text:
    In the Matter of Lorenzo F. Padilla, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted April 21, 1986;
    decided April 29, 1986
   Motion to vacate the Court of Appeals March 27, 1986 order dismissing appeal of disbarment order denied, with $20 costs. [See, 67 NY2d 870.] Motion for consolidation of appeal from disbarment order with the appeal, by permission from the suspension order, dismissed as academic. Motion for rescheduling of oral argument in the suspension order appeal denied. Motion for remand of the proceedings to the lower court denied. Motion for a stay of sanctions, and for an order compelling petitioner to serve a record on appeal, dismissed as academic.

Judge Titone taking no part.

938 67 NEW YORK REPORTS, 2d SERIES APPEALS DISMISSED PURSUANT TO RULES OF PRACTICE OF COURT OF APPEALS OR ON CONSENT (April 1, 1986 through April 30, 1986) Angulo v Security Mut. Life Ins. Co. of N. Y................................ Civil Serv. Employees Assn., Inc., Matter of, v Ford........................... Continental Bank v White........ Konigsberg, Matter of, v Coughlin Missick v Big V Supermarkets, Inc. Shapiro, Matter of, v Jones....... (2d dept: 110 AD2d 737)......... 4/8/86 (Sup Ct, NY County, Nov. 22, 1985 [94 AD2d 262]).............4/24/86 (2d dept: 112 AD2d 912)........4/21/86 (3d dept: 110 AD2d 1026)....... 4/14/86 (3d dept: 115 AD2d 808)........ 4/18/86 (3d dept: 115 AD2d 922)........ 4/14/86 APPEALS DISCONTINUED AND WITHDRAWN (April 1, 1986 through April 30, 1986) Beeman, Matter of, v Board of Educ., Oyster Bay-East Norwich Public Schools.............................. Bradley W., Matter of, v Mary Ann N. .. Der Ohannesian v Russell Sage Coll..... Duroseau v Town of Hempstead........ Gurley, Matter of, v Smith............. Howard, Matter of, v Kelly........... Hughes, Matter of, v Smith............. Lillie Mae W., Matter of................ Pondexter, Matter of, v Smith.......... Purnell, Matter of, v Kelly............. Skaneateles, Vil. of, Matter of, v Town of Skaneateles......................... Vega, Matter of, v Kelly................ Wilson, Matter of, v Kelly.............. Woldequiorquis, Matter of, v Smith..... (2d dept: 114 AD2d 359)........ 4/10/86 (4th dept: 115 AD2d 268)....... 4/10/86 (3d dept: 114 AD2d 752)........ 4/11/86 (2d dept: — AD2d —) ..........4/24/86 (4th dept: 115 AD2d 1015)......4/10/86 (4th dept: 115 AD2d 1011)......4/10/86 (4th dept: 115 AD2d 1014)......4/10/86 (4th dept: 116 AD2d 1026)..........4/10/86 (4th dept: 115 AD2d 1014)......4/10/86 (4th dept: 115 AD2d 1010)......4/10/86 (4th dept: 115 AD2d 282)....... 4/29/86 (4th dept: 115 AD2d 1011)......4/10/86 (4th dept: 115 AD2d 1011)......4/10/86 (4th dept: 115 AD2d 1015)......4/10/86 APPLICATIONS IN CRIMINAL CASES FOR LEAVE TO APPEAL (April 1, 1986 through April 30, 1986) People v Acomb .............. App Div, 4th dept, Livingston County, 11/15/85 denied 4/7/86 (Kaye, J.) People v Adams (Pamela)...... App Div, 2d dept, Queens County, 3/3/86 denied 4/17/86 (Hancock, Jr., J.) People v Adams (Willie)....... App Div, 4th dept, Monroe County, 1/29/85 denied 4/25/86 (Kaye, J.) People v Almodovar........... App Div, 1st dept, Bronx County, 2/20/86 denied 4/8/86 (Hancock, Jr., J.) People v Alvarez.............. App Div, 1st dept, Bronx County, 1/9/86 denied 4/29/86 (Titane, J.) People v Anderson............ App Div, 2d dept, Kings County, 3/17/86 denied 4/15/86 (Alexander, J.)

MEMORANDA 939 People v Aphaylath........... App Div, 4th dept, Monroe County, 2/21/86 granted 4/1/86 (Alexander, J.) NY County, 3/6/86 denied 4/17/86 (Simons, J.) NY County, 1/28/86 denied 4/24/86 (Kaye, J.) NY County, 1/28/86 denied 4/24/86 (Kaye, J.) NY County, 3/13/86 denied 4/22/86 (Titane, J.) NY County, 2/6/86 denied 4/22/86 (Meyer, J.) NY County, 1/28/86 denied 4/24/86 (Kaye, J.) NY County, 2/13/86 denied 4/8/86 (Hancock, Jr., J.) People v Austin (Calvin)....... App Div, 2d dept, Queens County, 2/10/86 denied 4/8/86 (Meyer, J.) People v Austin (Henry)....... App Div, 1st dept, NY County, 2/25/86 denied 4/7/86 (Meyer, J.) People v Austin (Richard)..... App Div, 1st dept, Bronx County, 2/20/86 denied 4/25/86 (Kaye, J.) People v Ayala............... App Div, 1st dept, Bronx County, 1/14/86 denied 4/1/86 (Meyer, J.) People v Badders............. App Div, 1st dept, Bronx County, 2/20/86 denied 4/8/86 (Meyer, J.) People v Balkum............. App Div, 4th dept, Monroe County, 2/21/86 denied 4/15/86 (Simons, J.) People v Ballentine........... App Div, 1st dept, NY County, 3/13/86 denied 4/15/86 (Wachtler, Ch. J.) People v Banks (Chris)........ App Div, 2d dept, Nassau County, 12/16/85 denied 4/18/86 (Kaye, J.) People v Banks (Christopher) .. App Div, 2d dept, Kings County, 2/3/86 denied 4/22/86 (Titane, J.) People v Barnett.............. App Div, 1st dept, NY County, 3/13/86 denied 4/21/86 (Hancock, Jr., J.) People v Barton.............. Onondaga County Ct, 3/18/86 denied 4/15/86 (Simons, J.) People v Basque.............. App Div, 1st dept, NY County, 3/27/86 withdrawn 4/18/86 (Alexander, J.) People v Beato................ App Div, 3d dept, Sullivan County, 12/10/85 denied 4/1/86 (Meyer, J.) People v Been................ App Div, 1st dept, Bronx County, 1/28/86 denied 4/10/86 (Simons, J.) People v Bennett............. App Div, 1st dept, NY County, 1/30/86 denied 4/10/86 (Alexander, J.) People v Bensching........... App Div, 4th dept, Cattaraugus County, 2/21/86 denied 4/25/86 (Kaye, J.) People v Benton.............. App Div, 3d dept, Sullivan County, 12/10/85 denied 4/1/86 (Meyer, J.) People v Bermudez............ App Div, 2d dept, Kings County, 2/24/86 denied 4/8/86 (Hancock, Jr., J.) People v Bienvenido .......... App Div, 2d dept, Queens County, 12/16/85 denied 4/2/86 (Alexander, J.) People v Archer.............. App Div, 1st dept, People v Armansa............ App Div, 1st dept, People v Armazo.............. App Div, 1st dept, People v Arrington (Alex)..... App Div, 1st dept, People v Arrington (Kelvin) ... App Div, 1st dept, People v Arsa................ App Div, 1st dept, People v Ausgood............. App Div, 1st dept,

940 67 NEW YORK REPORTS, 2d SERIES People v Bolling.............. App Div, People v Bonilla.............. App Div, People v Bow................. App Div, People v Brennan............. App Div, People v Brinsko.............. App Div, People v Brooks (Michael)..... App Div, People v Brooks (William)..... App Div, People v Brown (Bernard)..... App Div, People v Brown (John)........ App Div, People v Brown (Mannie)...... App Div, People v Brown (Raymond)____ App Div, People v Brunson............. App Div, People v Buchicchio........... App Div, People v Buenaventura........ App Div, People v Caldwell............. App Div, People v Camarano........... App Div, People v Campbell............ App Div, People v Candelario........... App Div, People v Carroll (Gilbert)...... App Div, People v Carroll (James)....... App Div, People v Casanova............ App Div, People v Casiano.............. App Div, People v Chambers............ App Div, People v Chance.............. App Div, People v Chapman............ App Div, People v Charles.............. App Div, People v Christie (Brian)...... App Div, 2d dept, Suffolk County, 12/2/85 denied 4/17/86 (Meyer, J.) 1st dept, Bronx County, 2/13/86 denied 4/18/86 (Wachtler, Ch. J.) 1st dept, Bronx County, 3/6/86 denied 4/22/86 (Wachtler, Ch. J.) 1st dept, NY County, 2/6/86 denied 4/16/86 (Alexander, J.) 3d dept, Broome County, 1/13/86 denied 4/3/86 (Alexander, J.) 1st dept, NY County, 2/20/86 denied 4/7/86 (Meyer, J.) 4th dept, Erie County, 2/21/86 denied 4/16/86 (Titane, J.) 1st dept, Bronx County, 1/21/86 denied 4/10/86 (Alexander, J.) 2d dept, Queens County, 2/18/86 denied 4/16/86 (Titane, J.) 2d dept, Kings County, 12/16/85 denied 4/1/86 (Meyer, J.) 2d dept, Kings County, 12/16/85 denied 4/1/86 (Meyer, J.) 4th dept, Erie County, 11/15/85 denied 4/4/86 (Titane, J.) 2d dept, Westchester County, 1/27/86 denied 4/14/86 (Hancock, Jr., J.) 1st dept, NY County, 3/6/86 denied 4/3/86 (Wachtler, Ch. J.) 4th dept, Niagara County, 1/24/86 denied 4/8/86 (Kaye, J.) 1st dept, NY County, 2/27/86 denied 4/7/86 (Hancock, Jr., J.) 1st dept, NY County, 1/7/86 denied 4/8/86 (Kaye, J.) 1st dept, NY County, 11/21/85 denied 4/22/86 (Titane, J.) (upon reconsideration) 2d dept, Suffolk County, 2/24/86 denied 4/22/86 (Wachtler, Ch. J.) 4th dept, Cattaraugus County, 2/21/86 denied 4/16/86 (Titane, J.) 2d dept, Kings County, 2/18/86 denied 4/15/86 (Simons, J.) 2d dept, Kings County, 2/18/86 withdrawn 4/25/86 (Alexander, J.) 1st dept, Bronx County, 1/30/86 denied 4/10/86 (Simons, J.) 2d dept, Queens County, 2/3/86 denied 4/8/86 (Hancock, Jr., J.) 3d dept, Albany County, 1/2/86 denied 4/7/86 (Kaye, J.) 1st dept, Bronx County, 2/4/86 denied 4/15/86 (Wachtler, Ch. J.) 1st dept, Bronx County, 3/13/86 denied 4/22/86 (Meyer, J.)

MEMORANDA 941 People v Christie (Bryan)...... App Div, People v Clark................ App Div, People v Claudio.............. App Div, People v Comfort............. App Div, People v Compitiello.......... App Div, People v Connolly............. App Div, People v Cook (Alonzo)........ App Div, People v Cook (Karen)......... App Div, People v Cook (Melvin)........ App Div, People v Cook (Pernell)........ App Div, People v Coonan.............. App Div, People v Covington........... App Div, People v Crosby (Gregory)..... App Div, People v Crosby (Jonathan)____ App Div, People v Cruzado............. App Div, People v Cunningham......... App Div, People v Daniely.............. App Div, People v Davis................ App Div, People v Delee................ App Div, People v Delgado............. App Div, People v Dellarocco........... App Div, People v Delvalle............. App Div, People v Demming............ App Div, People v De Rosa............. App Div, People v Dery................ App Div, People v De Santis............ App Div, People v Dexter............... App Div, 1st dept, Bronx County, 3/13/86 denied 4/22/86 (Meyer, 3d dept, Broome County, 1/7/86 denied 4/22/86 (Titane, 1st dept, Bronx County, 1/28/86 denied 4/9/86 (Alexander, 4th dept, Steuben County, 1/24/86 denied 4/7/86 (Simons, 2d dept, Queens County, 3/17/86 denied 4/28/86 (Hancock, Jr., 1st dept, Bronx County, 2/13/86 denied 4/10/86 (Simons, 1st dept, NY County, 12/5/85 denied 4/4/86 (Alexander, 4th dept, Monroe County, 2/21/86 denied 4/9/86 (Wachtler, Ch. 2d dept, Kings County, 2/10/86 denied 4/3/86 (Wachtler, Ch. 2d dept, Nassau County, 2/18/86 denied 4/8/86 (Alexander, 1st dept, NY County, 12/10/85 denied 4/24/86 (Kaye, 1st dept, NY County, 2/27/86 denied 4/28/86 (Meyer, 2d dept, Kings County, 1/27/86 denied 4/24/86 (Kaye, 4th dept, Erie County, 12/20/85 denied 4/7/86 (Kaye, 1st dept, NY County, 2/20/86 denied 4/14/86 (Kaye, 2d dept, Nassau County, 1/13/86 denied 4/10/86 (Alexander, 2d dept, Nassau County, 1/21/86 denied 4/24/86 (Kaye, 1st dept, Bronx County, 2/20/86 denied 4/8/86 (Meyer, 1st dept, NY County, 3/13/86 denied 4/10/86 (Hancock, Jr., 1st dept, NY County, 2/20/86 denied 4/1/86 (Meyer, 3d dept, Broome County, 1/7/86 denied 4/3/86 (Alexander, 1st dept, NY County, 2/25/86 denied 4/9/86 (Alexander, 3d dept, Tompkins County, 2/10/86 denied 4/15/86 (Hancock, Jr., 1st dept, NY County, 2/20/86 denied 4/8/86 (Meyer, 4th dept, Onondaga County, 12/20/85 denied 4/15/86 (Simons, 1st dept, NY County, 3/4/86 denied 4/9/86 (Wachtler, Ch. 1st dept, NY County, 2/25/86 denied 4/24/86 (Kaye, J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.) J.)

942 67 NEW YORK REPORTS, 2d SERIES People v Diaz (Jose)........... App Div, 1st dept, Bronx County, 2/25/86 denied 4/28/86 (Kaye, J.) People v Diaz (Robert)......... App Div, 1st dept, NY County, 1/14/86 denied 4/10/86 (Alexander, J.) People v Diaz (Roberto)........ App Div, 1st dept, Bronx County, 2/20/86 denied 4/8/86 (Hancock, Jr., J.) People v Di Lucchio........... App Div, 2d dept, Queens County, 12/9/85 denied 4/2/86 (Kaye, J.) People v Divine............... App Div, 2d dept, Queens County, 2/18/86 denied 4/3/86 (Wachtler, Ch. J.) People v Dominy.............. App Div, 3d dept, Schenectady County, 2/7/86 denied 4/16/86 (Titane, J.) People v Donovan............. App Div, 2d dept, Queens County, 3/17/86 denied 4/22/86 (Hancock, Jr., J.) People v Doyle................ App Div, 1st dept, Bronx County, 12/5/85 denied 4/3/86 (Wachtler, Ch. J.) People v Dukes............... App Div, 4th dept, Monroe County, 2/21/86 denied 4/11/86 (Alexander, J.) People v Duncan.............. App Div, 2d dept, Queens County, 1/21/86 denied 4/1/86 (Hancock, Jr., J.) People v Dunham............. Steuben County Ct, 1/7/86 denied 4/8/86 (Kaye, J.) People v Edwards............. App Div, 2d dept, Queens County, 3/3/86 denied 4/8/86 (Hancock, Jr., J.) People v English.............. App Div, 1st dept, NY County, 2/13/86 denied 4/23/86 (Kaye, J.) People v Evans............... App Div, 2d dept, Kings County, 2/27/86 dismissed 4/4/86 (Alexander, J.) People v Facey............... App Div, 4th dept, Jefferson County, 2/21/86 granted 4/22/86 (Simons, J.) People v Falco................ App Div, 2d dept, Suffolk County, 2/18/86 denied 4/15/86 (Titane, J.) People v Ferkins.............. App Div, 3d dept, Sullivan County, 1/28/86 denied 4/8/86 (Wachtler, Ch. J.) People v Fernandez (Arnold)... App Div, 1st dept, NY County, 3/18/86 denied 4/21/86 (Simons, J.) People v Fernandez (Primo) ... App Div, 2d dept, Westchester County, 12/30/85 granted 4/4/86 (Simons, J.) People v Fields............... App Div, 4th dept, Erie County, 2/21/86 denied 4/2/86 (Alexander, J.) People v Foust................ App Div, 2d dept, Kings County, 2/3/86 denied 4/3/86 (Wachtler, Ch. J.) People v France.............. App Div, 2d dept, Queens County, 12/16/85 denied 4/24/86 (Kaye, J.) People v Freeman............ App Div, 1st dept, NY County, 2/13/86 denied 4/4/86 (Titane, J.) People v Fulton............... Niagara County Ct, 1/28/86 denied 4/3/86 (Wachtler, Ch. J.) People v Gaddis .............. App Div, 4th dept, Onondaga County, 1/24/86 denied 4/7/86 (Simons, J.) People v Gairy................ App Div, 2d dept, Kings County, 1/27/86 denied 4/22/86 (Wachtler, Ch. J.) People v Gallina.............. App Term, Kings County, 2/6/86 denied 4/24/86 (Kaye, J.)

MEMORANDA 943 People v García............... App Div, 3d dept, Clinton County, 3/12/86 denied 4/22/86 (Titane, J.) People v Garland............. App Div, 1st dept, NY County, 4/1/86 granted and fixed bail 4/29/86 (Titane, J.) 1st dept, NY County, 2/6/86 denied 4/22/86 (Meyer, J.) 2d dept, Queens County, 3/24/86 denied 4/16/86 (Kaye, J.) 1st dept, Bronx County, 1/2/86 dismissed 4/16/86 (Kaye, J.) 2d dept, Westchester County, 1/21/86 denied 4/3/86 (Alexander, J.) 1st dept, Bronx County, 2/4/86 denied 4/11/86 (Alexander, J.) 4th dept, Erie County, 1/24/86 granted 4/14/86 (Wachtler, Ch. J.) 2d dept, Queens County, 2/10/86 denied 4/10/86 (Hancock, Jr., J.) 1st dept, Bronx County, 4/2/85 dismissed 4/23/86 (Alexander, J.) 1st dept, Bronx County, 11/26/85 denied 4/7/86 (Kaye, J.) 1st dept, Bronx County, 2/4/86 denied 4/17/86 (Hancock, Jr., J.) 1st dept, NY County, 3/13/86 denied 4/15/86 (Hancock, Jr., J.) 1st dept, NY County, 1/16/86 denied 4/7/86 (Kaye, J.) 1st dept, Bronx County, 2/13/86 denied 4/1/86 (Hancock, Jr., J.) People v Gormley............. App Term, Kings County, 2/19/86 denied 4/29/86 (Titane, J.) People v Grant (Claude)....... App Term, Suffolk County, 3/7/86 denied 4/8/86 (Meyer, J.) People v Grant (Robert)....... App Div, 2d dept, Queens County, 12/16/85 denied 4/17/86 (Meyer, J.) (upon reconsideration) People v Graves.............. App Div, 1st dept, Bronx County, 2/25/86 denied 4/23/86 (Kaye, J.) People v Green (Anton) ....... App Div, 1st dept, Bronx County, 3/20/86 granted 4/28/86 (Meyer, J.) People v Green (Leroy)........ App Div, 4th dept, Oneida County, 9/27/85 denied 4/23/86 (Kaye, J.) People v Green (Leroy E.)..... App Div, 4th dept, Oneida County, 3/10/86 dismissed 4/2/86 (Kaye, J.) People v Griffin............... App Div, 1st dept, NY County, 3/20/86 denied 4/17/86 (Hancock, Jr., J.) People v Griffiths............. App Div, 4th dept, Oneida County, 7/12/85 denied 4/4/86 (Kaye, J.) People v Guthrie.............. App Div, 1st dept, NY County, 3/11/86 denied 4/11/86 (Meyer, J.) People v Hamel............... App Div, 3d dept, Albany County, 2/13/86 denied 4/7/86 (Simons, J.) People v Hammond........... App Div, 3d dept, Albany County, 1/16/86 denied 4/10/86 (Simons, J.) People v Gaskins............. App Div, People v Gebert............... App Div, People v Gibbs................ App Div, People v Gilliard.............. App Div, People v Gilmore............. App Div, People v Gipson.............. App Div, People v Glenn............... App Div, People v Glover............... App Div, People v Godwin.............. App Div, People v Goldenberg.......... App Div, People v Gonzalez (Jeanette)... App Div, People v Gonzalez (Jose)....... App Div, People v Gordon.............. App Div,

944 67 NEW YORK REPORTS, 2d SERIES People v Harris (Carole)....... App Div, 1st dept, NY County, 3/4/86 denied 4/3/86 (Wachtler, Ch. J.) People v Harris (Marvin)...... App Div, 3d dept, Broome County, 3/13/86 denied 4/29/86 (Titane, J.) People v Harris (Ronald)...... App Div, 1st dept, NY County, 1/21/86 denied 4/18/86 (Kaye, J.) People v Haynes (David)....... App Div, 1st dept, Bronx County, 1/16/86 denied 4/7/86 (Alexander, J.) People v Haynes (Ronald)..... App Div, 1st dept, NY County, 3/11/86 denied 4/18/86 (Wachtler, Ch. J.) People v Henry............... App Div, 2d dept, Kings County, 1/27/86 denied 4/4/86 (Alexander, J.) People v Hepp................ App Div, 4th dept, Onondaga County, 2/21/86 denied 4/1/86 (Meyer, J.) People v Hernandez........... App Div, 1st dept, Bronx County, 3/20/86 denied 4/29/86 (Titane, J.) People v Higgins.............. App Div, 2d dept, Queens County, 3/3/86 denied 4/10/86 (Hancock, Jr., J.) People v Hill................. App Div, 4th dept, Onondaga County, 2/21/86 denied 4/25/86 (Kaye, J.) People v Hodges.............. App Div, 4th dept, Erie County, 2/21/86 denied 4/1/86 (Meyer, J.) People v Holman............. App Div, 1st dept, NY County, 2/20/86 denied 4/7/86 (Hancock, Jr., J.) People v Horton.............. App Div, 1st dept, NY County, 12/26/85 denied 4/25/86 (Kaye, J.) People v Inocencio............ App Div, 1st dept, NY County, 2/4/86 denied 4/9/86 (Alexander, J.) People v Irizarry.............. App Div, 1st dept, Bronx County, 3/6/86 denied 4/16/86 (Titane, J.) People v Isaac................ App Div, 2d dept, Kings County, 6/17/85 denied 4/18/86 (Wachtler, Ch. J.) People v Jackson (Anthony) ... App Div, 2d dept, Queens County, 2/24/86 denied 4/17/86 (Meyer, J.) People v Jackson (Benny)...... App Div, 2d dept, Kings County, 3/24/86 denied 4/22/86 (Hancock, Jr., J.) People v Jackson (Floyd)...... App Div, 1st dept, Bronx County, 3/13/86 denied 4/22/86 (Titane, J.) People v Jackson (Sylvester)... App Div, 2d dept, Dutchess County, 2/3/86 denied 4/1/86 (Meyer, J.) People v Jarrett.............. App Div, 2d dept, Rockland County, 3/10/86 denied 4/1/86 (Alexander, J.) People v Jarvis............... App Div, 1st dept, NY County, 3/13/86 denied 4/16/86 (Titane, J.) People v Jenkins (Eric)........ App Div, 2d dept, Kings County, 3/17/86 denied 4/22/86 (Wachtler, Ch. J.) People v Jenkins (Robert)..... App Div, 2d dept, Nassau County, 11/12/85 denied 4/23/86 (Kaye, J.) People v Johnson (Larry)...... App Div, 1st dept, Bronx County, 10/31/85 denied 4/1/86 (Meyer, J.) People v Johnson (Wayne)..... App Div, 1st dept, Bronx County, 1/30/86 denied 4/10/86 (Alexander, J.) People v Jones (Eddie)......... App Div, 1st dept, NY County, 1/21/86 denied 4/2/86 (Kaye, J.)

MEMORANDA 945 People v Jones (Joseph)....... App Div, 1st dept, NY County, 3/20/86 granted 4/17/86 (Simons, J.) People v Jones (Lesley)........ App Div, 2d dept, Queens County, 1/21/86 denied 4/10/86 (Hancock, Jr., J.) People v Jones (Ralph)........ App Div, 1st dept, Bronx County, 3/25/86 denied 4/29/86 (Titane, J.) People v Jordan.............. App Div, 1st dept, Bronx County, 2/27/86 denied 4/9/86 (Wachtler, Ch. J.) People v Joyner.............. App Div, 1st dept, Bronx County, 1/16/86 denied 4/23/86 (Kaye, J.) People v Keindl............... App Div, 2d dept, Queens County, 2/10/86 granted 4/8/86 (Hancock, Jr., J.) People v Kelly (Michael)....... App Div, 3d dept, Albany County, 1/23/86 denied 4/1/86 (Hancock, Jr., J.) People v Kelly (Willis)......... App Div, 2d dept, Suffolk County, 2/10/86 denied 4/15/86 (Simons, J.) People v Kennerly............ App Div, 2d dept, Nassau County, 2/3/86 denied 4/7/86 (Simons, J.) People v Kenney.............. Erie County Ct, 11/14/85 denied 4/1/86 (Simons, J.) People v Kenyatta (Jomo)..... App Div, 2d dept, Kings County, 1/27/86 denied 4/1/86 (Hancock, Jr., J.) People v Kenyatta (Jomo)..... App Div, 2d dept, Kings County, 2/18/86 denied 4/16/86 (Titane, J.) People v Klem................ App Div, 4th dept, Monroe County, 12/20/85 denied 4/2/86 (Kaye, J.) People v Klemas.............. App Div, 1st dept, Bronx County, 2/13/86 denied 4/17/86 (Meyer, J.) People v Klock............... Onondaga County Ct, 3/11/86 denied 4/16/86 (Alexander, J.) People v Knapp............... App Div, 3d dept, Otsego County, 2/4/86 denied 4/2/86 (Simons, J.) People v Koenig.............. App Div, 3d dept, Rensselaer County, 1/14/86 denied 4/10/86 (Simons, J.) People v Kolb (Edward)....... App Div, 2d dept, Suffolk County, 3/3/86 denied 4/16/86 (Titane, J.) People v Kolb (Michael)....... App Div, 2d dept, Suffolk County, 3/3/86 denied 4/16/86 (Titane, J.) People v Kotler............... App Div, 2d dept, Suffolk County, 3/3/86 denied 4/10/86 (Hancock, Jr., J.) People v Krasnewicz.......... App Div, 4th dept, Chautauqua County, 1/24/86 denied 4/7/86 (Simons, J.) People v Lancaster............ App Div, 4th dept, Onondaga County, 1/24/86 granted 4/22/86 (Simons, J.) People v Lanzillotti........... App Term, Orange County, 3/7/86 denied 4/4/86 (Kaye, J.) People v Lebrón (Rafael)...... App Div, 1st dept, Bronx County, 2/25/86 denied 4/8/86 (Hancock, Jr., J.) People v Lebrón (Ramon)...... App Term, Bronx County, 3/4/86 denied 4/10/86 (Alexander, J.) People v Lee (Ronald)......... App Div, 2d dept, Kings County, 1/27/86 denied 4/10/86 (Simons, J.) People v Lee (Serena)......... App Div, 2d dept, Kings County, 3/3/86 denied 4/4/86 (Meyer, J.)

946 67 NEW YORK REPORTS, 2d SERIES People v Leung.............. App Div, 2d dept, Queens County, 1/21/86 granted 4/7/86 (Kaye, J.) People v Liller............... App Div, 3d dept, Chemung County, 2/10/86 denied 4/25/86 (Kaye, J.) People v Lindsay............ App Div, 1st dept, Bronx County, 3/20/86 denied 4/11/86 (Alexander, J.) People v Lindsey............. App Div, 4th dept, Onondaga County, 4/4/86 denied 4/25/86 (Meyer, J.) People v Little............... App Div, 1st dept, Bronx County, 3/4/86 denied 4/1/86 (Hancock, Jr., J.) People v Lombardi (James) ... App Div, 1st dept, Bronx County, 1/7/86 denied 4/14/86 (Simons, J.) (upon reconsideration) People v Lombardi (James) ... App Div, 1st dept, Bronx County, 1/9/86 denied 4/14/86 (Simons, J.) People v Lombardo .......... (upon reconsideration) App Div, 1st dept, NY County, 3/4/86 denied 4/22/86 (Titane, J.) People v Lopez (Eugene)...... App Div, 2d dept, Queens County, 12/23/85 denied 4/15/86 (Hancock, Jr., J.) People v Lopez (Harold)...... App Div, 2d dept, Kings County, 2/10/86 denied 4/3/86 (Wachtler, Ch. J.) People v Lowe............... App Div, 2d dept, Queens County, 2/18/86 denied 4/24/86 (Kaye, J.) People v Lynch.............. App Div, 1st dept, NY County, 2/27/86 denied 4/2/86 (Alexander, J.) People v Mack............... App Div, 1st dept, NY County, 12/26/85 denied 4/1/86 (Meyer, J.) People v Mackie............. App Div, 1st dept, NY County, 2/27/86 denied 4/17/86 (Simons, J.) People v Macon.............. App Div, 1st dept, Bronx County, 3/18/86 dismissed 4/16/86 (Wachtler, Ch. J.) People v Mangot............. App Div, 2d dept, Queens County, 12/30/85 People v Manor.............. denied 4/4/86 (Kaye, J.) App Div, 3d dept, Albany County, 2/10/86 denied 4/24/86 (Kaye, J.) People v Maracle............ App Div, 4th dept, Niagara County, 1/24/86 denied 4/4/86 (Alexander, J.) People v Marquez............ App Div, 1st dept, Bronx County, 1/21/86 denied 4/1/86 (Hancock, Jr., J.) People v Marrero (Adolfo) .... App Div, 1st dept, Bronx County, 2/20/86 denied 4/17/86 (Meyer, J.) People v Marrero (Aníbal)_____ App Div, 2d dept, Kings County, 2/3/86 denied 4/18/86 (Wachtler, Ch. J.) People v Marte.............. App Div, 2d dept, Queens County, 2/3/86 denied 4/25/86 (Kaye, J.) People v Martin............. App Div, 2d dept, Queens County, 2/18/86 denied 4/3/86 (Wachtler, Ch. J.) People v Martinez (Maria)..... App Div, 1st dept, Bronx County, 2/25/86 denied 4/18/86 (Wachtler, Ch. J.) People v Martinez (Rafael)_____ App Div, 2d dept, Kings County, 1/27/86 denied 4/10/86 (Simons, J.) People v Martinez (Robert)____ App Div, 1st dept, NY County, 3/13/86 denied 4/25/86 (Kaye, J.)

MEMORANDA 947 People v Martinez (Roberto) ... App Div, 4th dept, Monroe County, 2/21/86 denied 4/2/86 (Alexander, J.) People v Mathis.............. App Div, 2d dept, Dutchess County, 3/3/86 denied 4/18/86 (Wachtler, Ch. J.) People v Maza................ App Div, 1st dept, Bronx County, 3/11/86 denied 4/15/86 (Hancock, Jr., J.) People v McCaskill............ App Div, 2d dept, Queens County, 2/18/86 denied 4/1/86 (Hancock, Jr., J.) People v McGee .............. App Div, 4th dept, Erie County, 1/24/86 granted 4/14/86 (Wachtler, Ch. J.) People v McNeil.............. App Div, 1st dept, NY County, 2/25/86 denied 4/23/86 (Kaye, J.) People v Mejia................ App Div, 1st dept, NY County, 1/2/86 denied 4/21/86 (Kaye, J.) People v Melendez............ App Div, 1st dept, NY County, 1/30/86 denied 4/7/86 (Meyer, J.) People v Merritt.............. App Div, 2d dept, Kings County, 2/3/86 denied 4/3/86 (Simons, J.) People v Michael............. App Div, 2d dept, Queens County, 12/2/85 denied 4/9/86 (Alexander, J.) People v Miller............... App Div, 2d dept, Nassau County, 1/13/86 denied 4/8/86 (Alexander, J.) People v Minor............... App Div, 1st dept, NY County, 3/20/86 denied 4/16/86 (Alexander, J.) People v Mitchell............. App Div, 2d dept, Kings County, 1/27/86 denied 4/17/86 (Simons, J.) People v Montalvo............ App Div, 1st dept, NY County, 3/11/86 denied 4/22/86 (Hancock, Jr., J.) People v Moore (Duane)....... App Div, 2d dept, Nassau County, 3/11/86 dismissed 4/23/86 (Titane, J.) People v Moore (Lesley)....... App Div, 2d dept, Queens County, 1/21/86 denied 4/1/86 (Hancock, Jr., J.) People v Morales (Jaime)...... App Div, 1st dept, NY County, 2/25/86 denied 4/4/86 (Titane, J.) People v Morales (Jimmy)..... App Div, 1st dept, NY County, 2/25/86 denied 4/4/86 (Titane, J.) People v Morales (Jose)........ App Div, 1st dept, NY County, 2/4/86 denied 4/3/86 (Wachtler, Ch. J.) People v Morales (Julio)....... App Div, 1st dept, Bronx County, 1/23/86 denied 4/8/86 (Kaye, J.) People v Morris............... App Div, 2d dept, Queens County, 3/3/86 denied 4/28/86 (Meyer, J.) People v Morton.............. App Div, 2d dept, Queens County, 2/3/86 denied 4/4/86 (Titane, J.) People v Murillo.............. App Div, 1st dept, NY County, 2/13/86 denied 4/1/86 (Hancock, Jr., J.) People v Murray.............. App Div, 1st dept, NY County, 3/11/86 denied 4/10/86 (Alexander, J.) People v Nappi............... App Div, 4th dept, Herkimer County, 12/20/85 denied 4/22/86 (Simons, J.) People v Nash................ App Div, 1st dept, NY County, 1/14/86 denied 4/11/86 (Alexander, J.) People v Nelson.............. App Div, 2d dept, Queens County, 3/3/86 denied 4/22/86 (Titane, J.)

948 67 NEW YORK REPORTS, 2d SERIES People v Nesbitt (Darryl)...... App Div, 1st dept, Bronx County, 1/28/86 denied 4/28/86 (Kaye, J.) People v Nesbitt (Darryll)..... App Div, 1st dept, Bronx County, 1/28/86 denied 4/28/86 (Kaye, J.) People v Nieves............... App Div, 1st dept, Bronx County, 1/16/86 denied 4/7/86 (Meyer, J.) People v Norman............. App Div, 2d dept, Westchester County, 7/15/85 denied 4/21/86 (Meyer, J.) People v Nosek............... App Term, Nassau County, 1/17/86 denied 4/3/86 (Wachtler, Ch. J.) People v Nunes............... App Div, 2d dept, Kings County, 3/3/86 denied 4/22/86 (Titane, J.) People v Oakley.............. App Div, 2d dept, Suffolk County, 1/31/86 dismissed 4/9/86 (Wachtler, Ch. J.) People v O’Hare.............. App Div, 2d dept, Suffolk County, 2/18/86 denied 4/15/86 (Titane, J.) People v Olivo................ App Div, 1st dept, Bronx County, 3/4/86 denied 4/28/86 (Kaye, J.) People v Orellanes............ App Div, 1st dept, Bronx County, 2/20/86 denied 4/17/86 (Simons, J.) People v Ortiz................ App Div, 2d dept, Kings County, 1/13/86 denied 4/8/86 (Kaye, J.) People v Pacheco............. App Div, 1st dept, NY County, 2/20/86 denied 4/9/86 (Wachtler, Ch. J.) People v Parker (David)....... App Div, 1st dept, NY County, 12/26/85 denied 4/1/86 (Meyer, J.) People v Parker (Gary)........ App Div, 3d dept, Albany County, 2/13/86 denied 4/18/86 (Kaye, J.) People v Paul................. App Div, 2d dept, Dutchess County, 1/27/86 denied 4/7/86 (Simons, J.) People v Pawlowski........... App Div, 4th dept, Genesee County, 1/24/86 denied 4/17/86 (Meyer, J.) People v Pekar............... App Div, 2d dept, Kings County, 1/13/86 denied 4/4/86 (Alexander, J.) People v Peoples.............. App Div, 4th dept, Erie County, 2/21/86 denied 4/17/86 (Simons, J.) People v Perez (Jesus)......... App Div, 2d dept, Kings County, 3/10/86 denied 4/18/86 (Meyer, J.) People v Perez (Peter)......... App Div, 2d dept, Westchester County, 3/24/86 dismissed 4/17/86 (Simons, J.) People v Perez (Ralph)........ App Div, 1st dept, NY County, 2/4/86 denied 4/9/86 (Alexander, J.) People v Perrington........... App Term, Bronx County, 3/18/86 denied 4/21/86 (Simons, J.) People v Peterson............. App Div, 1st dept, NY County, 1/2/86 denied 4/29/86 (Titane, J.) People v Phillips.............. App Div, 2d dept, Kings County, 3/3/86 denied 4/3/86 (Meyer, J.) People v Phillmore............ App Div, 1st dept, Bronx County, 2/20/86 denied 4/15/86 (Hancock, Jr., J.) People v Pistone.............. App Div, 2d dept, Kings County, 2/24/86 denied 4/1/86 (Hancock, Jr., J.) People v Pitsley.............. App Div, 4th dept, Onondaga County, 2/21/86 denied 4/22/86 (Wachtler, Ch. J.)

MEMORANDA 949 App Div, 1st dept, Bronx County, 3/18/86 granted 4/22/86 (Titane, J.) App Div, 1st dept, NY County, 2/27/86 denied 4/8/86 (Hancock, Jr., J.) App Div, 3d dept, Albany County, 3/5/86 denied 4/16/86 (Titane, J.) App Div, 2d dept, Kings County, 3/3/86 denied 4/2/86 (Alexander, J.) App Div, 2d dept, Westchester County, 2/3/86 denied 4/16/86 (Alexander, J.) App Div, 4th dept, Onondaga County, 1/24/86 denied 4/18/86 (Kaye, J.) App Term, Kings County, 2/20/86 granted 4/14/86 (Alexander, J.) App Term, Kings County, 2/20/86 granted 4/14/86 (Alexander, J.) App Div, 1st dept, Bronx County, 12/19/85 granted 4/21/86 (Wachtler, Ch. J.) App Div, 1st dept, Bronx County, 2/20/86 denied 4/24/86 (Hancock, Jr., J.) App Div, 1st dept, Bronx County, 3/13/86 denied 4/28/86 (Meyer, J.) App Div, 1st dept, Bronx County, 12/5/85 denied 4/10/86 (Alexander, J.) App Div, 2d dept, Westchester County, 1/13/86 denied 4/7/86 (Alexander, J.) App Div, 4th dept, Onondaga County, 1/24/86 denied 4/22/86 (Meyer, J.) (upon reconsideration) App Div, 1st dept, NY County, 12/26/85 denied 4/1/86 (Meyer, J.) App Div, 2d dept, Queens County, 2/3/86 denied 4/7/86 (Meyer, J.) App Div, 1st dept, NY County, 3/11/86 denied 4/23/86 (Hancock, Jr., J.) App Div, 1st dept, Bronx County, 12/10/85 denied 4/8/86 (Alexander, J.) App Div, 1st dept, Bronx County, 3/25/86 denied 4/21/86 (Simons, J.) App Div, 2d dept, Kings County, 3/24/86 denied 4/24/86 (Hancock, Jr., J.) App Div, 2d dept, Kings County, 3/24/86 denied 4/21/86 (Hancock, Jr., J.) App Div, 3d dept, Albany County, 2/10/86 granted 4/17/86 (Hancock, Jr., J.) App Div, 2d dept, Queens County, 2/10/86 denied 4/4/86 (Titane, J.) App Div, 2d dept, Queens County, 2/10/86 denied 4/4/86 (Titane, J.) App Div, 1st dept, NY County, 3/13/86 denied 4/11/86 (Meyer, J.) People v Robinson (Theodore).. App Div, 2d dept, Kings County, 2/10/86 denied 4/3/86 (Wachtler, Ch. J.) People v Rodriguez (Avelino)... App Div, 1st dept, Bronx County, 3/18/86 denied 4/17/86 (Hancock, Jr., J.) People v Pons............... People v Porter.............. People v Preville............. People v Price............... People v Quinn.............. People v Racona............. People v Ranghelle (Joseph) .. People v Ranghelle (Patsy) ... People v Reid................ People v Resto............... People v Reyes (Francisco)____ People v Reyes (Luis)......... People v Reyes (Ricardo)..... People v Richards............ People v Richardson......... People v Riley............... People v Rios................ People v Rivera (Fernando)... People v Rivera (Jose)........ People v Rizzo............... People v Robbins............ People v Robinson (John)..... People v Robinson (Kenneth) . People v Robinson (Kenny) ... People v Robinson (Lydia)____

950 67 NEW YORK REPORTS, 2d SERIES People v Rodriguez (Gabriel)... App Div, 1st dept, Bronx County, 1/29/85 granted 4/15/86 (Wachtler, Ch. J.) People v Rodriguez (Larry)---- App Div, 1st dept, Bronx County, 3/20/86 denied 4/15/86 (Alexander, J.) People v Rodriguez (Santos)---- App Div, 2d dept, Kings County, 1/27/86 denied 4/7/86 (Simons, J.) People v Roe................. App Div, 2d dept, Queens County, 2/18/86 denied 4/1/86 (Meyer, J.) People v Roman.............. App Div, 1st dept, NY County, 2/13/86 denied 4/3/86 (Wachtler, Ch. J.) People v Rondan.............. App Div, 2d dept, Kings County, 1/27/86 denied 4/11/86 (Alexander, J.) People v Rosa................ App Div, 1st dept, NY County, 1/9/86 denied 4/22/86 (Meyer, J.) People v Rosario.............. App Div, 1st dept, Bronx County, 3/20/86 denied 4/22/86 (Titane, J.) People v Rosso................ App Term, Westchester County, 12/30/85 denied 4/7/86 (Alexander, J.) People v Rowe................ App Div, 1st dept, NY County, 12/26/85 denied 4/25/86 (Kaye, J.) People v Rowe (William)....... App Div, 2d dept, Queens County, 2/18/86 denied 4/1/86 (Meyer, J.) People v Ruggeri.............. App Div, 1st dept, NY County, 3/25/86 denied 4/24/86 (Hancock, Jr., J.) People v Ruggierio............ App Div, 1st dept, NY County, 3/25/86 denied 4/24/86 (Hancock, Jr., J.) People v Rullo................ App Div, 2d dept, Queens County, 2/3/86 denied 4/18/86 (Kaye, J.) People v Rumph.............. App Term, Kings County, 2/6/86 denied 4/4/86 (Alexander, J.) People v Sanchez (Nora)....... App Div, 1st dept, Bronx County, 2/20/86 denied 4/8/86 (Meyer, J.) People v Sanchez (Ramon)..... App Div, 2d dept, Orange County, 2/10/86 denied 4/15/86 (Simons, J.) People v Santillana........... App Div, 2d dept, Kings County, 3/10/86 denied 4/21/86 (Simons, J.) People v Saunders............ App Div, 2d dept, Kings County, 3/3/86 denied 4/3/86 (Meyer, J.) People v Sciascia............. App Div, 2d dept, Kings County, 12/23/85 denied 4/8/86 (Kaye, J.) People v Selby................ App Div, 2d dept, Kings County, 1/13/86 denied 4/18/86 (Kaye, J.) People v Serrano ............. App Div, 1st dept, NY County, 1/21/86 denied 4/23/86 (Kaye, J.) People v Shabala............. App Div, 3d dept, Chemung County, 3/10/86 denied 4/3/86 (Wachtler, Ch. J.) People v Shabazz............. App Div, 2d dept, Kings County, 2/10/86 denied 4/9/86 (Alexander, J.) People v Shapiro.............. App Div, 2d dept, Kings County, 2/10/86 denied 4/28/86 (Meyer, J.) People v Sharrieff............. App Div, 2d dept, Queens County, 2/3/86 dismissed 4/3/86 (Wachtler, Ch. J.) People v Sileo................ App Div, 2d dept, Kings County, 2/10/86 denied 4/18/86 (Meyer, J.)

MEMORANDA 951 People v Simmons............ App People v Simon............... App People v Sims................ App People v Singletary........... App People v Smith (Christian)..... App People v Smith (Christopher) .. App People v Smith (John)......... App People v Smith (Raymond)..... App People v Snow................ App People v Sodenstrom.......... App People v Soderstrom.......... App People v Sorenson............ App People v Speller.............. App People v Springer (John)...... App People v Springer (Richard)____ App People v Station.............. App People v Steiner.............. App People v Stephens............ App People v Stokes............... App People v Sullivan............. App People v Tabarez............. App People v Tapia................ App People v Tavare.............. App People v Taylor............... App People v Terry................ App People v Tesfay............... App People v Thompson (Steven) ... App Div, 1st dept, Bronx County, 3/25/86 denied 4/17/86 (Hancock, Jr., J.) Div, 2d dept, Kings County, 3/31/86 denied 4/22/86 (Hancock, Jr., J.) Div, 2d dept, Queens County, 3/17/86 denied 4/28/86 (Hancock, Jr., J.) Div, 2d dept, Kings County, 1/13/86 denied 4/8/86 (Kaye, J.) Div, 3d dept, Albany County, 2/20/86 denied 4/2/86 (Alexander, J.) Div, 3d dept, Albany County, 2/20/86 denied 4/2/86 (Alexander, J.) Term, Kings County, 2/6/86 denied 4/4/86 (Alexander, J.) Div, 1st dept, Bronx County, 3/4/86 denied 4/15/86 (Hancock, Jr., J.) Div, 4th dept, Erie County, 2/21/86 denied 4/22/86 (Titane, J.) Term, Nassau County, 2/20/86 denied 4/15/86 (Hancock, Jr., J.) Term, Nassau County, 2/20/86 denied 4/15/86 (Hancock, Jr., J.) Div, 2d dept, Kings County, 3/3/86 denied 4/9/86 (Wachtler, Ch. J.) Div, 1st dept, Bronx County, 11/19/85 denied 4/2/86 (Kaye, J.) Div, 3d dept, Broome County, 2/27/86 denied 4/24/86 (Kaye, J.) Div, 3d dept, Chemung County, 1/7/86 denied 4/7/86 (Alexander, J.) Div, 2d dept, Queens County, 2/24/86 denied 4/2/86 (Alexander, J.) Div, 2d dept, Suffolk County, 2/10/86 denied 4/1/86 (Meyer, J.) Div, 1st dept, Bronx County, 1/21/86 denied 4/10/86 (Alexander, J.) Div, 1st dept, NY County, 3/6/86 denied 4/21/86 (Hancock, Jr., J.) Div, 1st dept, Bronx County, 2/20/86 denied 4/2/86 (Alexander, J.) Div, 2d dept, Westchester County, 12/30/85 granted 4/4/86 (Simons, J.) Div, 2d dept, Queens County, 11/18/85 denied 4/3/86 (Alexander, J.) Div, 2d dept, Queens County, 2/24/86 denied 4/15/86 (Wachtler, Ch. J.) Div, 4th dept, Erie County, 1/24/86 denied 4/18/86 (Kaye, J.) Div, 2d dept, Kings County, 2/18/86 denied 4/16/86 (Titane, J.) Div, 4th dept, Erie County, 2/21/86 denied 4/24/86 (Kaye, J.) Div, 2d dept, Queens County, 2/3/86 denied 4/7/86 (Kaye, J.)

952 67 NEW YORK REPORTS, 2d SERIES People v Thompson (Terry)---- App Div, 2d dept, Queens County, 11/25/85 denied 4/3/86 (Alexander, J.) People v Trinidad............. App Div, 1st dept, Bronx County, 3/4/86 denied 4/22/86 (Titane, J.) People v Turner.............. App Div, 2d dept, Kings County, 3/17/86 denied 4/22/86 (Wachtler, Ch. J.) People v Ungaro.............. App Div, 4th dept, Niagara County, 12/20/85 denied 4/3/86 (Simons, J.) People v Urbino.............. App Div, 1st dept, Bronx County, 3/11/86 denied 4/15/86 (Simons, J.) People v Vargas.............. App Div, 1st dept, Bronx County, 1/21/86 denied 4/1/86 (Meyer, J.) People v Vasquez............. App Div, 1st dept, NY County, 3/11/86 denied 4/2/86 (Simons, J.) People v Vastano............. App Div, 2d dept, Suffolk County, 2/3/86 denied 4/15/86 (Simons, J.) People v Velasquez........... App Div, 1st dept, NY County, 2/4/86 granted 4/23/86 (Kaye, J.) People v Velez................ App Div, 2d dept, Kings County, 3/10/86 denied 4/15/86 (Wachtler, Ch. J.) People v Villanueva........... App Div, 1st dept, Bronx County, 2/13/86 denied 4/7/86 (Kaye, J.) People v Walker (Charles)..... App Div, 1st dept, Bronx County, 1/30/86 denied 4/10/86 (Simons, J.) People v Walker (Richard)..... App Div, 3d dept, Ulster County, 2/7/86 denied 4/23/86 (Hancock, Jr., J.) People v Walter.............. App Div, 4th dept, Onondaga County, 2/21/86 denied 4/7/86 (Simons, J.) People v Watson (Rex)........ App Div, 2d dept, Kings County, 3/3/86 denied 4/11/86 (Alexander, J.) People v Watson (Rex) ........ App Div, 2d dept, Kings County, 3/3/86 denied 4/24/86 (Alexander, J.) (upon reconsideration) People v Webster............. App Div, 1st dept, Bronx County, 1/14/86 denied 4/4/86 (Alexander, J.) People v Welch (James)....... App Div, 1st dept, NY County, 3/25/86 denied 4/17/86 (Hancock, Jr., J.) People v Welch (Keith)........ App Term, Suffolk County, 3/7/86 denied 4/8/86 (Meyer, J.) People v White (Kevin)........ App Div, 1st dept, NY County, 12/10/85 denied 4/2/86 (Kaye, J.) People v White (Martin)....... App Div, 1st dept, NY County, 2/6/86 denied 4/4/86 (Titane, J.) People v Whitted (Willie)...... App Div, 2d dept, Orange County, 12/30/85 denied 4/1/86 (Meyer, J.) People v Whitted (Willie)...... App Div, 2d dept, Orange County, 12/30/85 denied 4/8/86 (Meyer, J.) (upon reconsideration) People v Williams (Delroy)____ App Div, 2d dept, Queens County, 10/7/85 denied 4/8/86 (Alexander, J.) (upon reconsideration) People v Williams (Frederick).. App Div, 1st dept, NY County, 2/25/86 denied 4/3/86 (Meyer, J.) People v Williams (Howard) ... App Div, 2d dept, Kings County, 3/10/86 denied 4/17/86 (Hancock, Jr., J.)

People v Williams (John)...... App Div, 1st dept, Bronx County, 10/31/85 denied 4/1/86 (Meyer, J.) People v Williams (Leroy)..... App Div, 1st dept, NY County, 3/4/86 denied 4/25/86 (Kaye, J.) People v Williams (Michael) ... App Div, 2d dept, Queens County, 3/3/86 denied 4/25/86 (Kaye, J.) People v Williams (Ronnie)____ App Div, 2d dept, Kings County, 3/3/86 denied 4/15/86 (Simons, J.) People v Williams (Rudi)...... App Div, 1st dept, NY County, 3/4/86 denied 4/15/86 (Hancock, Jr., J.) People v Williams (Rudy)...... App Div, 2d dept, Westchester County, 3/3/86 denied 4/16/86 (Titane, J.) People v Wills................ App Div, 1st dept, Bronx County, 2/4/86 denied 4/11/86 (Alexander, J.) People v Wilson.............. App Div, 1st dept, Bronx County, 2/20/86 denied 4/16/86 (Titane, J.) People v Winder.............. App Div, 1st dept, NY County, 3/4/86 denied 4/22/86 (Wachtler, Ch. J.) People v Wright (Lenny)...... App Div, 1st dept, NY County, 2/4/86 denied 4/18/86 (Meyer, J.) People v Wright (Leon)........ App Div, 1st dept, NY County, 2/4/86 denied 4/18/86 (Meyer, J.) People v Young............... App Div, 2d dept, Kings County, 1/21/86 denied 4/1/86 (Meyer, J.) People v Younger............. App Div, 1st dept, NY County, 3/18/86 denied 4/21/86 (Meyer, J.) APPLICATIONS IN CRIMINAL CASES FOR LEAVE TO APPEAL Decisions of Appellate Division Justices* (April 1,1986 through April 30,1986) People v Goetz................ App Div, 1st dept, NY County, 4/17/86 granted 4/18/86 (Asch, J.) People v Gonzalez (Antonio) ... App Div, 1st dept, Bronx County, 3/4/86 granted 4/10/86 (Sullivan, J.) People v Rothman............ App Div, 1st dept, NY County, 2/20/86 granted 4/3/86 (Sullivan, J.) People v Tekulve............. App Div, 1st dept, NY County, 2/20/86 granted 4/3/86 (Sullivan, J.)


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Dennis Acton et al., Appellants, v Donald Wallace et al., Constituting the Board of Building and Zoning Appeals of the City of Albany, et al., Respondents.
    Argued March 25, 1986;
    decided May 1, 1986

      APPEARANCES OF COUNSEL

      George F. Carpinello for appellants.

      Vincent J. McArdle, Jr., Corporation Counsel (Gary F. Stiglmeier of counsel), for Donald Wallace and others, respondents.

      James T. Potter and William F. Conway for Daniel A. Lanzetta, III, and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (112 AD2d 581).

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


text:
    Jerome Koenig, Appellant, v Jewish Child Care Association of New York, Respondent.
    Argued March 19, 1986;
    decided May 1, 1986

      APPEARANCES OF COUNSEL

      Gary M. Rosenberg and Susan R. Lipp for appellant.

      George P. Leshanski and William L. Messing for respondent.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed, with costs.

On the particular facts and circumstances presented we agree with the Appellate Division that respondent association occupies the subject apartment as a residential tenant as the lease, itself, provides; that an entity can be a residential tenant under the Rent Stabilization Law; that the apartment is, therefore, subject to the Rent Stabilization Law; and that because petitioner does not meet the requirements of the Code of the Rent Stabilization Association of New York City, Inc. § 54 (A) he is not entitled to a judgment evicting respondent. The issue discussed in the dissent — whether respondent occupies the apartment as a primary tenant — is not before us in this holdover eviction proceeding. The dissent refers to cases where the Conciliation and Appeals Board had made primary residency determinations (see, Rent Stabilization Code § 54 [E] [1], [2], [3]). No such determination has been made here.

Titone, J. (dissenting). Although a group home undoubtedly performs a vital and beneficial service to the public, I cannot accept the notion that it comes within the ambit of the rent stabilization laws, and, therefore, dissent.

The Jewish Child Care Association of New York City (JCCA), a not-for-profit corporation, has operated a group home for adolescent girls in an eight-room apartment located on West End Avenue in Manhattan since 1955. The apartment was decontrolled in 1968, and its last lease, which expired June 30, 1977, permitted occupancy by up to 10 persons, including at least one adult, at a monthly rental of $490.26.

A cooperative plan became effective in 1977, but JCCA did not bring suit to challenge it, and the shares allocated to the apartment were conveyed to petitioner Jerome Koenig who commenced this holdover proceeding to evict JCCA. Subsequent declaratory judgment actions brought by JCCA, to compel the sponsor to convey title to it, are not at issue here as the sponsor is not a party to this proceeding.

The Appellate Division, which reinstated a Civil Court judgment in JCCA’s favor following an Appellate Term reversal, concluded that JCCA’s group home was entitled to all the rights of a family under the rent stabilization laws, and that because petitioner could not meet the requirements of the Code of the Rent Stabilization Association of New York City, Inc. § 54 (A), i.e., a person "who does not reside in the building [and who] seeks in good faith to recover possession”, the petition had to be dismissed. I disagree.

In order to claim the protections of the rent stabilization laws, JCCA must establish that the apartment is maintained as its primary residence (see, Matter of Cale Dev. Co. v Conciliation & Appeals Bd., 61 NY2d 976, affg 94 AD2d 229). This it cannot do. A review of the relevant decisions indicates that, in order to qualify under the primary residence test, there must be an identifiable individual who has the right to demand a renewal lease (see, Matter of Cale Dev. Co. v Conciliation & Appeals Bd., supra; Matter of Sommer v New York City Conciliation & Appeals Bd., 61 NY2d 973, affg 93 AD2d 481; Matter of Walter & Samuels v New York City Conciliation & Appeals Bd., 81 AD2d 212, appeal dismissed 55 NY2d 824). Such a limitation is necessary to prevent the apartment from being subject to rent stabilization laws in perpetuity. As was noted in Matter of Cale Dev. Co. (supra, pp 234-235), "[w]hile * * * a corporate tenant is entitled to a renewal lease provided it can meet the primary residence test, rent stabilization was never intended to place such a tenant’s leasehold estate in perpetual trust for the benefit of whomever, at a particular point in time, might happen to occupy a corporate office.”

The apartment is one of many operated by JCCA throughout the New York metropolitan area, and while JCCA may be the named tenant, the occupants are all children, whose occupancy is temporary, and who are supervised by a rotating staff of social workers. In short, no one lives in the apartment on a permanent basis and there is no individual who can claim primary tenancy.

Accordingly, I would reverse the order of the Appellate Division and reinstate the order of the Appellate Term.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Hancock, Jr., concur; Judge Titone dissents and votes to reverse in an opinion; Judge Alexander taking no part.

Order affirmed, with costs, in a memorandum.

       It is true that in Matter of Cale Dev. Co. v Conciliation & Appeals Bd. (61 NY2d 976, affg 94 AD2d 229) and Matter of Walter & Samuels v New York City Conciliation & Appeals Bd. (81 AD2d 212, appeal dismissed 55 NY2d 824) the Conciliation and Appeals Board had made administrative primary residence determinations. But the legal principles discussed in those cases are just as germane to the issues raised in this summary proceeding because JCCA’s last lease expired in June 1977, and no renewal lease has been tendered. Moreover, when, as here, the facts are undisputed, this already prolonged litigation should not now be shifted to the administrative forum.


text:
    In the Matter of Samuel Weinberg.
    Decided May 1, 1986
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Samuel Weinberg is suspended, with pay, effective immediately, from his office of Judge of the Civil Court of the City of New York, pursuant to NY Constitution, article VI, § 22 (f), (g) and Judiciary Law § 44 (8) (b), (c).


text:
    In the Matter of Daniel P. Foster et al., Appellants.
    Submitted April 21, 1986;
    decided May 1, 1986
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the order of a Justice of the Appellate Division denying interim relief (see, CPLR 5602 [a] [1] [i]).


text:
    Sophie Fryczynski, Respondent, v Niagara Frontier Transportation Authority, Appellant.
    Submitted March 17, 1986;
    decided May 1, 1986
   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, and CPLR 5602 (a) (2) applies to a nonfinal order in a proceeding, not in an action.


text:
    The People of the State of New York, Respondent, v Matthew G. Wheeler, Appellant.
    Decided May 6, 1986

      APPEARANCES OF COUNSEL

      Thomas J. Fox, Public Defender, for appellant.

      Patrick H. Matthews, District Attorney (Marjorie M. Lyons of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65) is not a lesser included offense of attempted rape in the first degree (Penal Law §§ 110.00, 130.35) because it is not impossible to commit the latter crime without concomitantly, by the same conduct, committing the former crime (see, CPL 1.20 [37]; People v Glover, 57 NY2d 61, 63). Under the subdivision charged in the indictment herein (see, People v Green, 56 NY2d 427, 431), rape in the first degree occurs when the actor "engages in sexual intercourse with a female * * * by forcible compulsion” (Penal Law § 130.35 [1]). Sexual intercourse "has its ordinary meaning and occurs upon any penetration, however slight” (Penal Law § 130.00 [1]). In contrast, sexual abuse in the first degree requires only that the actor subject "another person to sexual contact * * * by forcible compulsion” (Penal Law § 130.65 [1]). Significantly, sexual contact is defined as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3] [emphasis supplied]).

Although it would be impossible to commit the crime of rape without "touching of the sexual or other intimate parts” of the victim, it is, of course, possible to commit rape without the actor having as his purpose the gratification of either party’s sexual desire. As the majority at the Appellate Division noted, nonsexual motives for rape have been recognized, such as a desire to humiliate, injure or dominate the victim. Thus, it is possible to commit the crime of rape in the first degree without having the specific intent necessary to establish the crime of sexual abuse in the first degree (cf. People v Todd, 59 NY2d 694; People v Teicher, 52 NY2d 638; People v Moyer, 27 NY2d 252).

Because the impossibility portion of the definition of lesser included offense cannot be met, the trial court properly refused defendant’s request to submit to the jury the charge of attempted sexual abuse in the first degree as a lesser included offense of attempted rape in the first degree (see, CPL 300.50 [1]). There is, therefore, no need to consider whether a reasonable view of the evidence would support a finding that the defendant attempted to commit sexual abuse in the first degree but not rape in the first degree (see, CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63, supra).

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

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


text:
    Benderson Development Company, Inc., Respondent, v Hallaway Properties, Inc., et al., Appellants.
    Decided May 6, 1986

      APPEARANCES OF COUNSEL

      Arthur F. Dobson, Jr., for appellants.

      John C. Herbert for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (115 AD2d 339).

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


author: Hancock, Jr., J.

text:
    In the Matter of Charles Briggins, Appellant, v Robert McGuire, as Police Commissioner of the Police Department of the City of New York, et al., Respondents.
    Argued February 5, 1986;
    decided May 6, 1986

      APPEARANCES OF COUNSEL

      Raymond E. Kerno and Richard Hartman for appellant.

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

Memorandum.

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

Constitutionally protected property rights in a public office "are created and their dimensions are defined” by, among other things, State law (Board of Regents v Roth, 408 US 564, 577; Greene v McGuire, 683 F2d 32, 34). While this State’s Civil Service Law certainly creates a protected property interest in a police officer’s position, Public Officers Law § 30 (1) (e) mandates that a public office automatically becomes vacant upon an officer’s "conviction of a felony”. This provision was enacted substantially in its present form nearly 100 years ago (L 1892, ch 681), and we held early on that its "application * * * is not defeated by the possibility that the judgment [of conviction] may be reversed” (Matter of Obergfell, 239 NY 48, 50).

Upon a more recent examination of the statute in light of a dismissed correction officer’s application for back pay following an appellate reversal of his felony conviction, we noted that "[t]he directive contained in section 30 of the Public Officers Law is clear and unqualified: every public office becomes vacant upon the officer’s conviction of a felony. A conviction of the incumbent constitutes an abridgement of the office, automatically terminating its duration. (Matter of Obergfell, 239 NY 48, 50 [supra]; Matter of Breslin v Leary, 35 AD2d 794, 795; see, generally, 3 McQuillin, Municipal Corporations, pp 432-433.)” (Matter of Toro v Malcolm, 44 NY2d 146, 149-150 [emphasis in original].) We attributed the statute’s absolute effect to "a legislative decision borne of the recognition that a public officer’s conviction of a felony does not permit cessation of governmental functions for the period required to exhaust the appellate process. Continued performance of governmental functions necessitates the existence of a point in time at which the affected office may be filled without concern for the possibility that at some future date a former officer’s conviction may be reversed” (id., at p 150). In fashioning this broad rule, we expressed sympathy with the "plight of a truly innocent officer unjustly accused and convicted”, but nonetheless interpreted the statute in conformance with its plain meaning in the manner most suitable to effectuating the Legislature’s intent (id.).

Since the decision in Toro, the Legislature has not seen fit to alter the law in this area as formulated by the Courts or to carve out a statutory exception in cases where a public officer has been wrongfully convicted. We cannot agree with our dissenting colleagues that this is a different case in any meaningful sense. Petitioner was "convicted of a felony.” At that point his position was terminated and under State law he no longer had a protectable property interest in the office that would mandate a reinstatement hearing (Greene v McGuire, 683 F2d 32, supra).

Hancock, Jr., J.

(dissenting). In our view, New York law and the Federal Constitution require that the Appellate Division order be reversed. We agree with Special Term that petitioner Briggins has a constitutional right to a departmental reinstatement hearing.

The question, we emphasize, is not whether Briggins’ position with the New York City Police Department became vacant under the Public Officers Law upon his conviction of what was then assumed to be a crime. The question is whether Briggins, a detective with civil service tenure (see, Economico v Village of Pelham, 50 NY2d 120, 125, 126), had a property interest in his position — as determined by New York law — which entitled him to a reinstatement hearing under the due process guarantee of the Federal Constitution when it was determined that he had been convicted of conduct which was not a crime (see, Bishop v Wood, 426 US 341; Perry v Sindermann, 408 US 593; Board of Regents v Roth, 408 US 564; Economico v Village of Pelham, supra, at pp 125, 127). We conclude that he had such an interest.

In 1975 a jury found Briggins guilty of two counts of criminal possession of a forged instrument in the second degree. He had obtained a temporary motor vehicle operator’s permit and a license application and signed them with a pseudonym — presumably adopted to conceal from his wife the earnings he derived from a part-time job. As a result of the conviction, Briggins’ position became automatically vacant by operation of Public Officers Law § 30 (1) (e). On May 6, 1980, this court unanimously held that the documents did not constitute forged instruments, that their possession was not a violation of the Penal Law, and that Briggins’ actions were not criminal. Applying "the fundamental principle that a person cannot be found criminally liable for conduct which does not constitute a crime” (People v Briggins, 50 NY2d 302, 309 [emphasis added]), we reversed the Appellate Division’s order affirming Briggins’ conviction and dismissed the indictment.

Following our decision, Briggins applied for reinstatement and, when the department refused, he commenced the instant CPLR article 78 proceeding. Special Term found that he was not entitled to automatic reinstatement but held that, as a matter of law, he was entitled to a departmental reinstatement hearing. The Appellate Division, citing Greene v McGuire (683 F2d 32 [2d Cir]), reversed and dismissed Briggins’ petition. It held that "all rights to the office disappeared” at the time of the conviction, and that denial "of a hearing in conjunction with petitioner’s application for reinstatement deprived him of neither liberty nor property, thus negating any claims with regard to constitutional due process.” (112 AD2d, at p 830.) The majority has adopted that decision.

Whether a particular public office creates a constitutionally protected property interest in the holder is, of course, a matter of State law (see, Board of Regents v Roth, supra, at p 577; Economico v Village of Pelham, supra, at p 125; Matter of Petix v Connelie, 47 NY2d 457, 459). Under New York law, Briggins, a permanent appointee in the classified civil service, unquestionably had a protected property interest in his position (see, Civil Service Law §§ 58, 75; Económico v Village of Pelham, supra, at p 125), albeit subject to Public Officers Law § 30 (1) (e) — i.e., to the office’s becoming vacant if the incumbent should be convicted of a felony (see, Económico v Village of Pelham, supra, at p 127).

Here, however, the Appellate Division has applied Public Officers Law § 30 (1) (e) with absolute effect even though the incumbent was not convicted of a felony. It has concluded that Briggins’ property interest was totally extinguished as a result of his conviction for conduct which, we have specifically held, was not a crime at all (People v Briggins, supra, at p 309), and that even his right to a reinstatement hearing has been lost. This construction is not permitted either by the plain wording of the statute or the dictates of common sense and fairness. Nor is such a harsh application of the statute necessary to further its purpose.

The Public Officers Law states in pertinent part:

"§ 30. Creation of vacancies

"1. Every office shall be vacant upon the happening of one of the following events before the expiration of the term thereof:

"e. His [the incumbent’s] conviction of a felony, or a crime involving a violation of his oath of office [emphasis added].”

The language of the statute is unequivocal. "[U]pan an officeholder’s conviction of a felony, that office becomes vacant by operation of law” (Matter of Gunning v Codd, 49 NY2d 495, 500 [emphasis added]). Its purpose is equally free from doubt— not to punish the officeholder but to assure the public that its "officers are individuals of moral integrity in whom [it] may, without second thought, place [its] confidence and trust” (Matter of Toro v Malcolm, 44 NY2d 146, 152). In giving effect to this plain meaning and undeniably important public purpose we have not hesitated to apply the statute literally.

Thus, we have held that the automatic vacatur of the position of an incumbent convicted of a felony will not be affected by a reversal on appeal because "one convicted of a felony shall not retain a post of honor” (Matter of Obergfell, 239 NY 48, 50 [emphasis added]). We have adhered to this literal application acknowledging that there could be cases where "an innocent officer is unjustly convicted” (Matter of Toro v Malcolm, supra, at p 150). The justification for our refusal to make exceptions to the categorical rule of automatic vacatur on felony conviction lies not only in the statute’s clear language and public import, but also in two practical considerations — the advisability of avoiding a precedent which could "provide unjustified relief to others not equally deserving” (Matter of Toro v Malcolm, supra, at p 151), and "the recognition that a public officer’s conviction of a felony does not permit the cessation of governmental functions for the period required to exhaust the appellate process” (id., at p 150).

This strict enforcement of the statute — i.e., that "[e]very office shall be vacant upon the happening [of the incumbent’s] conviction of a felony” (Public Officers Law § 30 [1] [e] [emphasis added]) — presupposes, of course, the happening of the crucial event — the conviction of a felony. Here, that has not happened. To apply the statute to Briggins’ position one must conclude that the Legislature intended the words "conviction of a felony” to include convictions for conduct which was not felonious or even criminal. Such an interpretation is contrary to the accepted rule that the intent of a statute should be determined from the language used and should be given its natural and obvious meaning (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 94).

Nor can the policy considerations compelling automatic vacatur apply where an incumbent has been convicted for noncriminal conduct. The Legislature could, with good reason, "strike the balance” in favor of the public’s interest in having officers of unquestioned "moral integrity”, and against the interest of an incumbent who has been found by a trier of the fact to have committed acts constituting a felony (see, Matter of Toro v Malcolm supra, at pp 151-152) — even when the conviction is later reversed. For it is reasonable to suppose that an incumbent, whom a jury has branded as a felon, is probably unfit for office. There is no basis for this assumption when the incumbent has been found guilty of conduct that is not a crime.

Clearly, the position we urge does not conflict with Matter of Toro v Malcolm (supra). There, the petitioner had been voluntarily reinstated and the sole issue before us was his entitlement to back pay. Here, the issue is not back pay or the vacatur of a public office, but a reinstatement hearing — i.e., whether the New York Legislature could have intended that Public Officers Law § 30 (1) (e) should be applied to deny Briggins a property interest sufficient to warrant due process protection (see, Bishop v Wood, 426 US 341, supra; Perry v Sindermann, 408 US 593, supra; Board of Regents v Roth, 408 US 541, supra; Economico v Village of Pelham, 50 NY2d 120, 125, 127, supra; see also, Greene v McGuire, 683 F2d 32, 35 [2d Cir], supra). And of course, Toro, unlike Briggins, was found guilty of authentically felonious conduct — burglary, petit larceny and impersonating a police officer — and his convictions were reversed for reasons not necessarily indicative of innocence (Matter of Toro v Malcolm, supra, at p 149). For the same reason, Greene v McGuire (supra), involving convictions on various felony charges of bribery and conspiracy, is distinguishable.

In granting Briggins a reinstatement hearing we would not be holding that a hearing is required whenever an incumbent officeholder’s felony conviction has been reversed on appeal as in Matter of Toro v Malcolm (supra) and Greene v McGuire (supra). For, as explained, where the incumbent has been convicted of an actual felony, the Legislature could, for reasons of policy, have decided that there should be no remaining property interest in the position (see, Economico v Village of Pelham, supra, at p 127). Absent a felony conviction, however, nothing in common experience or in the statutory purpose, and certainly nothing in the language of the statute itself, would justify that result.

The constitutional due process question presented depends upon this court’s delimitation of Briggins’ property interest in his position under New York law — whether he had "a legitimate claim of entitlement to it” (Board of Regents v Roth, 408 US 564, 577) which he "may invoke at a hearing” (Perry v Sindermann, 408 US 593, 601). The essence of constitutional due process, we have held, "is fundamental fairness” (Economico v Village of Pelham, supra, at p 125), and it may not be assumed that the Legislature ignored this basic concept in defining the property interest in circumstances such as Brig-gins (see, United States v Jin Fuey Moy, 241 US 394, 401; Dollar Co. v Canadian Car & Foundry Co., 220 NY 270, 275-278; see generally, McKinney’s Statutes §§ 143, 146, 150, to the effect that a statutory construction which is unreasonable, or works a hardship, or is unconstitutional should be avoided). It is fundamentally unfair that a tenured civil service officeholder should be totally divested of all rights in his position for conduct which was not criminal. To assume that the Legislature intended that Public Officers Law § 30 (1) (e) should be given such uncalled-for effect would conflict with basic rules of statutory construction (see, McKinney’s Statutes §§ 143, 146, 150) and with the plain language of the statute. If the Legislature did not so intend, then Briggins’ residual interest in his position was sufficient to trigger the due process requirement of an opportunity to prove "the legitimacy of his claim” (Perry v Sindermann, supra, at p 603).

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

Order affirmed, with costs, in a memorandum.

       Contrary to the majority’s characterization of the holding in Matter of Toro v Malcolm. (44 NY2d 146), this court did not there establish an inflexible rule precluding any relief, regardless of the circumstances, for a public official whose conviction is reversed. Rather, this court simply refused "to establish * * * a general rule which would provide unjustified, relief’ to undeserving officers (Matter of Toro v Malcolm, supra, at p 151 [emphasis added]). Denying the specific relief requested under the facts of that case, the majority of the court in Toro explained that "a general rule * * * that public officers whose convictions have been reversed be automatically reinstated to their former office and awarded back pay, would apply to all public officers whose convictions were reversed regardless of the basis for the reversal” (id. [emphasis added]).
      The position we urge is entirely consistent with that holding. We are, of course, not positing a "general rule”, "regardless of the basis for the reversal”, or that defendant is entitled to be "automatically reinstated” and "awarded back pay”. We simply cannot agree that Public Officers Law § 30 (1) (e) was ever intended to have the arbitrary effect which the majority holds is mandated in this case by Matter of Toro v Malcolm.


text:
    The People of the State of New York, Respondent, v David Alwadish, Appellant.
    Decided May 6, 1986
    APPEARANCES OF COUNSEL

      Ivan S. Fisher for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Through the introduction of the defendant’s statements to the undercover officer, the People presented a prima facie case that defendant arranged a meeting between the officer and a dealer in illegal licenses, that there was an illicit agreement constituting a felony, that defendant was very familiar with the workings of it and that the defendant intended to be paid for his referral. Once the prima facie case was established, the People could introduce the statements of the dealer to bolster other proof of the defendant’s membership in the conspiracy (People v Ardito, 86 AD2d 144, affd 58 NY2d 842; People v Sanders, 56 NY2d 51, 62; People v Berkowitz, 50 NY2d 333, 341; People v Salko, 47 NY2d 230, 240, remittitur amended 47 NY2d 1010; Barker, Evidence, 34 Syracuse L Rev 261, 289). Taken in the light most favorable to the People, this evidence was sufficient to submit the charge of conspiracy in the fifth degree to the jury (Penal Law § 105.05; People v Berkowitz, supra; People v Salko, supra; People v Rastelli, 37 NY2d 240, cert denied 423 US 995; cf. People v Ardito, supra; People v Malagon, 50 NY2d 954).

Furthermore, there is no substance to the defendant’s claim that the Trial Judge abused his discretion in electing not to charge entrapment. The defendant was neither actively induced to engage in criminal activity (see, e.g., People v Thompson, 47 NY2d 940; People v Mapp, 47 NY2d 939; People v Seale, 47 NY2d 923), nor was any evidence presented suggesting that the defendant had no predisposition to commit this crime (e.g., People v McGee, 49 NY2d 48, cert denied sub nom. Quamina v New York, 446 US 942; 1 CJI [NY] 40.05, at 924).

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

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


text:
    In the Matter of Andrew Martin, Respondent, v Gordon M. Ambach, as Commissioner of Education of the State of New York, Appellant, and Community School Board No. 8 of the City of New York, Respondent.
    Argued March 18, 1986;
    decided May 6, 1986

      APPEARANCES OF COUNSEL

      Kenneth Pawson, James H. Whitney and Robert D. Stone for appellant.

      Kevin H. Harren, Rocco A. Solimando and Bernard F. Ashe for Andrew Martin, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis of counsel), for Community School Board No. 8 of the City of New York, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, by vacating its reinstatement of the hearing panel’s original findings and recommendations as to charge number three and remitting the matter to the Commissioner for further proceedings in accordance with this memorandum and, as so modified, affirmed, with costs to petitioner Martin against the Commissioner.

Preponderance of the evidence, and not substantial evidence, is the proper standard of proof to be applied by a hearing panel in determining whether disciplinary charges brought pursuant to Education Law § 3020-a have been established. Indeed, as noted by the Appellate Division, this is the accepted standard of proof at the hearing level in such proceedings (see, e.g., Matter of Strongin v Nyquist, 44 NY2d 943, 945, appeal dismissed 440 US 901). Because the Commissioner has never reviewed the panel’s original findings and recommendations of July 16, 1979, that charge number three was not established by a preponderance of the evidence, the matter should be remitted for the Commissioner’s exercise of his powers of review under Education Law §§ 310 and 3020-a (5). We have considered the Commissioner’s remaining contention and find it to be without merit.

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

Order modified and matter remitted to Supreme Court, Albany County, with directions to remand to the Commissioner for further proceedings in accordance with the memorandum herein and, as so modified, affirmed, with costs to petitioner against the Commissioner.


text:
    In the Matter of Joseph V. Alessio, Appellant, v New York City Employees’ Retirement System, Respondent.
    Decided May 6, 1986

      APPEARANCES OF COUNSEL

      Arthur I. Strier and Simon Wynn for appellant.

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

Memorandum.

The order should be affirmed, with costs.

We agree with the Appellate Division that there is no basis for upsetting the determination denying petitioner’s application for accident disability retirement. The restrictive language of Administrative Code of the City of New York § B340.0 permits retirement on accident disability only where the "time, place and conditions” of whatever "resulted] in such disability” can be certified as "city-service”. Here it is not disputed that petitioner’s injury occurred while on the way to work rather than while actually engaged therein.

Petitioner’s reliance on case law construing Workers’ Compensation Law § 10 is misplaced. The language of that statute provides for benefits whenever the injury is one "arising out of and in the course of the employment”. By contrast, the language of section B3-40.0 of the Code limits accident disability benefits to those situations where actual "city service performed” results in the employee’s disability.

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

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


text:
    John K. Dugan, Appellant, v County of Rensselaer, Respondent.
    Decided May 6, 1986

      APPEARANCES OF COUNSEL

      Seymour Fox and Neil F. Woodworth for appellant.

      James A. Lombardo for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and defendant’s motion for summary judgment denied because the record presents issues of fact requiring a trial (CPLR 3212 [b]).

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


text:
    Powers Mercantile Corp., Appellant, v Maurice Feinberg et al., Respondents.
    Decided May 6, 1986

      APPEARANCES OF COUNSEL

      Fred Kaplan and Vito Vincenti for appellant.

      Daniel A. Pollack and Andrew Schepard for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (109 AD2d 117).

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


text:
    Paul Bouchard et al., Respondents, v Mary Abbott, Appellant.
    Decided May 6, 1986
   Appeal pursuant to CPLR 5601 (d) dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Jay Kanter, Respondent, v East 62nd Street Associates et al., Appellants.
    Submitted April 7, 1986;
    decided May 6, 1986
   Motion for leave to appeal granted. Motion for a stay of so much of the order appealed from as requires defendants to provide plaintiff with a renewal lease granted, on condition that defendants agree that whatever rights plaintiff had as of August 12, 1985 to purchase the apartment pursuant to a condominium conversion plan be extended until 30 days following the determination of this appeal.


text:
    Latham Sparrowbush Associates, Respondent, v Cohoes Industrial Terminal, Inc., Appellant.
    Submitted April 21, 1986;
    decided May 6, 1986
   Motion for written opinion setting forth reasons for denial of reargument denied. [See, 67 NY2d 918.]


text:
    Leonard Smith, Inc., et al., Appellants, v Merrill Lynch, Pierce, Fenner and Smith, Defendant, and Marine Midland Bank, N. A., et al., Respondents.
    Decided May 6, 1986
   Appeal by plaintiffs dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the order of reversal or the order of modification, absent dissent by at least two Justices or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    In the Matter of Lillian A. Stacy, Respondent, v James O. Stacy, Appellant.
    Submitted April 7, 1986;
    decided May 6, 1986
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Family Court’s order of contempt, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Calvin Thompson et al., Respondents, v City of Poughkeepsie School District, Appellant.
    Decided May 6, 1986

      APPEARANCES OF COUNSEL

      David S. Shaw for appellant.

      Thomas Mahar for respondents.
   OPINION OF THE COURT

Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right pursuant to CPLR 5601 (d) (see, CPLR 5601 [a], as amended by L 1985, ch 300).


text:
    The People of the State of New York, Respondent, v Edmond Mosley, Appellant.
    Argued March 21, 1986;
    decided May 8, 1986

      APPEARANCES OF COUNSEL

      Meira Rosenberg and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Tracey J. Miller and Mark L. Freyberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Although the memorandum of the Appellate Division majority incorrectly states that the jury was "instructed that, if the evidence were evenly balanced, the prosecution had not sustained its burden of proving each element of the crime beyond a reasonable doubt” (112 AD2d, at p 814), the claim that reversal is required because of the absence from the charge of an instruction that every element must be proved beyond a reasonable doubt was not preserved for our review, the objection having been limited to the confusing nature of the instruction by reason of its use of the words "evenly balanced” (see, People v Robinson, 36 NY2d 224). Although the latter phrase will in many cases be sufficiently confusing to require reversal, we agree with the Appellate Division majority that, under the circumstances of this case in which the only matter put in issue by defendant was identification, and in which the Trial Judge made clear that "the degree of proof necessary in a criminal case is far greater than the degree of proof necessary in a civil case” and that reasonable doubt "simply means a doubt for which you can point to the evidence, or lack of evidence, as to why you have that doubt”, the likelihood of confusion was not sufficient to require reversal.

The remaining claims of error either were not preserved or are without merit.

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

Order affirmed in a memorandum.


text:
    Michael Freedus, Respondent, v Blanchfield & Howard, Inc., Appellant.
    Decided May 8, 1986

      APPEARANCES OF COUNSEL

      Donald D. De Angelis for appellant.

      Linda T. Taverni for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and summary judgment granted to defendant for the reasons stated in the dissenting memorandum by Justice Howard A. Levine at the Appellate Division (115 AD2d 819). We add that here, unlike the situation in Merrill Lynch Realty/Carll Burr, Inc. v Skinner (63 NY2d 590, 596), the letter accompanying defendant’s check in response to plaintiffs attorney’s letter offering to "waive the default” made clear by its insistence that the check be held in escrow pending a receipt of a stipulation of discontinuance that "the check was offered in settlement of any outstanding dispute arising out of the [lease]”. By thereafter cashing the check and filing the stipulation, plaintiff entered into an accord and satisfaction. The certified question is answered in the affirmative.

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


author: Titone, J.

text:
    Goodstein Construction Corp., Dic-Underhill Industries and Milstein Properties, a Joint Venture, Respondent, v City of New York, Appellant.
    Argued March 19, 1986;
    decided May 8, 1986

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (June A. Witterschein, Leonard Koerner, Steven Anderson and Jeffrey Schanback of counsel), for appellant.

      Charles G. Moerdler, Mark E. Klein, Elizabeth A. Mullins and Elizabeth A. Sherwin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs (see, 111 AD2d 49). The certified question is answered in the affirmative.

Defendant appeals from an order denying its motion to dismiss plaintiffs first and second causes of action sounding in contract. The motion is based solely on CPLR 3211 (a) (7), failure to state a cause of action.

Plaintiffs complaint alleges that defendant, acting through its Department of Housing Preservation and Development (HPD), after considering its response to the city’s request for proposals, entered into designation agreements selecting plaintiff exclusively to negotiate the terms and conditions of a land disposition agreement (LDA) for the sale and development of the city’s Washington Street Urban Renewal Areas and that by the terms of that agreement the defendant undertook to cooperate with plaintiff in developing the LDA for eventual submission and approval of the agreement and approval of the sale of the land to plaintiff by the Board of Estimate. Plaintiff further alleges that it performed all the terms and conditions imposed upon it by the designation agreements but that defendant failed to perform its part of the contract when, without good cause and acting in bad faith, it "dedesignated” plaintiff. Plaintiff alleges that it expended substantial sums of money in negotiating with HPD, and in preparing the LDA and it seeks damages for the sums so expended and for damages resulting from the loss of the sites.

We agree with the Appellate Division majority that the causes of action are sufficiently pleaded. The claims rest upon alleged breach of the obligation undertaken by defendant to cooperate with plaintiff so that it could prepare the necessary LDA not only for HPD and Uniform Land Use Review Procedure approval but also for subsequent submission to the Board of Estimate. That being so, it is immaterial that the city might, for legitimate reasons, have refused to continue negotiations, that only the Board of Estimate was authorized to finally approve the LDA or convey the sites, or that HPD could "dedesignate” plaintiff before the LDA was ever approved by it or the Board of Estimate. These considerations might well be pertinent to a motion addressing the merits but are not dispositive on a motion addressed to the face of the pleadings. The allegation is that defendant acted without cause and for improper motives in "dedesignating” plaintiff in violation of its good-faith contractual obligation to cooperate.

It is doubtful that plaintiff can establish a right to recover damages resulting from defendant’s failure to sell the sites or to approve an LDA since no agency with the authority to act on behalf of the city in doing so was bound by the designation agreement. What the city did undertake to do, however, acting through HPD, was to cooperate with plaintiff in the extensive and expensive preparations and negotiations leading to submission and approval of the LDA. It is no answer that the contract provided that defendant could terminate the contract for various reasons or that plaintiff undertook the planning at its "sole risk, cost and expense”. Plaintiff did not assume the risk of bad faith by defendant or of its unexcused breach of its contract obligation. Similarly immaterial on a motion addressed to the sufficiency of the pleading is defendant’s claim that plaintiff cannot recover all of the items of damage claimed.

Titone, J.

(dissenting). Plaintiff is a joint venture of construction and real estate interests. It seeks damages from defendant City of New York arising out of the alleged breach of "letters of agreement to negotiate” with the Department of Housing Preservation and Development (HPD), in which plaintiff was designated as the tentative developer of certain property in the Washington Street Urban Renewal Area (WSURA) and in which HPD agreed to exclusively negotiate with plaintiff for 90 days regarding the ultimate disposition of that property.

In its first and second causes of action, plaintiff contends that the city was contractually obligated by the letters of negotiation to bring, plaintiff to the Board of Estimate, for approval, as purchaser and developer of the urban renewal property, and to grant plaintiff tax abatements for the property. Plaintiff claims that it is entitled to damages amounting to $600,000,000 for the moneys it expended during negotiations, as well as the profits it lost and the tax abatements which will never be granted, when, as a result of a change in land use policy, HPD terminated negotiations and no agreement for the sale of the property to plaintiff was reached.

Under the letters the city specifically "retain[ed] the right to terminate negotiations at any time”. Further, plaintiff specifically recognized and acknowledged that it was undertaking steps at its "sole risk, cost and expense”, and that, ultimately, the land disposition agreements might never be approved by the Board of Estimate, as required by law (General Municipal Law § 507; New York City Charter § 67 [4]).

Special Term denied the city’s motion to dismiss the first two causes of action for legal insufficiency. The Appellate Division, First Department, affirmed, Presiding Justice Murphy dissenting, and granted leave to appeal. I would reverse.

It is evident that the letters of negotiation left open major elements of the potential real estate transaction that plaintiff now seeks to culminate through litigation and were simply the parties’ written memorialization of their intent to negotiate the terms for the purchase and development of the urban renewal property (see, Scheck v Francis, 26 NY2d 466, 470; Schwartz v Greenberg, 304 NY 250, 254). "Negotiations look to the future; they are the deliberations which take place between the parties touching a proposed agreement * * * A promise to negotiate at a future time is not a contract” (Royce Haulage Corp. v Bronx Term. Garage, 185 Misc 892, 894 [App Term]; see, Underhill Constr. Corp. v New York Tel. Co., 44 NY2d 666, affg 56 AD2d 760). Indeed, "it is rightfully well settled in the common law of contracts in this State that a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable” (Martin Delicatessen v Schumacher, 52 NY2d 105, 109; see also, Willmott v Giarraputo, 5 NY2d 250, 253).

The Appellate Division majority found that "the designation agreements did impose the implied obligations of good faith, cooperation and fair dealing implicit in any contract. Upon a breach of these obligations, the law does afford a remedy. These were not mere agreements to agree” (111 AD2d, at p 52), and the adoption of that finding by this court begs the question. As Judge Weinfeld put it, "A commitment to good faith negotiations does not carry with it a surrender of one’s right to decide not to enter into another contract with a party” (Candid Prods. v International Skating Union, 530 F Supp 1330, 1337; see also, Oil Trading Assoc. v Texas City Refining, 303 F2d 713, 715; Mocca Lounge v Misak, 94 AD2d 761, 763).

Clearly the courts would not be empowered to direct the city to continue negotiations with the plaintiff or direct the Board of Estimate to approve a final sale and development of the sites (cf. Candid Prods. v International Skating Union, supra, at p 1337). Nor could damages be assessed against the city for terminating a project which its agencies were indisputably entitled to terminate (see, Citizens Comm. v Lindsay, 507 F2d 1065, 1072). Plaintiff, as the designated developer, theoretically could have gone all the way to Board of Estimate approval, been disapproved, and had no breach of contract action against the city because nothing obligated the Board of Estimate to approve any arrangement for land disposition. Why is plaintiff better off now?

The record amply supports Presiding Justice Murphy’s observation in dissent below, that "in light of the city’s change in utilization policy, it is inconceivable that any such approval would be forthcoming” (111 AD2d, at p 54).

That change in policy resulted from a study instituted for the purpose of ascertaining methods by which the city could promote the best use of city-owned land such as would forestall the loss of back office jobs that would result from threatened relocations in the financial and securities industries. As a preventative measure, the report recommended that the city set aside large parcels of city-owned land for direct sale to companies wishing to construct their own back office space without the added expense and delay that the use of a developer might entail. Negotiations were terminated with plaintiff as a direct result of the study and the change in land-use policy.

Rochester Park v City of Rochester (38 Misc 2d 714, affd 19 AD2d 776), relied upon heavily by plaintiff and the courts below, is plainly distinguishable, and in any event not binding. There, the contract sought to be enforced had been fully approved by the City Council, the relevant governing body (38 Misc 2d, at p 716), and appears to have been quite specific in creating presently enforceable duties and obligations upon the City of Rochester, rather than a mere agreement to agree (see, 38 Mise 2d, at pp 715-716).

It should also be noted that the designation letters explicitly state that the developmental planning of the sites was to be undertaken at plaintiff’s “sole risk, cost and expense”. Thus, irrespective of the other contractual terms, plaintiff cannot, as a matter of law, obtain recompense for such expenses.

For these reasons, I would reverse the order of the Appellate Division and grant the city’s motion to dismiss the first and second causes of action.

Judges Meyer, Simons, Kaye and Hancock, Jr., concur; Judge Titone dissents and votes to reverse in an opinion in which Judge Alexander concurs; Chief Judge Wachtler taking no part.

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


text:
    In the Matter of Brian Davis, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Decided May 8, 1986

      APPEARANCES OF COUNSEL

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

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs (see, People ex rel. Vega v Smith, 66 NY2d 130).

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


text:
    Sisters of Saint John the Baptist, Providence Rest Convent, Respondent, v Phillips R. Geraghty Constructor, Inc., Appellant.
    Argued March 24, 1986;
    decided May 8, 1986
    APPEARANCES OF COUNSEL

      John M. Rowland for appellant.

      Ralph M. Cursio for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition to stay arbitration denied.

Respondent, Phillips R. Geraghty Constructor, Inc., contracted with petitioner, the Sisters of St. John the Baptist, to renovate their convent, an old building then in disrepair. The agreement — essentially, the American Institute of Architects Abbreviated Form of Agreement Between Owner and Contractor — was a limited-scope construction contract for the stipulated sum of $592,000. In a rider, the parties provided for added allowances for "changes in the scope of work”, but the total contract price was in no event to exceed $700,000. The agreement contemplated arbitration of "[a]ll claims or disputes between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof’.

Work commenced in September 1982, and as the renovation proceeded, the contract was several times modified to reflect the extra work apparently necessitated by unforeseen conditions. Respondent submitted monthly payment applications through the architect (who functioned as petitioner’s representative), and as of May 1983 had received $631,431.75 for labor and materials. Shortly thereafter a dispute developed concerning cost overruns, and when agreement could not be reached, respondent refused to continue.

In January 1984, respondent filed a notice of intention to arbitrate, demanding $310,068.25 as the unpaid balance due for labor and materials supplied to the project in accordance with instructions of the architect. According to respondent’s demand, "portions of said labor and materials were outside the scope of the [parties’] agreement.” Petitioner sought to stay arbitration, claiming that the labor and materials for which respondent sought payment were not authorized by the contract or any written change order, and therefore not subject to arbitration. Special Term’s stay of arbitration was affirmed by the Appellate Division, one Justice dissenting.

It is of course for the court in the first instance to determine whether parties have agreed to submit their disputes to arbitration and, if so, whether the disputes generally come within the scope of their arbitration agreement. The court’s inquiry ends, however, where the requisite relationship is established between the subject matter of the dispute and the subject matter of the underlying agreement to arbitrate. In disputes subject to arbitration, interpretation of particular contract terms must be left for the arbitrators (see, Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 5; Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co., 37 NY2d 91, 95-96).

Here, the subject matter of the dispute falls within the ambit of the arbitration agreement. The arbitration clause provided broadly for arbitration of all disputes "arising out of, or relating to, the Contract Documents”. "Contract Documents” referred not only to the original agreement and plans but also to later modifications and written changes, the intent being to include "all items necessary for the proper execution and completion of the Work.” "The Work comprises the completed construction required by the Contract Documents and includes all labor necessary to produce such construction, and all materials and equipment incorporated or to be incorporated in such construction.” Given these defined terms, disputes relating to extra work allegedly authorized and required for execution and completion of respondent’s renovation of the convent arise out of or relate to the "Contract Documents” and thus fall generally within the arbitration clause.

Two additional points bear note. First, the lower courts placed undue reliance on respondent’s statement in its demand that "portions of said extra work were outside the scope of the above described agreement”. While the particular items that are the subject of the claim may or may not be outside the scope of the original documents, the parties also provided for "changes in the scope of the work”, and extra work in connection with such changes still may be considered as "arising out of, or relating to, the Contract Documents or the breach thereof’. Second, we decide only whether arbitration or litigation is the appropriate forum for resolution of the dispute. Petitioner’s fear that submission of the matter to arbitration somehow acknowledges liability for a price in excess of the stipulated sum is without basis, for the import of that and other contract terms is yet to be determined upon the proof to be taken.

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

Order reversed, etc.