author: Per Curiam.

text:
    Retail Software Services, Inc., Plaintiff-Appellant, v Hal Lashlee et al., Defendants, and William Janeski et al., Defendants-Appellees.
    Argued May 26, 1988;
    decided June 9, 1988

      POINTS OF COUNSEL

      Andre R. Jaglom, Jamie B. W. Stecher and Josiah Green-berg for plaintiff-appellant.
    I. The franchise sales act confers personal jurisdiction over the moving defendants. (Matter of Guardian Life Ins. Co. v Chapman, 302 NY 226; Hess v Pawloski, 274 US 352; National Rental v Szukhent, 375 US 311; Bingham v Ryder Truck Rental, 110 AD2d 867; LaPlaca v Hutcheson, 191 MisC 27; Leasco Data Processing Equip. Corp. v Maxwell, 468 F2d 1326; Nordic Bank PLC v Trend Group, 619 F Supp 542; Grosser v Commodity Exch., 639 F Supp 1293; Ellis v Riley, 53 MisC 2d 615. 29 AD2d 562; In re Mid-Atlantic Toyota Antitrust Litig., 525 F Supp 1265, 541 F Supp 62, affd sub nom. Commonwealth of Pa. v Mid-Atlantic Toyota Distribs., 704 F2d 125.) II. Jurisdiction over appellees is consistent with due process. (Burger King Corp. v Rudzewicz, 471 US 462; Calder v Jones, 465 US 783; Stuart v Federal Energy Sys., 596 F Supp 458; Haddad v Lewis, 382 F Supp 1365; Shaffer v Heitner, 433 US 186.)
    No submission by defendants-appellees.
   OPINION OF THE COURT

Per Curiam.

The United States Court of Appeals for the Second Circuit has certified to this court the following question: "[W]hether New York’s Franchise Sales Act, N.Y. Gen. Bus. Law § 686 (McKinney 1984), provides a basis for personal jurisdiction as well as a method for service of process.” Although we accepted the question for review pursuant to section 500.17 of this court’s rules (22 NYCRR 500.17), upon such review we now conclude that the question, as proffered, does not satisfy our State constitutional requirement that the question certified "may be determinative of the cause * * * pending in the certifying court” (NY Const, art VI, § 3 [b] [9]). Therefore, we must decline to answer the question.

The question arose in the following context. Plaintiff, a New York corporation, entered into seven franchise agreements with Software Centre International (SCI), a California franchisor, for microcomputer software retail stores to be located in New York State. Shortly thereafter, however, SCI went bankrupt and never performed the agreement. Plaintiff then commenced this lawsuit in the Federal District Court for the Eastern District of New York seeking recovery of deposits it paid and expenses it incurred under the agreements. Among other things, plaintiff alleged that during a California meeting defendants Robert Fick and William Janeski, both California residents and officers of SCI, had made various misrepresentations concerning SCI’s financial condition and other relevant aspects of the arrangement, upon which plaintiff relied in entering into the agreements. Plaintiff claimed that, by reason of these misrepresentations, defendants had violated New York’s Franchise Sales Act (General Business Law § 680 et. seq.).

The United States District Court granted the motions of Janeski and Fick to dismiss the complaint as against them for want of personal jurisdiction. The court rejected plaintiff’s claim that a jurisdictional basis could be found in General Business Law § 686, which provides that "[a]ny person who shall offer to sell or sell a franchise in this state as a franchisor, subfranchisor or franchise sales agent shall be deemed to have irrevocably appointed the secretary of state as his or its agent upon whom may be served [process] directed to such person, or any partner, principal, officer, salesman or director thereof’. In addition, relying in part on the fiduciary shield doctrine, the court held that SCI’s activities in New York did not provide a basis for jurisdiction over the individual defendants under CPLR 302 (a). Plaintiff appealed to the Second Circuit Court of Appeals which, as noted, certified to this court the question quoted above.

It is now apparent that the question certified does not comport with our rules (22 NYCRR 500.17) or the constitutional provision which authorizes our response to certified questions (NY Const, art VI, § 3 [b] [9]) because it does not satisfy the requirement that it "may be determinative” of the pending action. If we were to answer the question, as framed, in the affirmative, we would establish only the abstract proposition that, in some circumstances, section 686 provides a basis for jurisdiction. Such an answer would not necessarily determine, for example, whether the statute provides a basis for jurisdiction where, as in the present case, the individual defendants have apparently engaged in no activities within this State.

In addition, the certified question asks only whether the statute provides a basis for personal jurisdiction as well as a method for service of process, but we cannot answer that question in a vacuum, divorced from consideration of the constitutionality of the statute in its actual application. Defendants mounted a constitutional challenge in the District Court, based on the absence of minimal contacts, but neither the certified question nor plaintiffs unopposed submission in this court permits consideration of that issue. We would have to assume constitutionality in order to answer the question posed.

Finally, even if this court were to conclude that this statute did not provide a basis for personal jurisdiction, that answer would not be determinative here, since the question would remain whether our long-arm statute (CPLR 302) makes these defendants amenable to suit in this State in any event. Thus, however we might respond to the question, as framed, our answer would not be meaningful, let alone dispositive of the cause pending in the Second Circuit.

Accordingly, the question certified to this court by the United States Court of Appeals for the Second Circuit should not be answered upon the ground that it does not satisfy the requirements of article VI, § 3 (b) (9) of the New York Constitution and section 500.17 of this court’s Rules of Practice.

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

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this court pursuant to section 500.17 of the Rules of Practice of the New York State Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for one of the parties and consideration of a brief and appendix submitted, no other parties having appeared or submitted papers, certified question not answered.

       We note that the District Court’s decision preceded our discussions of the fiduciary shield doctrine in Kreutter v McFadden Oil Corp. (71 NY2d 460) and CPC Intl. v McKesson Corp. (70 NY2d 268).


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    Anthony Della Pietra et al., Respondents, v State of New York, Appellant.
    Argued April 21, 1988;
    decided June 9, 1988

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.
    I. The decision of the court below impermissibly chilled prosecutorial conduct, even though the Task Force may and does perform mixed "prosecutorial” and "investigatory” functions. (Imbler v Pachtman, 424 US 409; Lerwill v Joslin, 712 F2d 435; Ybarra v Reno Thunderbird Mobile Home Vil. 723 F2d 675; Hawkins v Steward, 653 F Supp 868; Goldschmidt v Patchett, 686 F2d 582; Atkins v Lanning, 556 F2d 485; McSurely v McClellan, 697 F2d 309, 474 US 1005; Freeman v Blair, 793 F2d 166; Barbera v Smith, 654 F Supp 386.) II. At the very least, prosecutorial cooperation with State Police in applying for warrants prior to Matter of B. T. Prods., should entitle the Task Force to receive qualified immunity. (Butz v Economou, 438 US 478; Harlow v Fitzgerald, 457 US 800; Martin v D. C. Metropolitan Police Dept., 812 F2d 1425, 817 F2d 144, 824 F2d 1240; Malley v Briggs, 475 US 335.) III. Claimants are not entitled to recover damages for lost profits or net worth. (Lloyd v Town of Wheatfield, 67 NY2d 809; Kenford Co. v County of Erie, 67 NY2d 257.)

      James M. Hartman and Philip G. Spellane for respondents.
    I. The court below correctly held that the State was not entitled to absolute immunity. This court has twice held that the prosecutorial power necessary to apply for and execute a search warrant is expressly contingent upon the requisite approvals which the Organized Crime Task Force concededly never obtained. (Imbler v Pachtman, 424 US 409; Powers v Coe, 728 F2d 97; Taylor v Kavanagh, 640 F2d 450; Matter of B. T. Prods. v Barr, 44 NY2d 226; People v Rallo, 39 NY2d 217; Lee v Willins, 617 F2d 320, 449 US 861; Barbera v Smith, 654 F Supp 386; Marrero v City of Hialeah, 625 F2d 499, cert denied sub nom. Rashkind v Marrero, 450 US 913; McSurely v McClellan, 697 F2d 309.) II. The Organized Crime Task Force enjoys no qualified immunity because, in failing to obtain the necessary approvals, it violated law which was clearly established by statute and this court. (Harlow v Fitzgerald, 457 US 800; Matter of B. T. Prods. v Barr, 44 NY2d 226; People v Rallo, 39 NY2d 217; Broughton v City of New York, 91 Misc 2d 543, 95 Misc 2d 807; Jones v Johnson, 402 F Supp 992.) III. The Organized Crime Task Force’s conduct was tortious in several respects. In addition to negligence, the State was guilty of malicious prosecution and conversion as a result of which claimants suffered substantial damages. (Parvi v City of Kingston, 41 NY2d 553; Frady v State of New York, 19 AD2d 783; Herman v State of New York, 78 Misc 2d 1025; Martin v Herzog, 228 NY 164; Beauchamp v New York City Hous. Auth., 12 NY2d 400; Sanchez v Village of Liberty, 49 AD2d 507, 38 NY2d 835; Coolidge v New Hampshire, 403 US 443; Matter of B. T. Prods. v Barr, 44 NY2d 226; Palsgraf v Long Is. R. R. Co., 248 NY 339.) IV. Claimants are entitled to damages for the destruction of their business. The State offered no proof to rebut the damages proven by claimants. (Woodson v New York City Hous. Auth., 10 NY2d 30; Hull v Littauer, 162 NY 569; Donovan v Burkowski, 51 AD2d 878; Kenford Co. v County of Erie, 67 NY2d 257; Lloyd v Town of Wheatfield, 67 NY2d 809; Steitz v Gifford, 280 NY 15; Contemporary Mission v Famous Music Corp., 557 F2d 918; Story Parchment Co. v Paterson Co., 282 US 555; Taylor v Bradley, 39 NY 129.)
   OPINION OF THE COURT

Hancock, Jr., J.

Claimants have recovered a judgment against the State for damages to their business resulting from actions of the New York State Organized Crime Task Force in illegally entering and searching their premises; seizing books, records and other property; and retaining them for a prolonged period of time. The conduct of the State agents in invading these claimants’ rights, we have previously held, was without any statutory or other authority (see, Matter of B. T. Prods. v Barr, 44 NY2d 226, 236). The principal issue presented by the State in its appeal is whether, notwithstanding this lack of authority, it may assert absolute prosecutorial or quasi-judicial immunity for the acts of its agents. For the reasons which follow, we hold that it may not. Moreover, in view of the undisturbed findings of bad faith, we also conclude that the State’s assertion of qualified immunity here is unavailing.

I

Barry Tuttle and claimant Anthony Della Pietra were co-owners of claimant B. T. Productions, Inc., which operated a dinner theater in East Rochester, New York. Although the business was doing well, the partners had a falling out over how it should be run. When Della Pietra took over sole operation of the business and tried to make Tuttle sell him his interest, Tuttle, apparently out of spite, went to the Task Force and reported that the business was engaged in organized crime.

Based in part on an affidavit signed by Tuttle, the Task Force obtained a search warrant and seized the bulk of the theater’s books and records. After trying repeatedly to recover them, Della Pietra and B. T. Productions commenced a CPLR article 78 proceeding seeking a writ of prohibition vacating the search warrant and compelling return of the items seized. The Appellate Division granted the petition and issued the writ (Matter of B. T. Prods. v Barr, 54 AD2d 315). We affirmed, holding that due to "the absence of any statutory authority to obtain a search warrant, it is clear that the Task Force lacked the power to make such an application, and thus the court exceeded its jurisdiction in issuing the warrant” (44 NY2d 226, 236, supra). Nearly two years after the seizure of claimants’ property, it was returned to them. They were never indicted or prosecuted. No evidence against them was ever presented to a Grand Jury or other accusatory authority.

In the Court of Claims, claimants presented proof that the illegal search and seizure and the surrounding adverse publicity caused their customers to stay away and ultimately forced B. T. Productions into bankruptcy. The court found the State responsible and assessed damages in the amount of $777,000. The Appellate Division modified, adding interest from the date the claim was filed, and otherwise affirmed. We now affirm.

II

The State contends that no recovery should have been allowed because, contrary to the holdings of the lower courts, the Task Force’s conduct in obtaining and executing the search warrant was either prosecutorial or quasi-judicial in nature and, therefore, entitled to absolute immunity (see, Imbler v Pachtman, 424 US 409; Tarter v State of New York, 68 NY2d 511; Tango v Tulevech, 61 NY2d 34; Schanbarger v Kellogg, 35 AD2d 902, appeal dismissed 29 NY2d 649, cert denied 405 US 919). We disagree.

In the usual case where the government professes entitlement to absolute sovereign immunity, no question arises concerning the authority of its officials to act (see, e.g., Arteaga v State of New York, 72 NY2d 212, 218; Tango v Tulevech, supra, at 41-42). The sole question, ordinarily, is whether the official actions constitute discretionary conduct which sufficiently manifests the attributes of judicial decision-making to merit full immunity (Arteaga v State of New York, supra, at 217; Tarter v State of New York, supra, at 518-519; Santangelo v State of New York, 101 AD2d 20, 28-29). Where, however, the official "has stepped outside the scope of his authority” (Teddy’s Drive In v Cohen, 47 NY2d 79, 82) and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are prosecutorial or quasi-judicial in nature (see, Rudow v City of New York, 822 F2d 324, 327-328 [2d Cir]; Ybarra v Reno Thunderbird Mobile Home Vil., 723 F2d 675,678 [9th Cir]; Prosser and Keeton, Torts § 132, at 1058-1059 [5th ed]). Thus, if, as claimants contend, the Task Force acted without any colorable claim of authority, the State would not be entitled to absolute immunity, even if its acts would otherwise have been considered quasi-judicial in nature and for that reason deserving of full protection.

With few exceptions, the Legislature has delegated the responsibility for prosecuting persons accused of crime solely to the District Attorney, the public officer entrusted with the general prosecutorial authority for all crimes occurring in the county where elected (see, County Law §§ 700, 927; Matter of Darvin M. v Jacobs, 69 NY2d 957, 959; see also, Matter of Turecamo Contr. Co., 260 App Div 253, 257). The Attorney-General, by contrast, is given no general prosecutorial authority and, except where specifically- permitted by statute (see, e.g., General Business Law §§ 358, 692; Executive Law § 70-a), has no power to prosecute criminal actions (see, Matter of B. T. Prods. v Barr, 44 NY2d 226, 236, supra; People v Di Falco, 44 NY2d 482, 485-486; People v Rallo, 39 NY2d 217, 221-223). Similarly, the Task Force, as an arm of the Attorney-General and a creature of the State, "has no power other than that given it by the Legislature” (Matter of B. T. Prods. v Barr, supra, at 236; see, People v Di Falco, supra, at 486; Governor’s Mem in support of Executive Law § 70-a, reprinted in 1970 McKinney’s Session Laws of NY, at 3142).

The Legislature enacted Executive Law § 70-a for the specific purpose of creating an agency capable of investigating and prosecuting multicounty organized criminal activity, a duty which local prosecutors were unable to perform satisfactorily "because of their limited resources and restricted geographical jurisdiction” (see, Legislative Findings, L 1970, ch 1003, §1 [3]). This exceptional grant of prosecutorial authority to the Task Force was not self-executing and it was subject to specific limitations and conditions (see, Executive Law § 70-a [7]; cf., Matter of Additional Jan. 1979 Grand Jury v Doe, 50 NY2d 14, 18 [evaluating Attorney-General’s power under similar provision in Executive Law § 63 (2)]). Thus, in Matter of B. T. Prods. v Barr (supra) we held that, without prior authorization by the Governor and approval by the local District Attorney, "it is clear that the Task Force lacked the power” to apply for and execute the search warrant here in question (Matter of B. T. Prods. v Barr, supra, at 236; see, Governor’s Mem in support of legislation, op. cit., at 3143; but see, n below).

Notwithstanding the import of our decision in Matter of B. T. Prods. v Barr (supra), the State maintains that its Task Force agents, as representatives of the Attorney-General’s office, were acting under some colorable authority in obtaining the search warrant; that they were merely operating under a mistaken assumption as to the scope of their jurisdiction. The argument, however, simply overlooks the essential point that the Attorney-General is without any prosecutorial power except when specifically authorized by statute. Here, the agents and the Attorney-General were not prosecutors acting illegally or in excess of their authority; they were not prosecutors at all (cf., Rudow v City of New York, supra, at 329 [Human Rights Commission staff attorney acting without "the bureaucratic boundaries of her position” but, nevertheless, within the general jurisdiction of the agency]; Lerwill v Joslin, 712 F2d 435, 439-440 [10th Cir] [city attorney having prosecutorial authority for misdemeanors mistakenly presenting complaint involving felony charge]; see also, Barr v Abrams, 810 F2d 358, 361-362 [2d Cir]). We conclude, then, that because the Task Force agents had no colorable claim of authority, the State has no basis for asserting absolute immunity.

Ill

Defendant argues, nevertheless, that even if the actions of its Task Force agents were performed in the clear absence of jurisdiction or authority, it would be entitled to qualified immunity. On these facts, however, any claim of qualified immunity would not shield the State from liability.

Qualified immunity does not shield the State from liability where its officials acted in bad faith or without a reasonable basis (see, Arteaga v State of New York, supra, at 216; Matter of Friedman v State of New York, 67 NY2d 271, 283-285; cf., Tango v Tulevech, supra, at 42). The undisturbed findings support the Court of Claim’s conclusions that "the Task Force was careless, was grossly negligent and recklessly exercised a power over claimant which it did not rightly have”, and that its conduct in procuring and executing the search warrant "was unconscionable, to phrase it in the most charitable light” (emphasis added). These factual findings, which are fully dispositive of the legal issue concerning qualified immunity under established New York law, have support in the record and, therefore, are beyond our review.

We have considered the State’s other contentions and find them to be either unpreserved or without merit.

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

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

Order affirmed, with costs.

       Executive Law § 70-a was amended after the execution of the warrant and our decision in Matter of B. T. Prods. v Barr (44 NY2d 226). The law as it existed at the time the action arose applies to this case.


text:
    Foreal Homes, Inc., Appellant, v Incorporated Village of Muttontown et al., Respondents.
    Argued February 8, 1988;
    decided March 17, 1988

      APPEARANCES OF COUNSEL

      Donald F. Leistman, Adolph Koeppel and James DeCuzzi for appellant.

      Peter P. MacKinnon and Thomas A. Abbate for Incorporated Village of Muttontown, respondent.

      Jay R. Indyke for Dominick Foresto and others, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (128 AD2d 585).

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

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


text:
    Pearl-Wick Corporation, Appellant, v Chase Manhattan Bank, N. A., Respondent.
    Argued February 4, 1988;
    decided March 17, 1988

      APPEARANCES OF COUNSEL

      Harold S. Elovich for appellant.

      T. Gorman Reilly and Joseph A. Vogel for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. For the reasons stated in the Appellate Division memorandum (125 AD2d 249), the first, second and fourth causes of action were barred by the Statute of Limitations, and the third cause of action was properly dismissed for failure to state a valid basis for relief.

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

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


text:
    The People of the State of New York, Respondent, v Richard K. Jacquin, Appellant.
    Argued February 3, 1988;
    decided March 17, 1988

      APPEARANCES OF COUNSEL

      Steven G. Legum for appellant.

      Denis Dillon, District Attorney (Peter R. Shapiro and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was arrested for driving while intoxicated and subsequently charged with that crime as a felony (Vehicle and Traffic Law § 1192 [3], [5]). After his arrest he was removed to police headquarters where performance tests were administered to determine his sobriety. During the tests he was questioned about his pedigree and the fact that he had been requested to take a chemical analysis test and refused to do so (see, Vehicle and Traffic Law § 1194); he was also asked if he had been under medication at the time he was operating his vehicle or whether he was a diabetic. An audio/video tape of the questions and answers and of the performance tests was made.

Before trial defendant moved to generally suppress the sound portion of the tape because no Miranda warnings had been administered to him before he was questioned. The Judicial Hearing Officer ruled that Miranda warnings were not required because the police had not interrogated defendant (see, Rhode Is. v Innis, 446 US 291, 301; Edwards v Bray, 688 F2d 91, 92). At trial defendant made no objection to admission of police form 38 which contained many of the same questions and answers. It is the Judicial Hearing Officer’s determination that the audio/visual tape should not be suppressed, which was confirmed by the trial court and upheld by the Appellate Division, to which defendant assigns error.

Performance tests need not be preceded by Miranda warnings and, generally an audio/visual tape of such tests, including any colloquy between the test-giver and the defendant not constituting custodial interrogation, is admissible (see, People v Hager, 69 NY2d 141; see also, People v Boudreau, 115 AD2d 652). In this case defendant asserts that some of the questions and answers recorded on the tape constituted inadmissible custodial interrogation but inasmuch as he moved to suppress audio portions of the tape generally and failed to identify the specific questions and answers he found objectionable, the contentions of inadmissibility he now raises, are unpreserved and beyond our review (see, People v Tutt, 38 NY2d 1011).

We have considered defendant’s remaining argument — that the prosecutor was vindictive in indicting him for a felony after negotiations for a plea to a misdemeanor charge of driving while intoxicated failed — and find no merit to it (see, Bordenkircher v Hayes, 434 US 357, reh denied 435 US 918).

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

Order affirmed in a memorandum.


text:
    Leon Talbot et al., Plaintiffs, v Johnson Newspaper Corporation et al., Appellants, and Stuart P. MacLaren et al., Respondents.
    Argued February 3, 1988;
    decided March 17, 1988

      APPEARANCES OF COUNSEL

      S. Paul Battaglia for appellants.

      Nancy L. Pontius for defendants-respondents.
   OPINION OF THE COURT

Memorandum.

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

Leon Talbot and Jane Talbot commenced a defamation action against Stuart Macharen, his daughter Patricia Macharen, and Johnson Newspaper Corp. (as well as several individual media defendants), seeking damages for injury to his reputation as a coach at St. Lawrence University, caused by two letters written by Stuart Macharen. The letters dealt with two incidents recounted by Patricia Macharen to her father, which occurred in May 1982, allegedly involving Leon Talbot. In the first, a St. Lawrence student was struck and killed by a vehicle driven by a second student shortly after he left a party at the Talbots’ home; he was charged with operating a vehicle while his condition was impaired by alcohol, a charge that was eventually dismissed. Patricia Macharen, then a St. Lawrence senior, assisted in identifying the body and notifying the deceased’s roommates. The second incident occurred approximately two weeks later at a fraternity party where Macharen observed an individual she believed to be Leon Talbot in a severely intoxicated state.

More than two years after his daughter’s graduation, Stuart Macharen, a California resident, wrote from there to the university president and board of trustees criticizing the handling of the student’s death, describing his daughter’s account of the coach’s behavior at the campus party, and questioning the propriety of university requests for contributions from alumni in light of these events. In October 1984, defendant newspaper featured the letter (which had been sent to it by a trustee) in an article. The article quoted from the letter as well as a telephone interview with Patricia Macharen, also in California, in which she said, "I have no doubt in my mind that I saw the coach guzzling beer at the party.” Talbot insisted that the individual she saw must have been a look-alike. Four days later, the newspaper published a second article entitled "Coach’s Double Fell Asleep on Frat Sofa,” which reported that a man bearing an uncanny resemblance to Talbot was the person described in the Macharen letter. A subsequent letter written by Stuart Macharen reiterated that his daughter still maintained that the man on the sofa was heon Talbot.

The Macharens — both California residents who conducted no business in New York — moved to dismiss the action against them for want of personal jurisdiction. Special Term denied the motion, concluding that the requirements of CPhR 302 (a) (1) were satisfied by Patricia Macharen’s pursuit of a college degree here and by both Macharens’ interest in maintaining the value of that degree, and that there was a substantial relationship between the business transaction and the cause of action: "[ajbsent the four-year educational contract, the Macharens would not even have been in New York at the time of the basketball coach’s alleged intoxication”. The Appellate Division reversed and dismissed the complaint against the Macharens.

We agree with the Appellate Division that CPhR 302 (a) (1) —the section that governs the issue in this defamation action —does not support the exercise of personal jurisdiction over the Macharens. Essential to the maintenance of this action against the Macharens are some "purposeful activities” within the State and a "substantial relationship” between those activities and the transaction out of which the cause of action arose (McGowan v Smith, 52 NY2d 268, 272). Even if Patricia Macharen’s previous enrollment and attendance at a New York university satisfied the requirement of purposeful activities in New York, there was no showing that — years after termination of that relationship — there was the required nexus between the Macharens’ New York "business” and the present cause of action. While appellants urge that jurisdiction may constitutionally be premised on broader standards articulated by the United States Supreme Court (see, e.g., Asahi Metal Indus. v Superior Ct., 480 US 102, —, 107 S Ct 1026, 1033), the New York long-arm statute (CPhR 302) does not provide for in personam jurisdiction in every case in which due process would permit it (Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 71).

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Jamar Allah, Appellant.
    Argued February 5, 1988;
    decided March 17, 1988

      APPEARANCES OF COUNSEL

      Nancy E. Little and Philip L. Weinstein for appellant.

      Paul T. Gentile, District Attorney (Lawrence B. LaRaus and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Larry Scott, known by the nickname "Messiah”, was approached by three men — defendant and two unidentified persons — near the meeting place of the "Five Percenters”, a sect of which defendant is a member. A heated dispute ensued. Scott, then joined by his friend Edward Greene, aroused the anger of the three-man group by insisting that he was God. One of defendant’s two companions disputed Scott’s assertion, declaring "You’re not Messiah. You’re not God.” Scott maintained that he was. The argument intensified until Scott — who was unarmed — challenged the unidentified man to fight. Scott removed his jacket, took a few steps back, and cried "Come on.” Defendant’s companion pulled up his shirt and reached for a long black pistol. As he did, Greene — who was unarmed —rushed toward the man with the gun, but was shot from behind by defendant. Scott and Greene fled. Defendant’s companion chased after Scott, firing more than 10 shots, one of which felled Scott. Defendant ran up to Greene, who had collapsed to the ground, put a revolver to his head, robbed him and, when Greene tried to grab the gun, fired twice, hitting him once. Defendant then "pistol-whipped” Greene before fleeing the scene.

Following a jury trial, defendant was convicted of attempted murder, robbery and criminal possession of a weapon, all in connection with his actions toward Greene, and convicted of murder for acting as an accessory to the shooting of Scott. Criminal Term set aside the murder conviction, finding insufficient evidence that defendant shared a community of purpose with his companion. The Appellate Division reversed and reinstated the conviction.

Viewing the evidence in the light most favorable to the People (People v Marin, 65 NY2d 741, 742), we conclude that the People met their burden of proving defendant’s guilt beyond a reasonable doubt, having excluded every reasonable hypothesis other than defendant’s intent to assist his companion in the murder of Larry Scott. Defendant and his companion were both armed when they approached Scott and engaged in a heated argument. Defendant then intentionally aided his companion by shooting Greene in the back when Greene attempted to prevent the companion from shooting Scott, thereby enabling the companion to shoot and kill Scott. Defendant’s current assertion that he shot Greene spontaneously solely to protect his friend from Greene’s assault is belied by his own subsequent unprovoked aggressive behavior in approaching Greene after his collapse, and robbing, shooting and pistol-whipping him. Even if his assistance was not initially planned, the totality of the evidence permits only the conclusion that he knowingly participated and continued to participate even after his companion’s intentions became clear. The circumstances of the present case, therefore, support the conclusion drawn by the jury that defendant shared a "community of purpose” with his companion (see, People v Whatley, 69 NY2d 784, 785).

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

Order affirmed in a memorandum.

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


text:
    In the Matter of Patrick Carpenter, Respondent, v Board of Education of Locust Valley Central School District et al., Appellants.
    Argued February 8, 1988;
    decided March 17, 1988

      APPEARANCES OF COUNSEL

      Louis N. Orfan for appellants.

      John J. Naun and James R. Sandner for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Prior to his employment by respondent Board of Education, petitioner had received tenure as a high school science teacher in another school district in the county. On September 1, 1982, he was employed by respondent as a regular substitute science teacher. After completing one term, petitioner was granted probationary status effective February 28, 1983. Thereafter, the Board voted not to award him tenure and terminated his services effective February 27, 1985. By this article 78 proceeding, petitioner sought a declaration that he acquired tenure by estoppel when the Board retained his services after September 1, 1984 — a period of two years from his first employment by respondent as a substitute teacher and IV2 years from the inception of his probationary status. Petitioner contended that, as a previously tenured teacher, his maximum probationary period was only two years (Education Law § 3012 [1] [a]), and that this period was further reduced by a half-year "credit” for his term as a substitute teacher (Education Law § 2509 [1] [a]). Special Term accepted petitioner’s contention and the Appellate Division affirmed.

Education Law § 2509 (1) (a) provides that a teacher shall be appointed for a probationary period of three years, after which the teacher may be recommended for tenure. However, for a teacher who has rendered two years of satisfactory service as a regular substitute, the probationary period is limited to one year (Education Law § 2509 [1] [a]). Moreover, a period of service as a regular substitute teacher of less than two years may be applied to reduce the three-year probationary period proportionately (Matter of Robins v Blaney, 59 NY2d 393, 398). A separate section of the Education Law also applicable here — section 3012 (1) (a) — repeats the provision for a probationary period of three years but specifies that, for a teacher previously tenured in another school district in the State and not dismissed as a result of disciplinary charges, the probationary period shall not exceed two years.

We cannot accept petitioner’s contention that the separate statutory reductions from the three-year probationary period for regular substitute teachers (Education Law § 2509 [1] [a]) and for previously tenured teachers (Education Law § 3012 [1] [a]) may be aggregated. Neither these sections themselves— each independently beginning with the three-year probationary term — nor their legislative history state that they may be cumulated. Moreover, while there is a recognized distinction between regular and substitute service preceding tenure (see, Matter of Robins v Blaney, supra), accepting petitioner’s contention would as a practical matter eliminate any requirement of actual probationary teaching service for a previously tenured teacher with two years’ substitute service. The necessity for a term of actual probationary teaching service — providing an opportunity to evaluate a teacher designated by the Board of Education as a candidate for permanent tenure before that critical determination is made — is evident in various sections of the Education Law (see, e.g., §§ 2509, 2573, 3012, 3014). The response tendered to allay the concern that probationary service may be eliminated — that some minimum period of probationary service (perhaps one year) should be read into the statute — necessarily would require judicial legislation, and must be rejected for that reason.

Recognizing that the Legislature can act to confer the double deduction if that is its intention, we conclude that the statutory máximums of Education Law § 2509 (1) (a) and § 3012 (1) (a) are independent of each other, with the shorter of the two probationary periods to govern in particular cases when both are applicable. As a previously tenured teacher, petitioner was subject to the two-year probationary period, he was terminated before it expired, and he therefore did not acquire tenure by estoppel.

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

Order reversed, etc.

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


text:
    Leo Blank, Individually and as a Shareholder of Premium Gas Service, Inc., Appellant, v Jay Schafrann et al., Respondents, et al., Defendant.
    Submitted January 11, 1988;
    decided March 17, 1988
   Motion for reargument or amendment of remittitur denied. [See, 70 NY2d 887.]


text:
    Hanover Insurance Company, Respondent, v James P. Corcoran, as Superintendent of Insurance, Respondent, and The New York Automobile Insurance Plan, Appellant.
    Submitted January 4, 1988;
    decided March 17, 1988
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Timothy L., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued February 2, 1988;
    decided March 22, 1988

      APPEARANCES OF COUNSEL

      Carol Goldstein and Lenore Gittis for appellant.

      Peter L. Zimroth, Corporation Counsel (Lucy A. Cardwell and June A. Witterschein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Respondent, Timothy L., an alleged juvenile delinquent, was charged with acts (theft of an umbrella from a street vendor) which, if committed by an adult would constitute the crimes of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40).

At the commencement of the fact-finding hearing, the court directed the parties to make opening statements. The Assistant Corporation Counsel stated that he would prove the charges through the testimony of a police officer who had witnessed the entire incident and from other circumstances which would establish respondent’s intent and his lack of authority to possess the umbrella. After respondent’s attorney opened, the court, sua sponte, dismissed the charges. On appeal by the Corporation Counsel of the City of New York, the Appellate Division reversed, reinstated the petition and remanded the case for further proceedings.

The Family Court Act allows, but does not require, the parties to deliver opening statements (Family Ct Act § 342.1). The well-settled rule in criminal jury cases, however, is that a trial court may not dismiss after opening unless it shall appear from the statement that the charge cannot be sustained under any view of the evidence and it may dismiss then only after the prosecutor has been given an opportunity to correct any deficiency (see, People v Kurtz, 51 NY2d 380, 385). In this case, the Family Court dismissed the petition because it apparently believed that the presentment agency could not prove the charges without the testimony of the complaining witness. That is not true in all cases (see, People v Borrero, 26 NY2d 430) and, for the reasons set forth in the majority opinion at the Appellate Division, it was not true in this case. Accordingly, the Appellate Division properly reinstated the petition.

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

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


text:
    Mildred Lombardi et al., Appellants, v Ralph DeLuca, Respondent, et al., Defendant.
    Decided March 22, 1988

      APPEARANCES OF COUNSEL

      Jenny M. Maiolo for appellant.

      Gary J. Dwyer 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 (130 AD2d 632).

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


text:
    The People of the State of New York, Respondent, v James Louis McCleese, Appellant.
    Decided March 22, 1988

      APPEARANCES OF COUNSEL

      Reuben Ortenberg for appellant.

      Kenneth Gribetz, District Attorney (Janice Gittelman of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum at the Appellate Division (133 AD2d 852).

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


text:
    The People of the State of New York, Respondent, v Anthony Hewlett, Appellant.
    Decided March 22, 1988
    APPEARANCES OF COUNSEL

      Anthony Hewlett, appellant pro se.

      John J. Santucci, District Attorney (Seymour Roth of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that he was deprived of effective assistance of counsel is conclusory and without support in the record. Defendant fails to identify any theory of defense that was ignored or any particular witness that should have been called (see, People v Benn, 68 NY2d 941, 942). The record demonstrates that defense counsel vigorously cross-examined the People’s witnesses and delivered opening and closing statements that were entirely consistent with defendant’s alibi defense (see, People v Hood, 62 NY2d 863, 865). Thus, there is no support for defendant’s claim that he did not receive "meaningful representation” at trial (see, People v Jones, 55 NY2d 771, 773; People v Baldi, 54 NY2d 137, 147). Defendant’s remaining contentions are either without merit or unpreserved.

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

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


text:
    Davis-Wallbridge, Inc., Respondent, v City of Syracuse, Appellant.
    Argued February 2, 1988;
    decided March 22, 1988

      APPEARANCES OF COUNSEL

      C. Frank Harrigan, Corporation Counsel (James L. Gelormini, Kevin M. O’Neill and Lee Alcott of counsel), for appellant.

      Robert J. Frechette for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Defendant City of Syracuse contracted with plaintiff for improvements to a running track in one of its parks. Pursuant to the contract, defendant withheld a sum as liquidated damages when plaintiff failed to complete the work on time. Plaintiff commenced this action to recover the withheld amount.

Plaintiff admits that it failed to comply with the notice of claim provision contained in the Syracuse City Charter (see, § 8-115). It argues, however, that service of a notice of claim was not necessary because it followed the procedure set forth in the contract for presentment of disputes. We disagree. Compliance with the charter’s notice of claim clause, unless waived, is a condition precedent to the commencement of litigation against the City (see, Matter of Geneseo Cent. School [Perfetto & Whalen Constr. Corp.], 53 NY2d 306, 311). This statutory provision will be deemed to have been waived only where there is an express agreement that it is inapplicable or where waiver may be implied from the fact that the parties have "set out detailed procedures which are 'plainly inconsistent with those contained in that section’ ” (id., quoting Matter of Guilderland Cent. School Dist. [Guilderland Cent. Teachers Assn.] 45 AD2d 85, 86). Here there was no express agreement to waive the charter’s notice of claim provision, and the procedures set out in the dispute resolution clause are not plainly inconsistent with the charter’s. Thus, the plaintiff’s failure to serve a notice of claim requires dismissal of the action.

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

Order reversed, etc.


text:
    Bank of Montreal, Respondent, v Dunya Predovan et al., Appellants.
    Submitted January 4, 1988;
    decided March 22, 1988
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the order of the Supreme Court denying defendant Janeo Predovan’s motion to vacate that court’s judgment, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the order and judgment of Supreme Court, dismissed upon the ground that an appeal does not lie from a default judgment entered upon an uncontested inquest (CPLR 5511). Motion insofar as it seeks a stay and poor person relief dismissed as academic.


text:
    In the Matter of Joseph B. Margolin, Appellant, v Harold R. Newman, as Chairman of the Public Employment Relations Board of the State of New York, et al., Respondents.
    Decided March 22, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Marine Midland Bank, N. A., et al., Appellants, v Thomas McQuade Restaurant Co., Inc., Doing Business as The Bully Boy Chop House, Respondent.
    Submitted January 19, 1988;
    decided March 22, 1988
   Motion insofar as it seeks leave to appeal from the Appellate Division order dismissing plaintiffs’ appeal denied. Motion insofar as it seeks leave to appeal from the Appellate Division order denying plaintiffs’ motion for reargument or leave to appeal to this court dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Charles Fridman, Appellant.
    Argued February 9, 1988;
    decided March 24, 1988

      APPEARANCES OF COUNSEL

      Mark F. Pomerantz, David T. Grudberg and Herald Price Fahringer for appellant.

      Robert M. Morgenthau, District Attorney (Ann M. Donnelly and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In the context of the conversation between the defendant and the police, the defendant’s suggestions that he or the police might want to consult with his attorney with respect to certain matters cannot be said to constitute an unequivocal assertion of the right to counsel. In addition, we note that the defendant was not in custody, was in his own office and continued the discussion with the police as if the suggestions had never been made.

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

Order affirmed in a memorandum.

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


text:
    In the Matter of Jan Nastri, Respondent, v Ann Michel et al., Constituting the Planning Commission of the City of Syracuse, et al., Appellants.
    Decided March 24, 1988

      APPEARANCES OF COUNSEL
    C. Frank Harrigan, Corporation Counsel (Eleanor Theodore of counsel), for appellants.

      Robert D. Ventre for respondent.
   OPINION OF THE COURT

Memorandum.

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

When reviewing an application for a subdivision, the Syracuse Planning Commission is empowered to impose higher planning and design standards than otherwise provided in the local regulation where "[it] finds that because of exceptional and unique conditions of topography, location, shape, size, drainage, or other physical features of the site, or because of the special nature and character of surrounding development, the minimum standards * * * would not reasonably protect or provide for public health, safety, or welfare”. (City of Syracuse Subdivision Regulations § D.) Here, after a public hearing, respondent Planning Commission denied petitioner’s application to resubdivide 14 substandard lots in a residentially zoned district into seven conforming lots. The proposed resubdivision included six rectangular residential lots and one irregularly shaped lot that would continue its prior nonconforming use as a parking area.

While correctly recognizing the Planning Commission’s power to impose higher than minimum standards, the Appellate Division majority erred in holding that there was no substantial evidence to support the Planning Commission’s determination. Relying on area maps, the proposed resubdivision map and testimony of concerned neighbors at the hearing, the Planning Commission noted particularly (1) the location of the resubdivision site, situated at the corner of two narrow streets, (2) the potential snow removal and drainage problems, (3) the existing neighborhood on-street parking problems, (4) the fact that the proposed resubdivision included a shared driveway between two residential lots and (5) the fact that the proposed resubdivision would have the entire side yard of a residential lot bordering on the parking lot. Accordingly, the Planning Commission concluded that the public health, safety and welfare would be more reasonably protected by requiring that the proposed resubdivision contain only five residential lots, whose rear yards would border the parking lot, in order to provide a better buffer between the residential lots and the parking lot, to provide more sufficient off-street parking and to provide for more adequate snow storage and drainage. The Planning Commission’s determination is supported by substantial evidence, is rational and must be upheld (see Matter of Pittsford Plaza Assocs. v Spiegel, 66 NY2d 717, 719).

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

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


text:
    The People of the State of New York, Respondent, v Dennis Ray, Appellant.
    Decided March 24, 1988
    APPEARANCES OF COUNSEL

      Eugene A. Cordaro for appellant.

      Denis Dillon, District Attorney (John F. McGlynn of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged in an indictment with various offenses, including reckless endangerment and criminal possession of a weapon in the second degree, resulting from an incident in which he discharged a firearm in the direction of several men. In the words of the indictment, the weapon possession count accused him "of the crime of criminal possession of a weapon in the second degree, an armed felony, committed as follows: The defendant Dennis H. Ray, on or about the 30th day of December, 1982, in the County of Nassau, State of New York, did possess a loaded firearm with intent to use the same against the person of Eric Jarrett.” Following a jury trial, defendant was convicted of the weapon possession count and lesser offenses and sentenced to concurrent terms of imprisonment. On appeal, he argues that the indictment was jurisdictionally defective because it failed to allege that he intended to use the firearm unlawfully — one of the elements contained in the statutory definition of second degree weapon possession (Penal Law § 265.03).

"[A]n indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime.” (People v Iannone, 45 NY2d 589, 600; People v Motley, 69 NY2d 870, 872.) While no particular form is constitutionally mandated, an indictment must afford a defendant "fair notice of the charges made against him, so that he can prepare a defense and in order to avoid subsequent attempts to retry him for the same crime or crimes.” (People v Wright, 112 AD2d 38, 39 [dissenting opn], revd on dissent 67 NY2d 749.) Here, the indictment has incorporated Penal Law § 265.03 and the elements of the crime of criminal possession of a weapon in the second degree by adopting the title of the statute, and dismissal of the indictment was correctly denied because it afforded defendant "fair notice of the charges made against him”. (See, id.; People v Cohen, 52 NY2d 584, 586.) We note that while reaching the correct result, the Appellate Division incorrectly determined that dismissal was not required because the omission of the word "unlawfully” was "merely a ministerial error”, relying on People v Wright (supra). In Wright, however, dismissal was denied because the indictment incorporated the statutory elements of the crime charged by reference to the statute; alleged ministerial error was not the basis for the decision there, nor is it here.

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

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


text:
    John Eaton, Respondent, v Everett Harmer, Appellant.
    Decided March 24, 1988

      APPEARANCES OF COUNSEL

      John Alden Stevens for appellant.

      David E. Seaman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and a new trial granted for the reasons stated in the dissenting memorandum by Justices Doerr and Lawton at the Appellate Division (134 AD2d 836).

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


text:
    The People of the State of New York, Respondent, v Leonora Coe, Appellant.
    Argued February 4, 1988;
    decided March 24, 1988

      APPEARANCES OF COUNSEL

      Lawrence A. Vogelman and Barry C. Scheck for appellant.

      Edward J. Kuriansky, Deputy Attorney-General (Bonnie H. Stein, Donald H. Zuckerman and Neil B. Checkman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, a registered nurse employed at the Isabella Geriatric Center in Manhattan, was convicted under Public Health Law § 12-b (2), after a bench trial, of wilfully violating a provision of the Public Health Law and regulations adopted thereunder (see, Public Health Law § 12-b [2]) in connection with the alleged abuse or mistreatment of an elderly resident (see, Public Health Law § 2803-d [7]; 10 NYCRR 81.1 [a], [b]). Defendant was also convicted of falsifying business records in the second degree (Penal Law § 175.05) for making a false entry pertaining to the incident. Public Health Law § 2803-d (7) proscribes acts of physical abuse, neglect or mistreatment of residents or patients in facilities such as the Isabella Geriatric Center. Under 10 NYCRR 81.1 (a) the term "abuse” is defined as "inappropriate physical contact with a patient or resident of a residential health care facility * * * Inappropriate physical contact includes, but is not limited to, striking * * * shoving”. Under 10 NYCRR 81.1 (b) "mistreatment” is defined as, among other things, "inappropriate use of physical * * * restraints on * * * a patient or resident of a residential health care facility”.

According to the evidence adduced at trial defendant — attempting to locate two missing $5 bills — forcibly searched an 86-year-old resident who had a history of heart disease. Despite the resident’s repeated objections, defendant went through his pockets while an attendant pinned his arms behind him. Shortly after the incident, the resident died. Defendant made an entry in the resident’s medical records concerning the circumstances surrounding his death but failed to mention the search. The trial court in its written decision (131 Mise 2d 807, 809-810, 812) found that defendant had been instructed in appropriate behavior; that she knew her actions in searching defendant were improper; and that the entry she made in the resident’s records was false. On appeal, after a unanimous affirmance by the Appellate Division, defendant contends that the People did not make the required showing that she wilfully violated a provision of the Public Health Law or a Public Health Law regulation.

We decline to adopt the People’s contention that for criminal liability under Public Health Law § 12-b (2) it need only be shown that the defendant acted deliberately and voluntarily, as opposed to accidentally. This construction requires reading the word "wilfully” — not as modifying "violates”, the word which immediately follows it in the statute — but rather as describing the manner in which the underlying act was committed. In short, the People would have us read the statute as stating that any person who consciously performs an act, when such act happens to contravene some provision or regulation of the public health laws, is guilty of a misdemeanor. This construction contradicts the statute’s plain meaning. It would, in practical effect, result in the imposition of strict criminal liability for violations of scores of measures contained in the Public Health Law and regulations prohibiting seemingly innocuous conduct (see, e.g., 10 NYCRR 70.2, 79.6, 100.1 [e]). In the absence of a clear legislative intent to impose strict criminal liability, such construction should not be adopted (see, Penal Law § 15.15 [2]; Liparota v United States, 471 US 419, 426; LaFave and Scott, Substantive Criminal Law § 3.8 [c] [1986]). Moreover, the Legislature has demonstrated in other sections of the Public Health Law that when it intends to impose strict criminal liability, it does so clearly (see, Public Health Law § 2805-b [2] [a] [general hospital’s failure to render emergency medical care and treatment to a person in need of such care and treatment is a misdemeanor]; see also, Penal Law §§ 15.10, 15.15).

We also reject defendant’s contention, however, that for liability under Public Health Law § 12-b it must be shown that defendant acted with an "evil motive, bad purpose or corrupt design”. We hold that the Legislature, in using the term "wilfully” in Public Health Law § 12-b, intended a culpable mental state generally equivalent to that required by the term "knowingly” (see, Model Penal Code § 2.02 [8] [Official Draft and Revised Comments 1985]; see also, People v Angelakos, 128 Misc 2d 844, 848 revd on other grounds 70 NY2d 670; United States v Bishop, 412 US 346, 360). To require proof of an evil motive or intent to injure — higher culpable mental states appropriate for intentional crimes classified as felonies — for conduct in violation of a statute or regulation which the Legislature has seen fit to classify under Public Health Law § 12-b (2) as a misdemeanor would be impermissible judicial legislation. It would also be inconsistent with the legislative purpose of protecting the public against Public Health Law violations by criminalizing a broad range of conduct under Public Health Law § 12-b but, at the same time, treating such regulatory or statutory violations as crimes of less serious degree.

Nor were the People required, as defendant impliedly argues, to demonstrate that she knew she was violating a specific statute or regulation. Rather, the People were required to show only that defendant was aware that her conduct was illegal (see, People v Angelakos, supra, at 848; see also, Liparota v United States, supra, at 433-434; United States v Bishop, supra, at 360; United States v Golitschek, 808 F2d 195, 202 [2d Cir]). Here, defendant admitted receiving a copy of the patient’s bill of rights (codified in Public Health Law § 2803-c) and attending lectures regarding its contents. The bill of rights mandates, among other things, that residents must be free from having their personal privacy invaded; being physically or mentally abused; and being forced to do anything against their will (see, Public Health Law § 2803-c [3]). Moreover, defendant admitted that she knew that it would be inappropriate to search a patient who physically resisted. There is ample support in the record for the Trial Judge’s undisturbed finding that the People established "a knowing violation * * * of the statute” (see, 131 Misc 2d 807, 810, supra). Defendant’s remaining contention pertaining to her conviction for falsifying business records (see, Penal Law § 175.05) is without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., Bellacos a and Dillon concur.

Order affirmed in a memorandum.

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


text:
    Bryant Avenue Tenants’ Association et al., Respondents, v Edward I. Koch, as Mayor of the City of New York, et al., Appellants, New York City Rent Stabilization Association, Respondent, et al., Defendants.
    Argued February 9, 1988;
    decided March 24, 1988

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Elizabeth I. Freedman and Francis F. Caputo of counsel), for Edward I. Koch, as Mayor of the City of New York and others, appellants.

      Iris J. Korman and Dennis Hasher for Division of Housing and Community Renewal and others, appellants.

      Jonathan J. Silbermann and Steven DiJoseph for J.F.I.B. Realty Corp. and another, appellants.

      Andrew Scherer, Scott A. Rosenberg and John E. Kirklin for plaintiffs-respondents.
    New York City Rent Stabilization Association, respondent, precluded.

      Andrea T. Novick and Michael R. Finder for Franz S. Leichter and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

The motions of defendants to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]) were properly denied. The courts below correctly concluded that the complaint sufficiently pleads a cause of action under the Civil Rights Act (42 USC § 1983). Because the action was brought within the three-year limitations period of CPLR 214 (5), the claims under section 1983 are timely asserted (423 S. Salina St. v City of Syracuse, 68 NY2d 474, 480).

The courts below also properly rejected defendants’ argument that the claims arising under the Rent Stabilization Law and the Private Housing Finance Law should be litigated in an article 78 proceeding and are thus barred by the four-month period of limitations under CPLR 217. An article 78 proceeding is not the appropriate remedy to attack the validity of the Rent Stabilization Code, which is a quasi-legislative enactment (Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400, 408). Plaintiffs maintain that this cause of action is governed by the three-year period of limitations in CPLR 214 (2). We need not decide whether CPLR 214 (2) or 213 (1) applies because the action is timely in either event.

Further, we agree that Supreme Court did not abuse its discretion in ordering the joinder of Lydia Delgado, also known as Katherine Wender, and J.F.I.B. Realty Corp. as parties defendant (CPLR 1002 [b]). To the extent that their opposition to the motion was premised on Statute of Limitations grounds, the record fails to support their claim that the action was not commenced against them within three years of its accrual.

Finally, without detracting from the well-founded rule that where governmental operations are involved, class action relief is ordinarily inappropriate (see, Matter of Martin v Levine, 39 NY2d 72, 75; Matter of Jones v Berman, 37 NY2d 42, 57), we cannot say, in the circumstances presented, that it was an abuse of discretion as a matter of law to permit this class action to proceed against the governmental defendants. If plaintiffs succeed in procuring retroactive awards, the continued presence of these defendants in the action may aid in implementing that relief.

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

Order affirmed, etc.

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


text:
    In the Matter of Elliott Gross, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued February 10, 1988;
    decided March 24, 1988

      APPEARANCES OF COUNSEL

      Howard M. Squadron, Anthony Z. Scher and Mark E. Bennett for appellant.

      Robert Abrams, Attorney-General (Howard L. Zwickel, O. Peter Sherwood, Lawrence S. Kahn and John J. O’Grady of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner was New York City’s Chief Medical Examiner. Charges of professional misconduct in the performance of autopsies were brought against him under Education Law § 6509 (2). A committee was appointed to conduct the disciplinary hearing and an Administrative Officer (AO) was designated as a member of the committee (see, Public Health Law § 230 [10] [e]). On motion of petitioner, the AO ruled that performance of an autopsy is not the "practice of medicine” as that term is defined in Education Law § 6521. She dismissed the charges on the ground that the State Board for Professional Medical Conduct thus lacked subject matter jurisdiction. Following review by both the Commissioner of Health and the Regents Review Committee, the Board of Regents reversed the order of the AO and remanded the matter to the hearing .committee for further proceedings on the merits. An order was entered accordingly by the Commissioner of Education.

In this article 78 proceeding brought pursuant to Education Law § 6510-a (4), petitioner seeks relief in the nature of prohibition. He again asserts that because the performance of autopsies is not the practice of medicine, jurisdiction over the subject matter of the inquiry is lacking. While a proceeding in the nature of prohibition is the appropriate method of challenging subject matter jurisdiction (Matter of Steingut v Gold, 42 NY2d 311, 316; Matter of Dondi v Jones, 40 NY2d 8, 15; see, Matter of Rush v Mordue, 68 NY2d 348, 355), this petition is without merit and was, therefore, properly dismissed by the Appellate Division.

Education Law § 6521 defines the practice of medicine as "diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition.” Contrary to petitioner’s claim that medicine may be practiced only on living patients, the statute contains no such limitation (compare, Education Law § 6701 [practice of veterinary medicine defines "animal” as "every living creature except a human being”]). Clearly, an autopsy is the ultimate diagnostic procedure through which are determined the cause and means of death. Accordingly, since the practice of medicine includes the performance of autopsies, subject matter jurisdiction obtains.

We also reject petitioner’s argument that the decision and order of the AO dismissing the charges is not subject to review by the Commissioner of Health and the Board of Regents (see, Matter of Doe v Axelrod, 71 NY2d 484). While the authority of the AO to make legal rulings is statutorily defined (Public Health Law § 230 [10] [e]), neither Public Health Law § 230 nor Education Law § 6510-a precludes reversal of those rulings within the orderly process of administrative review. Absent a specific legislative mandate to the contrary, we perceive no basis for attributing finality to an order made by an Administrative Officer which erroneously dismisses charges of professional medical misconduct.

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

Judgment affirmed, with costs, in a memorandum.

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


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    In the Matter of the Arbitration between Anthony Sicari, Inc., Appellant, and Brentwood Yarn Mills, Inc., Respondent.
    Submitted March 14, 1988;
    decided March 24, 1988
   Motion for leave to appeal and for a stay denied, with $20 costs and necessary reproduction disbursements.


text:
    Marie Formichella, Respondent, v Alexander Formichella, Appellant.
    Submitted January 25, 1988;
    decided March 24, 1988
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the denial of defendant’s motion to vacate the default judgment, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that defendant is not a party aggrieved (CPLR 5511).


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    In the Matter of Anthony Ferraro.
    Decided March 25, 1988
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Anthony Ferraro is suspended, with pay, effective immediately, from his office of Justice of the Supreme Court, Ninth Judicial District, pursuant to NY Constitution, article VI, § 22 (f), (g) and Judiciary Law § 44 (8) (b), (c).

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


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    In the Matter of William R. Biersack.
    Decided March 25, 1988
   OPINION OF THE COURT

On the court’s own motion, it is determined that William R. Biersack is suspended, without pay, effective immediately, from his office of Justice of the Fishkill Village Court, pursuant to NY Constitution, article VI, § 22 (f), (g) and Judiciary Law § 44 (8) (b), (c).

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


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    In the Matter of Tax Foreclosure No. 35. City of New York, Respondent; Samson Wilson, Appellant.
    Decided March 29, 1988

      APPEARANCES OF COUNSEL

      A. David Stern for appellant.

      Peter L. Zimroth, Corporation Counsel (Angelo Aiosa of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant property owner in this in rem tax foreclosure action by the City seeks to set aside a default judgment and redeem his former property, contending that the Administrative Code of the City of New York §§ D17-16.0, D17-17.0 (now §§ 11-416, 11-417) denied him due process by the failure to provide for actual notice to all property owners prior to tax foreclosure (see, Matter of McCann v Scaduto, 71 NY2d 164). Petitioner’s challenge must be rejected, however, and the Appellate Division order affirmed, without reaching the constitutional issue. After learning of the judgment of foreclosure, appellant requested of the City essentially the same relief he now seeks of the courts. Appellant was advised that his request had been granted and the City’s interest in the property would be released if, within a given time, he paid the taxes, interest and penalties. For nearly two years thereafter appellant, however, took no action to make the payments or redeem the property. Having failed to avail himself of the right to redeem granted upon his request, appellant cannot now be heard to complain of a deprivation of due process in the forfeiture of the property (see, e.g. Selzer v Baker, 295 NY 145, 149).

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

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


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    In the Matter of Robert W. Knights, Appellant, v Joan Knights, Respondent.
    Argued February 5, 1988;
    decided March 29, 1988

      APPEARANCES OF COUNSEL

      Lois Goland, David C. Leven and Paul W. Van Ryn for appellant.

      Richard R. Hogle for respondent.
   OPINION OF THE COURT

Memorandum.

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

Following his conviction of a felony resulting in a prison sentence, petitioner applied to Family Court for a modification of a child support obligation fixed in a prior support order. Family Court denied petitioner’s application, concluding that it would be unfair for an individual who had freely chosen to commit a crime to be relieved from the accrual of a support obligation. The court thus decided the support order should remain in effect during the period of petitioner’s incarceration, but held that at the time of petitioner’s release, it would determine whether to enter judgment on the entire amount due, or to forgive part of the arrears that had accumulated since the filing of the application. The Appellate Division affirmed, concluding that Family Court had not abused its discretion.

In exercising its discretion whether to modify a child support order, Family Court may consider various factors, including "a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent” (Matter of Brescia v Fitts, 56 NY2d 132, 141 [citations omitted]; see, Family Ct Act § 451; Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 451, at 341). Significantly, the court may consider whether a supporting parent’s claimed financial difficulties are the result of that parent’s intentional conduct (see, e.g., Matter of Doscher v Doscher, 54 NY2d 655, affg 80 AD2d 945 [supporting parent’s lower income attributable to voluntary decision to accept less lucrative employment]; Weinberg v Weinberg, 95 AD2d 828 [supporting parent’s financial difficulties direct result of debts incurred through gambling]). Here, it is undisputed that petitioner’s current financial hardship is solely the result of his wrongful conduct culminating in a felony conviction and imprisonment. Thus, it cannot be said that Family Court abused its discretion in determining that these "changed financial circumstances” warranted neither a reduction of petitioner’s child support obligation nor a suspension in the accrual of the support payments during the period of petitioner’s incarceration.

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

Order affirmed, with costs, in a memorandum.

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


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    Marisol Datiz, an Infant, by Her Father and Natural Guardian, Luiz Datiz, Respondent, v M. Philip Shoob, Appellant, et al., Defendants.
    Argued February 10, 1988;
    decided March 29, 1988

      APPEARANCES OF COUNSEL

      Kenneth Mauro for appellant.

      Guy L. Heinemann for respondent.
   OPINION OF THE COURT

Memorandum.

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

It is generally true that the mere referral of a patient by one physician to another, without more, does not render the referring doctor vicariously liable for the negligence of the treating physician (see, Kavanaugh v Nussbaum, 71 NY2d 535; Hill v St. Clare’s Hosp., 67 NY2d 72, 79; Graddy v New York Med. Coll., 19 AD2d 426, 429, mot to dismiss appeal denied 13 NY2d 1175; Nisenholtz v Mount Sinai Hosp., 126 Misc 2d 658, 663). Here, however, there is evidence in the record from which the jury could have concluded that defendant — the referring pediatrician — had been independently negligent in diagnosing the infant plaintiff’s condition, and that this misdiagnosis constituted a proximate cause of plaintiffs injuries. This being so, defendant, as the initial wrongdoer, cannot escape liability merely by showing that the subsequent treating physician to whom plaintiff was referred was also negligent (see, Ravo v Rogatnick, 70 NY2d 305, 310; Suria v Shiftman, 67 NY2d 87, 98). We have examined defendant’s remaining contention and find it to be without merit.

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

Order affirmed, with costs, in a memorandum.

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


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    The People of the State of New York, Respondent, v Raymond Salaman, Appellant.
    Decided March 29, 1988

      APPEARANCES OF COUNSEL

      Stephen J. Pittari and Peter Paul Insero, Jr., for appellant.

      Carl A. Vergari, District Attorney (Maryanne Luciano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant appeals from his conviction, upon his guilty plea, of criminal possession of a weapon in the third degree, arguing that the arresting officer’s frisk which produced a .22 caliber revolver was not justified as a matter of law. At the suppression hearing, the arresting officer testified that, acting on an anonymous tip of a black male with a gun at South Fifth Avenue and West Third Street in the City of Mount Vernon wearing a long beige overcoat and a maroon sweatshirt with a hood on it, he reached the intersection and observed approximately 25 people milling about, but only defendant matched the description given. He approached defendant and ordered him to put his hands on the hood of the car and conducted a pat down of defendant’s outer clothing.

Any inquiry into the propriety of police conduct must weigh the degree of intrusion it entails against the precipitating and attending circumstances (People v De Bour, 40 NY2d 210, 223), and where the officer is justified in believing that the suspect is armed, a frisk for weapons is permissible (Terry v Ohio, 392 US 1, 27). The officer was of course duty bound to investigate the report (People v Landy, 59 NY2d 369, 374; People v Benjamin, 51 NY2d 267, 270), and his independent observations corroborated the information received, both as to the specific description of the suspect and as to the exact location where he could be found (People v Kinlock, 43 NY2d 832). It was night in what the officer testified was a high-crime area (see, People v Bronston, 68 NY2d 880, 881; People v McLaurin, 43 NY2d 902). He further testified that he acted for his own safety and for that of others in the vicinity. Under these circumstances, where the officer approached defendant without any weapon drawn and conducted only a pat down of defendant’s outer clothing, it cannot be said that the degree of intrusion employed was unreasonable. Inasmuch as there is evidence in the record to support the hearing court’s finding, undisturbed by the Appellate Division, that there was a sufficient predicate for the officer’s interference with defendant to secure the safety of the officer and others in the intersection, our review process is at an end (People v Jones, 69 NY2d 853, 855).

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

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


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    The People of the State of New York, Respondent, v Thomas Perry, Appellant.
    Decided March 29, 1988

      APPEARANCES OF COUNSEL

      Philip L. Weinstein and Arthur H. Hopkirk for appellant.

      John J. Santucci, District Attorney (Ernest Burstein of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for reasons stated in the memorandum of the Appellate Division (133 AD2d 380).

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


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    Retail Software Services, Inc., Appellant, v Hal Lashlee et al., Defendants, and William Janeski et al., Respondents.
    Decided March 29, 1988
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Court of Appeals Rules of Practice (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

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


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    Richard F. Colern, Appellant, v Prudential Insurance Company of America, Respondent.
    Submitted February 1, 1988;
    decided March 29, 1988
   Motion for leave to appeal denied. Appeal taken as of right withdrawn.


text:
    In the Matter of Albert E. McFerran, Appellant, v Board of Education, Enlarged City School District of Troy, Respondent.
    Submitted February 1, 1988;
    decided March 29, 1988
   Motion for reconsideration of December 17, 1987 order of dismissal denied. [See, 70 NY2d 926.]

Motion for leave to appeal denied.


text:
    William McKechnie, as President of the Patrolmen’s Benevolent Association of the New York City Transit Police Department, et al., Appellants, v Juan U. Ortiz, as Personnel Director of the City of New York, et al., Respondents. James J. Boyle, as President of the Uniformed Firefighters Association, et al., Intervenors-Appellants, v Juan U. Ortiz, as Personnel Director of the City of New York, et al., Respondents.
    Decided March 29, 1988
   Appeal, by plaintiffs William McKechnie et al., dismissed, without costs, by the Court of Appeals sua sponte, as untimely (CPLR 5513 [b]; 2103 [b] [2]).


text:
    Salvatore D. Rao, Respondent, v David Gunn, as President of the New York City Transit Authority, et al., Appellants.
    Submitted February 1, 1988;
    decided March 29, 1988
   Motion to dismiss appeal denied.


text:
    The People of the State of New York ex rel. Silvio Reynoso, Appellant, v James E. Sullivan, as Superintendent of Sing Sing Correctional Facility, et al., Respondents.
    Submitted February 1, 1988;
    decided March 29, 1988
   On the court’s own motion, appeal transferred, without costs, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for poor person relief dismissed as academic.


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    Berkshire Life Insurance Company, Respondent, v Charles A. Fernandez, Defendant, and Mary A. Fernandez, as Temporary Administratrix of the Estate of Charles A. Fernandez, Appellant.
    Argued February 3, 1988;
    decided March 31, 1988

      APPEARANCES OF COUNSEL

      Valerie Pulver for appellant.

      William E. Kelly and Nora V. Granito for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this action, plaintiff insurance company seeks to rescind a life insurance policy on the ground that, in the application for the policy, the insured made material misrepresentations concerning his health. The question presented by this appeal, which challenges the lower courts’ denial of defendants’ motion to dismiss the complaint, is whether the action is barred by the mandatory two-year incontestability clause, contained in the policy (see, Insurance Law § 3203 [a] [3]).

We agree with the Appellate Division that plaintiff timely contested the policy by delivering a copy of the summons to the Sheriff of Orange County (defendants’ county of residence) within the two-year period and by serving the summons upon the defendants within 60 days after the two-year period expired.

An insurance policy is contested "when the insurer avoids, or seeks to avoid, the obligation of the contract by action or defense” (Killian v Metropolitan Life Ins. Co., 251 NY 44, 49). Thus, the two-year incontestability clause required by law to be included in a life insurance policy establishes the time within which an action such as this one must be commenced; as we have noted, it is, in effect, a Statute of Limitations (id.). The decisive question, then, is whether delivery of the summons to the Sheriff is a sufficient means of commencing an action for the purpose of determining timeliness.

The question is answered by CPLR 203, which provides, in subdivision (a), that "[t]he time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed.” Accordingly, interposition of the claim is the event which determines timeliness. CPLR 203 (b) provides a number of methods of interposing a claim, among which is the method relied upon by plaintiff in this case: delivery of the summons to the Sheriff of the county where the defendant resides, provided that "the summons is served upon the defendant within sixty days after the period of limitation would have expired but for this provision.”

We long ago held that the predecessor to CPLR 203 (Code Civ Pro § 399) was applicable to limitations periods provided by contract, including those required by statute to be contained in insurance policies (see, Hamilton v Royal Ins. Co., 156 NY 327). There is no reason to depart from that holding today and, therefore, we accept the Appellate Division’s holding that the present action is not barred by the two-year incontestability clause.

We would note, however, that we do not endorse the reasoning that delivery of the summons to the Sheriff tolled or extended the incontestability period for 60 days. The effect of the delivery to the Sheriff, when followed by service upon the defendants within the 60-day period provided for by the statute, was that the claim was interposed — and therefore the action was commenced for timeliness purposes — within the two-year period. Thus, we have no need to pass on whether the various tolling provisions in article 2 of the CPLR are applicable to an action such as this one.

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

Order affirmed, etc.


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    The People of the State of New York, Respondent, v James McArthur Brooks, Appellant.
    Decided March 31, 1988

      APPEARANCES OF COUNSEL

      David P. Greenberg and Philip L. Weinstein for appellant.

      John J. Santucci, District Attorney (Seymour Roth of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We do not find error in the admission into evidence of declarant’s responses as excited utterances. The record clearly demonstrates that the statements were made before there was " 'time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance’ ” (People v Brown, 70 NY2d 513, 518, quoting People v Marks, 6 NY2d 67, 72). Declarant was critically wounded by the shotgun blast, physically and emotionally traumatized by the shooting and experiencing extreme pain. Although declarant faded in and out of consciousness, he was lucid at the time he made the statements.

Brown involved a 30-minute interval between the shooting and the declaration. Here, we are presented with a 2-to-2 Id-hour lapse of time. Nevertheless, given the other operative factors, declarant’s statements were admissible as excited utterances. We refuse to adopt a rule that fixes an "arbitrary limitation on the permissible period between the event and the excited utterance” (People v Brown, supra, at 520). Although, the statements at issue were induced by questions posed by declarant’s nurse, they did not interrupt the stress and excitement of the shooting (see, People v Brown, supra, at 522; People v Edwards, 47 NY2d 493, 498-499).

Given the violent nature of the altercation and all the other circumstances surrounding the declarations, we cannot say that the trial court erred in admitting the statements as excited utterances.

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

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


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    The People of the State of New York, Appellant, v Douglas A. Kinne, Respondent.
    Decided March 31, 1988

      APPEARANCES OF COUNSEL

      John T. Ward, District Attorney (Paul H. Andrews of counsel), for appellant.
    Respondent, precluded.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be reversed and the case remitted to that court for a review of the facts (see, CPL 470.25 [2] [d]; 470.40 [2] [b]).

County Court held below that the foundation evidence attesting to the proper working order of the breathalyzer was inadmissible because the attached authentication certificate was improperly dated. This conclusion was error. Where a "certification or authentication” replaces the testimony of a live witness, pursuant to CPLR 4518 (c), it must state that the documents that it authenticates were produced in the normal course of business at or near the time that the act, transaction, occurrence or event recorded in those documents occurred. The authenticating certificate itself need not be dated or produced at or near the date of the act, transaction, occurrence or event.

Here, the challenged authenticating certificates properly stated that the recordation of the tests performed on the breathalyzer and simulator solution occurred at or near the time these tests were performed (People v Mertz, 68 NY2d 136, 147-148). The fact that the authenticating certificates were dated from 8 to 36 days after the tests were performed is irrelevant to a determination regarding the admissibility, under the business records exception to the hearsay rule (see, CPLR 4518 [a]), of the records of those tests. The recordation of the calibration tests on the breathalyzer occurred seven days after the tests were performed. The recordation of the simulator solution tests occurred on the same day that the tests were performed. This is sufficient to satisfy the dictates of CPLR 4518 (a) and People v Mertz (supra). Contrary to the County Court ruling, the records of these tests were properly admitted.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to Chautauqua County Court for further proceedings in accordance with the memorandum herein.