grant. No motion was made to dismiss the information on grounds of invalidity. (CPL 170.30, subd 1, par [a]; 170.35, subd 1, par [c].) Defendant did not show that alternate routes were unavailable or that these routes, if available, were inadequate. No mention was made of undue inconvenience imposed on southbound travelers on Walworth Avenue. Nor did defendant allege, much less prove, that the ordinance was designed to favor residents rather than to eliminate a dangerous traffic condition. He established no discriminatory effect. The only clue to the purpose and effect of the ordinance is in the decision of the Village Justice, who took judicial notice that the ordinance was enacted to address “an extremely difficult traffic situation” on Walworth Avenue resulting from the closing of one or more entrances to the southbound Bronx River Parkway, and that the ordinance succeeded in eliminating the traffic danger. He further noted the existence of many alternate routes for entry to the parkway. These considerations would weigh in favor of upholding the ordinance.

The Appellate Term found, as an additional basis for the result reached, that the “One Way” and “Do Not Enter” signs were positioned between intersections, necessitating U-turns. Subdivision (b) of section 1110 of the Vehicle and Traffic Law prohibits the enforcement of an ordinance if a required sign is not in a proper position or sufficiently legible to be seen by an ordinarily observant person. But defendant did not question the positioning of the signs. Consequently, there is no proof in this record of the actual distance between the signs and the intersections, or of the ability of an ordinarily observant person to see the signs before proceeding past the intersections.

While we do not sanction the unusual measure of establishing a one-way segment within a block, the record before us is inadequate to declare the ordinance invalid.

Simons, J.

(dissenting). I would affirm the order of the Appellate Term invalidating the ordinance because it is not reasonably justified by necessity or public safety and because it discriminates against nonresidents of the Village of Scarsdale.

A municipality’s power to regulate traffic on its streets is derived from the Legislature. It may do so only as permitted by State law (Vehicle and Traffic Law, § 1604) and then only if such regulation is reasonable and nondiscriminatory. Reasonableness is determined by what is necessary and justified by the requirements of public safety (7 McQuillin, Municipal Corporations [3d rev ed], § 24.610; and see People v Grant, 306 NY 258) and discriminatory impact is to be judged by the general rule that the public streets are for public use and a municipality may not discriminate by restricting them for its own residents “in priority to or exclusive of use by the general public” (People v Grant, 306 NY 258, 262, supra; see, also, City of New York v Rice, 198 NY 124, 128; 10 McQuillin, Municipal Corporations [3d rev ed], § 30.49, p 685). In considering the relationship between the judiciary and local legislatures it is to be remembered that the courts cannot invalidate ordinances unless they are unconstitutional, ultra vires or unreasonable. Ordinances properly enacted pursuant to delegated powers, however, may be invalidated if they operate unreasonably or arbitrarily under the circumstances (see Associated Transp. v City of Syracuse, 274 App Div 565; see, also, 56 Am Jur 2d, Municipal Corporations, § 386 et seq.).

Thus, while the village unquestionably had the power to designate certain village streets as one-way (see Vehicle and Traffic Law, § 1640, subd [a], par 4), the question before us on this appeal is whether it lawfully exercised that power when it designated a mid-block 50-foot segment of a highway, at the village boundary line, as one-way to prevent the entry of nonresident traffic. That the ordinance discriminates is established by its terms which permit buses but not cars to travel south on Walworth Avenue and by evidence in the record that the restriction is not applied to residents living along Walworth Avenue in the restricted area because they are permitted, as a matter of custom if not as a matter of legal right, to travel the wrong way on the 50-foot strip and proceed south to the village.

Moreover,- the ordinance is unreasonable because it blocks the entry of traffic into the village at the village line, not for any manifested consideration of public safety, but rather as a private convenience to those living in this residential area. That being so, the regulation is no less offensive than a physical barricade closing the street to outsiders (see People v Grant, 306 NY 258, supra; Merritt Manor Estates v Village of Elmsford, 30 Misc 2d 935 [Hopkins, J.]).

The ordinance was properly declared void because it manifestly was designed to exclude automobile traffic in the area, not to regulate it.

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

Order reversed and case remitted to the Appellate Term, 9th and 10th Judicial Districts, for further proceedings in accordance with the memorandum herein.

       The dissent concludes that the ordinance is not reasonably justified by necessity or public safety, and that it discriminates against nonresidents of the Village of Scarsdale. These would certainly have been grounds for invalidating the ordinance, had there been evidence to support them. The fact that county buses are permitted to travel south on Walworth Avenue fails to establish discrimination and may even support a conclusion that the ordinance operates not to favor Scarsdale residents or exclude the public but to eliminate undue congestion and traffic danger. Similarly, no discrimination in favor of Scarsdale residents was shown. The testimony at best indicated that in isolated cases a local resident coming out of one of the two or three driveways within the 50-foot segment was permitted to travel south — hardly a foundation for the legal conclusion that the ordinance discriminated against nonresidents of the Village of Scarsdale.


text:
    Edenwald Contracting Co., Inc., Respondent, v City of New York, Appellant.
    Argued October 27, 1983;
    decided November 29, 1983
    APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Trudi Mara Schleifer, Leonard Koerner and Francis F. Caputo of counsel), for appellant.

      Alvin Goldstein for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the case remitted to that court to consider the question raised within the exercise of its discretion.

Appellant, the City of New York, in 1970 entered into a contract with respondent for street repaving. During 1971, to secure extensions of contract time and expedite periodic payments, respondent signed several letters agreeing to “waive and release all claims which we may have against the City of New York, arising out of the aforesaid contract.” Respondent thereafter commenced suit against the city, seeking damages based on unexpected overruns not fairly compensated for by the contract. The action proceeded with no mention by the city of respondent’s letters until, six and one-half years after the action had begun, the city sought dismissal of the complaint on the grounds of “waiver and release.” The issue presented by this appeal is whether “waiver and release” may be asserted as an affirmative defense for, if permitted, this may be dispositive in accordance with Mars Assoc. v City of New York (53 NY2d 627).

Trial Term initially denied permission to assert the defense, finding the belated amendment prejudicial to respondent and of dubious merit, and granted summary judgment for respondent on the issue of liability. However, on motion for reargument, renewal and leave to amend the answer, the court reversed itself. It was persuaded that respondent’s claim of prejudice was without basis, that the defense of waiver and release was meritorious in light of Mars Assoc. v City of New York (supra), which had been handed down by this court after Trial Term’s initial decision, and that the city should have summary judgment dismissing the complaint. The Appellate Division reversed on the law, holding that (1) there was no consideration for the waiver; (2) the city was guilty of laches in failing to assert waiver for more than five years after service of a note of issue; and (3) the court abused its discretion in granting the city’s summary judgment motion based on respondent’s letters since the city’s laches was akin to default on the issue.

We now reverse and remit to the Appellate Division for an exercise of its discretion with respect to the city’s motion under CPLR 3025 (subd [b]) for permission to amend its answer.

Permission to amend pleadings should be “freely given” (CPLR 3025, subd [b]). The decision to allow or disallow the amendment is committed to the court’s discretion. (Murray v City of New York, 43 NY2d 400, 404-405.) “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine.” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3025:5, p 477.) The prejudice asserted here was inability to locate a potential witness, a former city employee, who allegedly would have testified that respondent’s letter was not intended to release all claims against the city. However, after the city disclosed the address and phone number of this witness in its renewed motion, respondent did not show that it would suffer significant prejudice. Trial Term did not abuse its discretion as a matter of law in permitting appellant to amend its answer to include the affirmative defense of waiver and release.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Frederick Turner, Appellant, v John D. Simpson, as President of the New York City Transit Authority, Respondent.
    Decided November 29, 1983

      APPEARANCES OF COUNSEL

      Stephen Latzman for appellant.

      Robert A. Rifkin andRichardK. Bernard for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this article 78 proceeding, appellant seeks to set aside a determination made by respondent pursuant to section 75 of the Civil Service Law, terminating appellant’s employment by the New York City Transit Authority. Respondent’s findings of misconduct and incompetence are supported by substantial evidence in the hearing record and, particularly in view of appellant’s extensive prior disciplinary record, the penalty imposed is not so disproportionate as to be shocking to one’s sense of fairness. In such circumstances, respondent’s determination may not be disturbed. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Ramsey v New York City Tr. Auth., 40 NY2d 960, affg 50 AD2d 895; Matter of Weber v Town of Cheektowaga, 284 NY 377.)

Appellant makes two additional arguments. First, he contends that respondent erroneously ignored and rejected the conclusion of the Impartial Disciplinary Review Board, an advisory body of union and management representatives created pursuant to a collective bargaining agreement to make recommendations in disciplinary cases. However, the record shows that respondent considered the review board’s conclusion as well as the hearing officer’s report and the hearing record. Furthermore, the review board has only an advisory role under a collective bargaining agreement. By law respondent has the power and responsibility to make the disciplinary decision, and may reject such advice. (Civil Service Law, § 75; Matter of Simpson v Wolansky, 38 NY2d 391.)

Second, appellant urges that respondent erroneously failed to consider his participation in an alcohol counseling program, thereby violating an alleged “State policy” expressed in the Mental Hygiene Law, which declares that State and local governments have a responsibility to detect and prevent alcohol abuse problems and treat individuals who have them. (Mental Hygiene Law, § 19.01.) It is not at all clear from the record that respondent failed to consider appellant’s ongoing treatment. But in any event, section 19.01 of the Mental Hygiene Law does not guarantee continued public employment. In view of appellant’s long history of disciplinary problems and the substantial evidence supporting his dismissal, his participation in an alcohol treatment program is not ground for disturbing respondent’s determination.

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

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


text:
    Louis L. Bassett et al., Respondents, v Bando Sangsa Company, Ltd., et al., Appellants.
    Decided November 29, 1983
   On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed, without costs, upon the ground that the question certified does not present a question of law decisive of the correctness of the Appellate Division determination.


text:
    In the Matter of the Arbitration between Asoma (Bangkok) Co., Ltd., Respondent, and Thai Flourite Processing Co., Ltd., Appellant.
    Submitted October 24, 1983;
    decided November 29, 1983
   Motion to dismiss the appeal denied.


text:
    Patsy Bello Nurseries, Inc., Appellant, v City of New York, Respondent.
    Submitted September 19, 1983;
    decided November 29, 1983
   Motion for leave to appeal dismissed for failure to demonstrate the timeliness of the motion as required by rule 500.9 (a) (1) of the Rules of the Court of Appeals (22 NYCRR 500.9 [c] [1]; see Manolakos v Manolakos, 56 NY2d 591).


text:
    In the Matter of Paulette Nenner, Appellant, v Gordon J. Davis, as Commissioner of Parks and Recreation of the City of New York, et al., Respondents.
    Argued November 21, 1983;
    decided December 1, 1983

      APPEARANCES OF COUNSEL

      Charles C. Platt for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Joan E. Handler, Francis F. Caputo and David Drueding of counsel), for respondents.
   OPINION OF THE COURT

Order reversed, without costs, and matter remitted to Supreme Court, New York County, with directions to dismiss the proceeding for mootness.

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


text:
    In the Matter of Leslie Lubin, Appellant, v Board of Education of the City of New York et al., Respondents.
    Decided December 1, 1983

      APPEARANCES OF COUNSEL

      Eugene M. Kaufman, P. C., for appellant.

      Frederick A. O., Schwarz, Jr., Corporation Counsel (Larry A: Sonnenshein of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

CPLR 217 provides that an article 78 proceeding “must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner”. For a determination to be final it must be clear that the petitioner seeking review has been aggrieved by it (Matter of Martin v Ronan, 44 NY2d 374, 380). Petitioner was informed on April 21, 1976 that his services were being terminated for failure to meet the requirements of his 1972 license. Petitioner clearly was aggrieved by this determination and his failure to commence a proceeding within four months requires dismissal of this proceeding. Inasmuch as petitioner’s appointment was based on his 1972 license, respondents’ misstatements and subsequent clarification concerning petitioner’s 1973 license cannot be viewed as relevant to respondents’ decision, in 1976 to rescind petitioner’s 1972 license and terminate his services. In addition, petitioner’s direction of correspondence to respondents, which can be viewed, at most, as a request for reconsideration, does not toll or revive the Statute of Limitations (see Matter of De Milio v Borghard, 55 NY2d 216). Finally, petitioner’s contention that his invocation of a grievance proceeding, which was determined not to be available under the United Federation of Teachers collective bargaining agreement, tolled the Statute of Limitations also is unavailing.

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

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


text:
    Harold Properties Corp. et al., Appellants, v Jacqueline Frankel, Respondent.
    Decided December 1, 1983

      APPEARANCES OF COUNSEL

      Michael Irwin Meltzer for appellants.

      Nicholas J. Zoogman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified, with costs to defendant, by deleting the dismissal of the complaint and by making a declaration in favor of defendant in accordance with the memorandum at the Appellate Division (93 AD2d 720), and, as so modified, affirmed.

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


text:
    In the Matter of Rose Silberfarb, Respondent, v Board of Cooperative Educational Services, Third Supervisory District, Suffolk County, Appellant.
    Decided December 1, 1983

      APPEARANCES OF COUNSEL

      Warren H. Richmond, III, for appellant.

      Lester B. Lipkind for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the matter remitted to that court for consideration of the appropriate penalty.

Judicial review of administrative determinations made as the result of a hearing required by law is limited to a consideration of whether that resolution is supported by substantial evidence (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181). Notwithstanding petitioner’s testimony that her dismissal was motivated by bad faith on the part of her supervisor, the supervisor’s testimony of her poor job performance and insubordination and the exhibits of her work provided substantial evidence to support the charges leading to her dismissal. It was for the board to weigh the conflicting evidence of motive and assess the credibility of the witnesses, not the Appellate Division (Matter of Stork Rest. v Boland, 282 NY 256, 267). It was also within the board’s competence to determine whether the evidence established dereliction sufficient to support the charge of poor job performance.

Finally, as to the penalty imposed, the matter is remitted to the Appellate Division for its consideration.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment reversed, with costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


author: Meyer, J.

text:
    The People of the State of New York, Appellant, v Hurley Robinson, Respondent.
    Argued September 21, 1983;
    decided December 1, 1983
    APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Kenneth R. Fisher of counsel), for appellant.

      Edward J. Nowak, Public Defender {Peter D. Braun of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the morning of May 31, 1977, an employee of Volpe Motors in Rochester discovered that a new Lincoln Continental had been taken from the repair shop, where it was being readied for delivery. Later in the day the police found the car on a local street some distance from the dealer’s place of business. Missing from the car were its wheels and tires, which had an aggregate value of $750. Defendant was arrested after the police found his fingerprints on the rear fender skirts. According to defendant’s statement, he did not participate in the theft but, knowing the car had been stolen the night before from Volpe Motors, he helped two friends remove the wheels and tires and load them into their automobile. In an indictment charging grand larceny in the third degree, defendant was accused of stealing the wheels and tires. At trial, the People offered no evidence connecting defendant with theft of the car. The jury found defendant guilty of grand larceny.

The Appellate Division reversed the conviction and dismissed the indictment, concluding that while defendant might have been guilty of criminal possession of stolen property, the evidence was insufficient to establish that he committed larceny. The Appellate Division’s reversal having been “on the law and facts,” our review is of course limited to the propriety of its legal conclusions. The Appellate Division ruled as a matter of law that the larceny of the car, including its wheels and tires, was complete when dominion and control of the car were assumed, and that there was insufficient evidence to establish defendant’s guilt for this crime. These legal conclusions being correct, we affirm.

A person commits larceny when, “with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” (Penal Law, § 155.05, subd 1.) Where a larceny is committed by trespassory taking, a thief’s responsibility for the crime is not diminished because his act of carrying away the loot (asportation) is frustrated at an early stage. Thus, a shoplifter who exercises dominion and control over the goods wholly inconsistent with the continued rights of the owner can be guilty of larceny even if apprehended before leaving the store (People v Olivo, 52 NY2d 309), a car thief who starts the car can commit larceny before he actually drives the automobile away (People v Alamo, 34 NY2d 453), and a pickpocket can be guilty of larceny even though his removal of the victim’s possessions is interrupted before completion (Harrison v People, 50 NY 518). By the same token, one who learns of a larceny while it is in progress and assists its perpetrator cannot avoid accomplice liability merely because such participation occurs after the principal, for purposes of his own liability, has technically completed the crime. (United States v Barlow, 470 F2d 1245.)

The Appellate Division did not misapply these principles. Contrary to the view urged upon us by the People, the court did not decide, as a matter of law, that a larceny is complete for all purposes when the principal’s liability attaches. The court simply decided that in this case asportation — whether of the car, or of the wheels and tires — had ceased before defendant’s involvement. Where defendant first became involved the day after theft of the car, where the original perpetrators were not being pursued in the act of carrying away the loot, and where the removal of the wheels and tires took place some distance from the dealership, we cannot say that the court below was incorrect in its conclusion that asportation had ceased before defendant’s involvement.

The dissent reasons that if the original perpetrators intended only to steal the wheels and tires, the larceny would not be complete until these components were removed from the car. Under the proposed new rule of law, a larceny of parts can never be complete until they are removed from the whole, however great the passage of time or distance between the original taking and the subsequent removal, and irrespective of intervening circumstances. We decline to adopt such a rigid rule, particularly in a case where the intent of the original perpetrators was never even an issue at trial.

Meyer, J.

(dissenting). The fallacy in the majority’s reasoning and in that of the Appellate Division is in the insistence on viewing the theft as of the car rather than of its tires and wheels. There is, of course, no question that the original takers removed the entire car from Volpe Motors premises. But it is also true that if the intention of the original takers was to steal not the entire car but only the tires and wheels, when asportation of the car had ceased is irrelevant to defendant’s criminal responsibility.

This is because by definition larceny requires not only asportation or taking of property but also the intent to deprive the owner of it or to appropriate it to the thief or to a third person (Penal Law, § 155.05, subd 1). So far as' pertinent to the present case, to “deprive” means to withhold property permanently or under such circumstances that the major portion of its economic value is lost to the owner, or to dispose of the property in such a manner or under such circumstances as to render it unlikely that the owner will recover it (Penal Law, § 155.00, subd 3), and to “appropriate” means to control property permanently or under such circumstances as to acquire the major portion of its economic value, or to dispose of it for the benefit of oneself or a third person (Penal Law, § 155.00, subd 4).

Whether the larceny committed by defendant’s friends had been completed when the Lincoln Continental left Volpe’s premises turns, therefore, on whether their intent was to deprive Volpe of, or appropriate to themselves, the entire car or only the tires and wheels. From the facts that defendant’s friends had tried unsuccessfully to remove the tires and wheels before they contacted defendant and that they took with them only the tires and wheels and left the car without wheels or tires in the park, a trier of fact could infer that they intended to deprive Volpe of, or appropriate to themselves, only the tires and wheels. Yet the Appellate Division has held that the original takers’ “possession of the entire vehicle after it was removed from Volpe’s premises * * * as a matter of law * * * established] a taking” and that “the larceny of the car, and hence its tires and wheels, was accomplished and complete when the car was removed from the premises” (90 AD2d, at p 250 [emphasis supplied]). That ruling on the law was error because it looked only to asportation and ignored the element of intent and the factual basis in the record upon which the jury could have found that defendant’s friends’ intention was only to steal the tires and wheels, and that the entire car had been removed from Volpe’s premises only for the purpose of removing the tires and wheels.

The indictment charged defendant with larceny of the tires and wheels only. At the close of the People’s case defendant’s attorney moved to dismiss on the ground that theft of the car was complete when it was taken from Volpe’s premises. The Trial Judge overruled that motion and charged the jury on larceny of the tires and wheels only. No request for an instruction as to the intent of the original takers was made by defendant.

Of course, defendant’s own criminal responsibility turned upon his personal knowledge and intent (see Penal Law, § 20.00; People v La Belle, 18 NY2d 405, 412). Unless defendant knew that he was taking part in a recently commenced and continuing plan to steal only the tires and wheels, he could not be deemed an accomplice to the larceny of them. However, based on defendant’s statement that he knew the car had been stolen the night before and that the object of his friends was to remove the tires and wheels, there was evidence from which the jury could find that he knowingly and intentionally participated in the larceny of the tires and wheels.

To consider the asportation by the original takers without considering also their intent was inconsistent with the statutory definitions quoted above and, therefore, an error of law. The order of the Appellate Division should, therefore, be reversed and the matter remitted to that court for its review of the facts.

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

Order affirmed in a memorandum.

       The order is appealable to this court inasmuch as it was based “upon the law and such facts which, but for the determination of law, would not have led to reversal or modification” (GPL 450.90, subd 2, par [a]).

       Thus the Appellate Division opinion states (90 AD2d, at p 250) that “We agree that the evidence was insufficient to connect defendant with the theft of the car”, that “larceny of the car, and hence its tires and wheels, was accomplished and complete when the car was removed” (id.), and that “The People’s evidence in the case at bar does not lead to the inference that defendant had knowledge of his friends’ intent to steal the car" (id., at p 251 [emphasis supplied]).