text:
    The People of the State of New York, Respondent, v Charles H. Wing, Appellant.
    Argued January 4, 1991;
    decided February 12, 1991
    APPEARANCES OF COUNSEL

      Kevin P. Bradley for appellant.

      John C. Tunney, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be affirmed.

Defendant has been convicted after a jury trial of two counts of unlawfully dealing with a child in violation of Penal Law § 260.20 (4) upon evidence that he gave alcoholic beverages to two persons less than 21 years of age. Two teen-agers, 16 and 17 years old, testified at trial that on January 1, 1988 they asked defendant, who was of legal age, to purchase beer for them. When he agreed, they drove him to the supermarket, gave him the money to buy two six packs of beer and then drove him home. Defendant left the beer with them. Shortly thereafter the police stopped the teen-agers for a traffic violation, observed the beer in the car and were told defendant had purchased it. The teen-agers’ testimony was the only evidence linking defendant to the offense charged.

At the end of the People’s case, defendant moved to dismiss on the ground that the evidence produced by the People was legally insufficient as a matter of law because the teen-agers were accomplices under CPL 60.22 (2) and thus their testimony had to be corroborated. Village Court denied defendant’s motion, concluding'that the teen-agers could not be accomplices to the crime of unlawfully dealing with a child because they fell within the class of persons Penal Law § 260.20 (4) was intended to protect. County Court affirmed.

CPL 60.22 (2) defines an "accomplice” as "a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.” Defendant contends that the teen-agers were accomplices within the meaning of CPL 60.22 (2) (a) because they participated in the offense charged by providing defendant with the transportation and funds to purchase the beer (citing Penal Law § 260.20 [4]; § 20.00). However, to be considered an accomplice within the meaning of CPL 60.22 one must be "at least potentially subject to sanctions of a penal character for his participation in the crimes of the defendant on trial” (People v Fielding, 39 NY2d 607, 610; see also, People v Dorta, 46 NY2d 818, 820). Here, the teen-agers were, not potentially subject to prosecution under Penal Law § 260.20 (4) since they were recipients of the beer and thus within the class of individuals that statute was intended to protect. Additionally, as defendant concedes, mere possession of the beer by the teen-agers was not unlawful at the time of the incident (cf., Alcoholic Beverage Control Law § 65-c, eff Jan. 1, 1990). Accordingly, the teen-agers were not "accomplices” within the meaning of CPL 60.22 and their testimony did not have to be supported by corroborative evidence.

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

Order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Martti Antilla, Also Known as Martti Olavi Antilla, Appellant.
    Argued January 9, 1991;
    decided February 12, 1991
    APPEARANCES OF COUNSEL

      Harold V Ferguson, Jr., and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Robert L. Moore and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The uncontroverted evidence at trial established that in September 1982, defendant’s 84-year-old widowed great-aunt (now deceased) asked him to manage some of her financial affairs and that he agreed to do so. In October, she executed a will leaving him only one third of her estate. Approximately two months later, $180,000 was withdrawn from her passbook savings account and deposited into a newly created money market account which listed defendant and her as joint owners. At the time, the great-aunt’s minimal expenses were adequately met by her Social Security benefits. When the joint account was established, only the defendant’s address was placed on the account; thus, he alone received monthly statements of account. Over the next 14 months, defendant withdrew the bulk of the money from the joint account and deposited the sums into a high risk brokerage account which he maintained in his name alone. He moved out of the State six months after the joint account was opened, leaving his great-aunt’s financial affairs, but not the money market assets, in the hands of another relative. Most of the money was lost and the estate of defendant’s great-aunt has been only partially reimbursed. After defendant’s scheme was discovered, he was indicted for first degree criminal possession of stolen property and second degree larceny, and was convicted after a jury trial of the latter.

Defendant argues that the People failed to meet their burden of proving that he induced his great-aunt to establish the joint account by virtue of a false promise. In a prosecution for larceny based upon false promise, a finding of the defendant’s intention or belief that a promise would not be performed must be based upon evidence establishing that the facts and circumstances of the case are wholly consistent with guilt and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except the guilty one (Penal Law § 155.05 [2] [d]). As this Court has recognized, "a finding of larcenous intent may be made only where that determination flows naturally and reasonably from the facts in evidence and must exclude to a moral certainty any implication that the defendant has committed a mere civil wrong” (People v Luongo, 47 NY2d 418, 428).

The People adduced sufficient evidence in this case to support the inference that defendant induced his great-aunt to acquiesce in the opening of the joint account by virtue of defendant’s false promise. The jury’s finding of larcenous intent flowed "naturally and reasonably” from the entire array of facts and circumstances and "exclude[d] to a moral certainty” every hypothesis except defendant’s guilt.

Defendant also argues that as a joint owner in the money market account he could not be convicted of misappropriating money by unauthorized withdrawals from that account. This argument misses the point that the larcenous creation of the joint account, not defendant’s withdrawals from it, provided the basis for his conviction in this case (cf., People v Zinke, 76 NY2d 8 [general partner in limited partnership cannot be found guilty of larceny for misappropriating partnership funds]).

No other meritorious argument is presented affecting the validity of the verdict of guilt and judgment of conviction.

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

Order affirmed in a memorandum.


text:
    Fred D. Carman, Respondent, v European American Bank & Trust Company, Appellant.
    Submitted October 22, 1990;
    decided February 12, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.


text:
    Gerald Katz et al., Doing Business as CIKA Realty Co., Petitioners, v New York City Loft Board et al., Respondents. In the Matter of Caron Restaurant, Inc., Appellant, v New York City Loft Board et al., Respondents.
    Submitted December 17, 1990;
    decided February 12, 1991
   Motion for leave to appeal granted. Motion for a stay denied.


text:
    In the Matter of Veronica Johannesen, Respondent, v New York City Department of Housing Preservation and Development, Appellant. Workers’ Compensation Board, Respondent.
    Submitted December 24, 1990;
    decided February 12, 1991
   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 a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    Gerald Katz et al., Doing Business as CIKA Realty Co., Appellants, v New York City Loft Board et al., Respondents. (And Another Proceeding.)
    Submitted December 3, 1990;
    decided February 12, 1991
   Motion for leave to appeal granted. Motion for a stay denied.


text:
    179th Street Car Service, Inc., Appellant, v City of New York et al., Respondents.
    Submitted December 24, 1990;
    decided February 12, 1991
   Motion for leave to appeal denied. Cross motion for imposition of sanctions denied.


text:
    Ethel Richards et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Doris Kaskel et al., as Executors of Alfred L. Kaskel, Deceased, et al., Respondents. (And Seven Other Actions.)
    Submitted December 3, 1990;
    decided February 12, 1991
   Motion, treated as a motion to amend remittitur, dismissed as untimely (22 NYCRR 500.11 [g] [3]; Drzewinski v Atlantic Scaffold & Ladder Co., 70 AD2d 999). [See, 32 NY2d 524.]


text:
    The People of the State of New York, Respondent, v Elijah Watson, Appellant.
    Submitted November 5, 1990;
    decided February 12, 1991
    APPEARANCES OF COUNSEL

      Donald M. Thompson for appellant.

      Michael F. Griffith, District Attorney (David Di Matteo of counsel), for respondent.
   OPINION OF THE COURT

On the Court’s own motion, appeal dismissed on the ground that the counsel assigned by the Appellate Division has never been able to locate or contact the defendant and, thus, is without authority to prosecute this appeal on his behalf. Counsel is relieved of any further obligations to this defendant.

Motion for assignment of counsel and permission to prosecute the appeal as a poor person dismissed as academic.


text:
    In the Matter of Sharon Wilder, Respondent, v Richard J. Koehler, as Commissioner of the New York City Department of Correction, et al., Appellants.
    Submitted December 17,1990;
    decided February 12, 1991
   Motion for leave to appeal dismissed upon the ground that movant is not a party aggrieved (CPLR 5511).


text:
    The People of the State of New York, Respondent, v Marvin B. Sosnik, Appellant. The People of the State of New York, Respondent, v Dennis J. Pazos, Appellant.
    Argued January 9, 1991;
    decided February 14, 1991

      APPEARANCES OF COUNSEL

      Gerald B. Lefcourt and Erica Horwitz for Marvin B. Sosnik, appellant.

      David M. Werfel for Dennis J. Pazos, appellant.

      Charles J. Hynes, District Attorney (Robin A. Forshaw, Jay M. Cohen and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be modified in accordance with this memorandum and, as so modified, affirmed.

Defendants are chiropractors, maintaining individual practices in the metropolitan New York area, who allegedly conspired with an attorney named Kramer and his associates to defraud insurance companies by fabricating the injuries and treatment of accident victims. The facts of the scheme are set more fully in People v Ribowsky (77 NY2d 284 [decided today]). As a result of this conduct, defendants were convicted of conspiracy in the fifth degree and various counts of falsifying business records.

The trial was held in Kings County and at its conclusion defendants requested the court to submit the questions of venue and the Statute of Limitations to the jury. The requests were denied. On appeal, the Appellate Division modified by reversing defendants’ convictions for conspiracy and, in each case, remitting to Supreme Court for a new trial on that count, holding that the jury should have been instructed on whether the conspiracy charges were barred by the Statute of Limitations (see, People v Leisner, 73 NY2d 140). The propriety of that ruling is not before us. The Appellate Division also held that the trial court had committed error in failing to charge the jury on venue but found the error harmless. It affirmed the convictions for falsification of business records.

We agree with the Appellate Division that the failure to charge the jury on venue was error, but we do not consider the error harmless (cf., People v Ribowsky, 77 NY2d 284, supra).

The failure to submit the question of venue to the jury may be harmless where it appears from the verdict that the jury necessarily found that an overt act occurred in the county asserting jurisdiction. It is not enough that the record contains evidence of such conduct: it must appear from the instructions or, in the absence of instructions on the subject, by necessary implication from the verdicts that the jury made a finding that venue was proper (People v Ribowsky, supra). The error cannot be held harmless here because defendants contested the evidence supporting venue and there is nothing in the jury’s verdict from which it may be concluded that the jury decided the question against them. The agreement was not entered into in Kings County and none of the substantive crimes of falsifying business records occurred there.

In order to sustain jurisdiction over the conspiracy and substantive charges against defendants, the People were required to prove by a preponderance of the evidence the commission of an overt act in Kings County by a member of the conspiracy with whom defendant had agreed to engage in criminal conduct (see, Penal Law § 105.25 [1]; CPL 20.40 [1] [b]; People v Ribowsky, 77 NY2d 284, supra; see also, People v Moore, 46 NY2d 1; People v Hetenyi, 277 App Div 310, affd 301 NY 757; People v Hetenyi, 304 NY 80). The indictment alleged 100 overt acts, seven of them committed within Kings County, by defendants’ coconspirators. At trial, there was evidence at most of only one of these seven specified acts. Although the People also presented evidence of other unspecified overt acts occurring in Kings County to support jurisdiction, the bulk of the People’s evidence admittedly involved conduct occurring elsewhere and it is impossible to determine on the record which acts the jury relied on to support its conviction on the conspiracy charge. Under these circumstances, the court’s failure to submit the question of venue to the jury cannot be deemed harmless.

The substantive crimes alleged against defendants were committed outside of Kings County and jurisdiction over those charges was predicated on the statutory exception prevailing in cases of conspiracy (see, CPL 20.40 [1] [b]). We agree with defendants that reversal of the conspiracy charge also requires reversal of the substantive crimes because there remains no jurisdictional predicate for these charges in the absence of a finding of proper venue by the jury on the conspiracy charge. Thus, in addition to the new trial ordered by the Appellate Division as to the conspiracy count, there must be a new trial in each case on the falsifying business records counts.

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

In each case: Order modified in accordance with the memorandum herein and, as so modified, affirmed.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Lawrence Tucker, Appellant. The People of the State of New York, Respondent, v Warren Deveaux, Appellant.
    Argued January 10, 1991;
    decided February 14, 1991

      APPEARANCES OF COUNSEL

      Laurence M. Goodman and E. Joshua Rosenkranz for Lawrence Tucker, appellant.

      Diane Pazar and Philip L. Weinstein for Warren Deveaux, appellant.

      Robert M. Morgenthau, District Attorney (Morrie I. Kleinbart and Robert M. Raciti of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be affirmed.

During deliberations, the jury asked for reinstruction on the elements of first and second degree robbery. The Judge complied with that request, first listing the elements and then explaining them. While the Judge was explaining the elements, a juror apparently was taking notes. Noticing this, the Judge instructed the jurors that if disagreement arose between a juror’s recollection and the notes, the jurors must request a readback of the instruction. After this cautionary instruction, defense counsel asked the court "to direct the juror to rip her notes up.” The court denied the application, and counsel made no further request.

Defendants make only one claim regarding the juror’s notes (see, by contrast, People v Anderson, 151 AD2d 335; People v DiLuca, 85 AD2d 439). Defendants contend it was reversible error to permit the juror’s notes to be taken into the jury room, likening those notes either to a copy of a statute, which a jury may be given only with the parties’ consent (CPL 310.30; People v Sanders, 70 NY2d 837, 838), or to a partial written charge, presenting the same danger of misuse (People v Nimmons, 72 NY2d 830; People v Moore, 71 NY2d 684, 687; People v Brooks, 70 NY2d 896, 898; People v Owens, 69 NY2d 585, 591). Neither analogy is apt.

As contrasted with giving a jury selected portions of a written charge, here there was no danger that the jury would infer that the matter contained in the juror’s notes was of undue importance; the jurors themselves had requested the supplemental instruction, and the Judge’s cautionary instruction removed any possibility that the notes would be relied upon disproportionately as memories faded. Nor in these circumstances were the notes subject to the misuse we have identified when a copy of a statute is given to a jury. The court’s supplemental instruction was not simply a recitation of statutory elements, as the dissent contends, but an explanation of the relevant concepts. Thus there was no danger that the jurors would be left to interpret the law themselves.

Titone, J.

(dissenting). Unlike the majority, I would conclude that it was per se reversible error for the Trial Judge to permit the jurors to bring with them into the jury room, over defense counsel’s objection, notes taken by one of the jurors during the court’s supplemental charge on the elements of first and second degree robbery. Since it is clear that the court could not have given the jurors a written copy of those statutory elements without defense counsel’s consent (see, CPL 310.30; People v Nimmons, 72 NY2d 830, 831; People v Brooks, 70 NY2d 896, 897-898; People v Sanders, 70 NY2d 837, 838; People v Owens, 69 NY2d 585, 590-591; People v Watkins, 155 AD2d 386, 387, lv denied 76 NY2d 744), it is diflicult to perceive why they should be permitted to take a fellow juror’s transcription of the court’s recitation of those elements into the jury room. The result is the same in both instances; and thus, in my view, neither should be permissible in the absence of both sides’ consent (see, CPL 310.30; People v Owens, 69 NY2d 585, 590, supra [the consent of both sides is an "absolute precondition” (emphasis added)]).

Moreover, contrary to the majority’s assertions, the trial court’s cautionary instructions could not have alleviated the potential prejudice defendants faced as the result of what essentially amounted to the presence in the jury room of only selective portions of the court’s charge. As this Court held in People v Owens, among the dangers present in such situations is that "the written instructions [or, as we have here, their functional equivalent] may be [given undue emphasis] by their physical presence in the jury room, as the oral instructions fade from memory” (69 NY2d 585, 591, supra). As a result, the jurors may unduly focus upon those portions of the court’s charge which they have physically before them, and neglect to give comparable attention to those portions which were not transcribed. This is true regardless of whether the instructions were recorded by the Trial Judge, the court stenographer or, as is the case here, one of the jurors.

Finally, I note that the majority’s concluding observation that "[t]he court’s supplemental instruction was not simply a recitation of statutory elements * * * but an explanation of the relevant concepts” (majority mem, at 863) is somewhat perplexing. To the extent it suggests that a jury may take a list of a crime’s statutory elements into the jury room as long as the Judge explains "the relevant concepts,” it is inconsistent with both CPL 310.30 and this Court’s prior precedent (see, e.g., People v Nimmons, 72 NY2d 830, supra [relying upon CPL 310.30]; cf., People v Moore, 71 NY2d 684, 686 [permitting jurors to take part of indictment into jury room held to be harmless beyond a reasonable doubt in light of the irrefutable evidence of defendant’s guilt]).

Accordingly, I would reverse defendants’ convictions and order a new trial.

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

In each case: Order affirmed in a memorandum.

      . At most, the court’s cautionary instructions acted to lessen the potential prejudice that defendants faced if the juror’s notes were inaccurate.

      . Contrary to the majority’s contention, the fact that the jury requested the supplemental charge cannot be said to have alleviated the potential prejudice to defendants (see, CPL 310.30 [requiring both that the jury request the materials and that the parties consent]; People v Sanders, 70 NY2d 837, 838).


text:
    The People of the State of New York ex rel. Renia Allison, Appellant, v Dominic J. Mantello, as Superintendent of Wende Correctional Facility, et al., Respondents.
    Submitted December 31, 1990;
    decided February 14, 1991
   Motion for leave to appeal dismissed and, on the Court’s own motion, appeal dismissed, without costs, each upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see, People ex rel. Wilder v Markley, 26 NY2d 648; People ex rel. Dennard v Meloni, 74 NY2d 916).


text:
    Howard A. Behren, Individually and on Behalf of Washington Realty Associates, Ltd., et al., Appellants, v Neil Blumstein et al., Respondents.
    Submitted December 31, 1990;
    decided February 14, 1991
   Motion for leave to appeal as to defendant Scharpf denied; motion for leave to appeal as to the remaining defendants-respondents dismissed upon the ground that as to them the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Frank Cangro, Appellant, v Mayor of the City of New York et al., Respondents.
    Submitted December 31, 1990;
    decided February 14, 1991
   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 a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    The People of the State of New York ex rel. Richard Graham, Appellant, v Robert McClellan, as Superintendent of Southport Correctional Facility, Respondent.
    Submitted February 11, 1991;
    decided February 14, 1991
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third 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]).


text:
    The People of the State of New York, Respondent, v Anthony Liuzzo, Joseph Liuzzo, Walter Flynn and Frederick J. Landy, Appellants. Paul J. Cambria, Jr., Appellant.
    Submitted February 4, 1991;
    decided February 14, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no civil appeal lies from the order entered in this criminal proceeding.


text:
    In the Matter of Sebastian M., a Child Alleged to be Neglected. Alexandra B., Appellant; Commissioner of Social Services of the City of New York, Respondent.
    Submitted January 28, 1991;
    decided February 14, 1991
   Motion to amend this Court’s order dated December 20, 1990 denied. [See, 76 NY2d 1006.]


text:
    In the Matter of Yusuf A. Shakoor, Appellant, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Submitted February 11, 1991;
    decided February 14, 1991
   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.


text:
    The People of the State of New York, Appellant, v Isabel Llanos, Also Known as Issabel Llanos, Respondent.
    Argued January 8, 1991;
    decided February 19, 1991

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Julie Freudenheim and Norman Barclay of counsel), for appellant.

      Ira Mickenburg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On an April afternoon, police officers entered an apartment building on West 108th Street in Manhattan to execute a search warrant at apartment 14 located on the fourth floor. The People’s sole witness testified that as the officers ascended the stairs from the third to the fourth floor, they saw defendant on the fourth floor landing "peering” over the banister. Upon seeing them defendant yelled "Police, Police,” and knocked on the door of apartment 14. The officers arrested defendant immediately. After entering the apartment through the unlocked door, the officers recovered a large quantity of cocaine, 256 vials of "crack,” a gun, and assorted drug paraphernalia. Five men in the apartment were arrested, and charged, inter alia, with criminal possession of a controlled substance.

Defendant was subsequently convicted, by bench trial, of criminal facilitation in the fourth degree (Penal Law § 115.00 [1]). The Appellate Division unanimously reversed, concluding that the People failed to establish "any one of [the] elements [of criminal facilitation] as a matter of law,” that an analysis of the elements of the crime and of the cases interpretive thereof leads to the conclusion that the "statute contemplates that the facilitated crime must occur in the future, after the intervention of the facilitator.” (151 AD2d 128, 130.) The case is before us upon the People’s appeal pursuant to leave granted by a Judge of this Court. We now affirm, but on narrower grounds.

Penal Law § 115.00 (1) provides in pertinent part, "[a] person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid * * * to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony”. Essential to establishing the commission of this crime is that the facilitator render aid that provides the means or opportunity to commit the crime and does in fact aid a person in committing a felony (Penal Law § 115.00 [1]).

Here, there is no evidence that defendant’s conduct enabled the occupants of apartment 14 to possess the contraband for any period longer than they would have had defendant done nothing. Thus, it cannot be said that defendant provided the "means or opportunity” for commission of the object felony (see, People v Puig, 85 Misc 2d 228; People v Volante, 75 Misc 2d 400; People v Jennings, 98 Misc 2d 1015; see generally, 31 NY Jur 2d, Criminal Law, §§ 370-378). Nor did she in fact aid the occupants of apartment 14 in the commission of the crime of criminal possession of a controlled substance (see, People v Arcadi, 79 AD2d 845, affd 54 NY2d 981; cf., People v Streeter, 139 AD2d 786 [defendant’s receiving currency which initiated drug transaction facilitated crime]; People v Schoen, 136 Misc 2d 851, 853 [defendant’s transporting "buy” money completed drug transaction providing drug traffickers with a means or opportunity to sell narcotics]; see also, Frohlich & Newell Foods v New Sans Souci Nursing Home, 109 Misc 2d 974 [supplying false bills to nursing home operators knowing that bills would be used to obtain reimbursement from the State was tantamount to crime of criminal facilitation]).

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

Order affirmed in a memorandum.


text:
    Miguel A. Muniz, an Infant, by His Mother and Natural Guardian, Daisy Gonzales, et al., Respondents, v Flohern, Inc., Defendant, and Lefran Realty Corp. et al., Appellants.
    Argued January 10, 1991;
    decided February 19, 1991

      APPEARANCES OF COUNSEL

      Paul D. Montclare and Richard F. Guay for appellants.

      David H. Fromm, Frederick A. Polatsek and Aaron J. Broder for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendants-appellants’ motion for summary judgment dismissing the complaint as to them granted, and the certified question answered in the negative.

During an attempted robbery of a streetfront store located in a building owned by defendants, pellets from a shotgun discharged by the robber from inside the store struck the infant plaintiff, a passerby, permanently blinding him. Plaintiffs allege that the tenant of the store conducted drug-trafficking activities in the premises and that although the defendants were aware of this illegal use they made no attempt to interdict it. Thus, it is contended, they are liable for the damages sustained.

We conclude however, that under the circumstances of this case the defendants owed no duty to the infant plaintiff. Thus, no liability for the injuries can be imposed.

There was no relationship between defendants and the gunman who robbed the streetfront store of their building. Nor was there any relationship between the attempted robbery and the illicit drug activity such as to require defendants to attempt to control the conduct of either the tenant or the gunman. Moreover, there was no relationship between defendants and the infant plaintiff requiring defendants to afford protection from potential dangers springing from the tenant’s illicit drug trafficking in the streetfront store (see, Pulka v Edelman, 40 NY2d 781; see also, Waters v New York City Hous. Auth., 69 NY2d 225; Strauss v Belle Realty Co., 65 NY2d 399; Santiago v New York City Hous. Auth., 63 NY2d 761).

Nor may liability be imposed based on the provisions of Real Property Law § 231 (2). That statute renders a landlord liable "for any damage resulting from [any] unlawful use, occupancy, trade, manufacture or business” conducted on the premises (here the alleged drug trafficking). In this case, the deficiency in plaintiffs’ common-law claim alone defeats their statutory claim.

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

Order reversed, etc.


text:
    In the Matter of Paul Augello et al., Respondents, v Board of Education of the Lynbrook Union Free School District, Appellant.
    Submitted January 22, 1991;
    decided February 19, 1991
   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 a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    Briarwood Towers 85th Company, Appellant, v Gerald Guterman, Also Known as Gerald Gutterman, et al., Respondents, et al., Defendants.
    Submitted November 26, 1990;
    decided February 19, 1991
   Motion insofar as it seeks for leave to appeal from the Appellate Division order denying plaintiff’s motion for leave to appeal to the Court of Appeals dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of City of New York, Respondent, v Unsafe Building and Structure at 21 Richmond Avenue, Staten Island; Joseph Geronimo, Jr., Appellant.
    Submitted February 4, 1991;
    decided February 19, 1991
   Motion for leave to appeal dismissed upon the ground that it does not lie. Motion for reargument of motion for leave to appeal denied. [See, 76 NY2d 1016.]


text:
    Gloria Perez, as Administratrix of the Estate of George Perez, Deceased, et al., Appellants, v City of New York et al., Defendants, and George Karpay et al., Respondents.
    Submitted February 4, 1991;
    decided February 19, 1991
   Motion to dismiss appeal taken as of right granted and appeal dismissed with $400 costs and $100 costs of motion, 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.


text:
    Marie Reyes, Respondent, v Christopher A. Ball, Appellant.
    Submitted February 11, 1991;
    decided February 19, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    In the Matter of Talishia Simmons, Appellant, v Emanuel P. Popolizio, as Chairman of the New York City Housing Authority, et al., Respondents.
    Submitted January 7, 1991;
    decided February 19, 1991
   Motion to dismiss appeal denied. [See, 76 NY2d 712.]


text:
    In the Matter of Lawrence J. LaBelle.
    Decided March 21, 1991
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Lawrence J. LaBelle is suspended, with pay, effective immediately, from his office of Judge of the Saratoga City Court, Saratoga County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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 Donald Dien, Appellant.
    Argued February 12, 1991;
    decided March 21, 1991
    APPEARANCES OF COUNSEL

      Robert S. Dean and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed. Defendant’s sole argument on appeal is that a specific comment made by the prosecutor during summation violated his rights to a fair trial by an impartial jury and to equal protection under the law. At the time of the prosecutor’s statement, however, defendant made only a general objection, thus failing to preserve his argument for this Court’s review (see, People v Rivera, 73 NY2d 941, 942; People v Ford, 69 NY2d 775, 776).

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

Order affirmed in a memorandum.


text:
    AP Propane, Inc., Respondent, v James R. Sperbeck et al., Appellants. (And Another Related Action.)
    Argued February 13, 1991;
    decided March 21, 1991

      APPEARANCES OF COUNSEL

      Robert E. Ganz for appellants.

      George H. Barber and John E. Dorfman for respondent.
   OPINION OF THE COURT

Orders affirmed, with costs, for the reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (157 AD2d 27). Certified question answered in the negative.

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


text:
    The People of the State of New York, Appellant, v Steven Blount, Respondent.
    Argued February 8, 1991;
    decided March 21, 1991
    APPEARANCES OF COUNSEL

      Denis Dillon, District Attorney (Alexis Kriedman and Bruce E. Whitney of counsel), for appellant.

      Kent V. Moston, Carol Lewisohn and Matthew Muraskin for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (159 AD2d 579).

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


text:
    Board of Education of Depew Union Free School District, Respondent, v Depew Teachers Organization, Inc., Appellant.
    Submitted January 7, 1991;
    decided March 21, 1991
   Motion, insofar as it seeks leave to appeal from the Appellate Division orders that affirmed the orders of Supreme Court dated August 24, 1989 and May 30, 1990, dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion to consolidate the appeals dismissed as academic.


text:
    In the Matter of Johnson Newspaper Corporation, Appellant, v Lee Clary, Individually and as County Court Judge for the County of Jefferson, et al., Respondents.
    Submitted January 7, 1991;
    decided March 21, 1991
   Motion to dismiss appeal taken as of right granted and appeal dismissed with $400 costs and $100 costs of motion upon the ground that the issues presented are moot.


text:
    In the Matter of Emanuel S. et al., Appellants, v Joseph E. et al., Respondents.
    Submitted January 28, 1991;
    decided March 21, 1991
   Motions for leave to appeal by petitioners and by the Law Guardian granted. Motion by petitioners for interim visitation, treated as a motion for a stay of the Appellate Division order pending disposition of this appeal, denied. Motion by petitioners for a preference granted. Motion by the Law Guardian for a waiver of necessary filing fees granted. Motion by petitioners and by the Law Guardian to file typewritten briefs denied as unnecessary (see, Rules of Court of Appeals, 22 NYCRR 500.1).


text:
    Joseph Amodei, Appellant, v New York State Chiropractic Association et al., Respondents, et al., Defendants.
    Argued February 6, 1991;
    decided March 26, 1991
    APPEARANCES OF COUNSEL

      Howard S. Davis and Barry M. Hoffman for appellant.

      Barry G. Saretsky and Scott S. Greenspun for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs defamation action was properly dismissed. The words of which he complains could not reasonably have been understood as implying a false assertion of fact.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Joseph Amodei, Appellant, v New York State Chiropractic Association, Respondent.
    Argued February 6, 1991;
    decided March 26, 1991

      APPEARANCES OF COUNSEL

      Howard S. Davis and Barry M. Hoffman for appellant.

      Barry G. Saretsky and Leah C. Greenman for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner’s contention that the New York State Chiropractic Association failed to administer its rules fairly when it suspended his membership for a period of two years is merit-less. In imposing that sanction, the association, despite petitioner’s assertions to the contrary, complied, in all material respects, with its constitution and bylaws (cf., Tedeschi v Wagner Coll., 49 NY2d 652). The procedural anomalies upon which petitioner’s challenge rests do not provide, under the record before us, a sufficient basis for setting aside his suspension.

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

Order affirmed, with costs, in a memorandum.


text:
    Federal Chandros, Inc., et al., Appellants, v Silverite Construction Co., Inc., et al., Respondents, et al., Defendants.
    Submitted January 22, 1991;
    decided March 26, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Deborah Hass et al., Appellants, v Town of Orangetown, Respondent, et al., Defendants.
    Submitted January 22, 1991;
    decided March 26, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; 2103 [b] [2]; see, Kings Park Classroom Teachers Assn, v Kings Park Cent. School Dist., 63 NY2d 742).


text:
    The People of the State of New York ex rel. Edward McDuffy, Appellant, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted January 14, 1991;
    decided March 26, 1991
   Motion to dismiss appeal taken as of right granted and appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    The People of the State of New York, Respondent, v Edward Tramell, Appellant.
    Submitted January 28, 1991;
    decided March 26, 1991
   Motion for leave to appeal dismissed upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (CPLR 5601, 5602; CPL 450.90).


text:
    In the Matter of Louis J. Valente, Appellant, v Prudential Property and Casualty Insurance Company, Respondent.
    Argued February 5, 1991;
    decided March 27, 1991

      APPEARANCES OF COUNSEL

      Joseph D. Manno for appellant.

      Jonathan A. Dachs for respondent.
   OPINION OF THE COURT

Memorandum.

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

The courts below properly held that the petitioner’s recovery for pain and suffering under the supplemental uninsured motorist endorsement should be reduced by the amount of the workers’ compensation award.

The contract between the parties contains a standard clause which expressly provides for such an "offset,” and the contract has been approved by the Commissioner of Insurance. Unlike the minimum coverage mandated by law (Insurance Law § 3420 [f] [1]), supplemental coverage is optional and nothing in the statute governing this type of coverage (Insurance Law § 3420 [f] [2]) prohibits the parties from agreeing to reduce the supplemental recovery by amounts received pursuant to the workers’ compensation laws (see, Fox v Atlantic Mut. Ins. Co., 132 AD2d 17). Under these circumstances there is no basis for holding the contractual offset unenforceable with respect to the supplemental coverage although, as petitioner notes, it produces the anomalous result of permitting the insurer to avoid all payment of supplemental benefits for petitioner’s noneconomic loss, which was not covered by the workers’ compensation award, simply because the amount of that award equals or exceeds the amount sought here for pain and suffering (cf., Matter of Napolitano [MVAIC], 21 NY2d 281).

Petitioner’s argument, that such offsets should only be permitted when the insured would otherwise obtain a duplicate award, must be addressed to the Legislature, which alone has the power to proscribe contractual terms in that manner. In the absence of such a statutory restriction, the court is bound to enforce the contract as written

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

Order affirmed, with costs, in a memorandum.


text:
    Brian Bittrolff, Appellant, v Ho’s Development Corp. et al., Respondents. (And a Third-Party Action.)
    Submitted February 6, 1991;
    decided March 27, 1991

      APPEARANCES OF COUNSEL

      Dominick F. Callo for appellant.

      Stuart Newmark, Dena Jaffe and Gerald F. Collyer for Ho’s Development Corp. and others, respondents.

      Victor A. Kovner, Corporation Counsel (Ellen B. Fishman and Leonard Koerner of counsel), for City of New York, respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, a New York City firefighter, was injured when he fell through a hole in a stairwell while fighting a fire in a building owned by defendant Ho’s Development Corp. Plaintiff alleges that his injuries were caused in part by the existence of various dangerous and defective conditions in the building.

The issue on this appeal is whether liability for those conditions should extend to defendant City of New York, the former owner of the building. This appeal is from an order affirming the dismissal of the complaint and cross claims against the City.

As a general rule, liability for dangerous conditions on land does not extend to a prior owner of the premises (Pharm v Lituchy, 283 NY 130, 132). A narrow exception exists, however, and liability may be imposed where a dangerous condition existed at the time of the conveyance and the new owner has not had a reasonable time to discover the condition, if it was unknown, and to remedy the condition once it is known (id.; see also, Kilmer v White, 254 NY 64; Farragher v City of New York, 26 AD2d 494, 496, affd on opn below 21 NY2d 756).

In this case, plaintiff has offered nothing to show that the alleged defective conditions existed at the time of the City’s conveyance of the property more than nine months before the fire or that the new owner did not have adequate time to discover and remedy such defects. Thus, liability against the City cannot be sustained under this exception.

Plaintiff urges nonetheless that a further exception should be recognized where the former owner retains a sufficient degree of control over the premises. Were we to recognize such an exception, however, the present circumstances would not call for its application.

The City sold the property to Ho’s Development Corp. pursuant to a plan designed to redevelop vacant housing stock. The City had requested development proposals and accepted Ho’s offer to purchase the property for $13,000 and to rehabilitate the building to contain 13 two-bedroom condo-. miniums and two commercial units. The deed of conveyance was made subject to a simultaneously recorded land disposition agreement, which required the rehabilitation to progress according to a stated schedule and gave the City a right of access to the area to inspect the work being performed and to maintain public utilities. The agreement also required the developer to submit periodic progress reports. Both the deed and the land disposition agreement provided that in the event of the developer’s default, including its failure to comply with the schedule for commencement and completion of the work, the City would have the right to reenter and take possession of the property and to terminate and revest in the City the estate conveyed by the deed to the developer.

The right retained by the City does not justify the imposition of liability for dangerous conditions occurring on the property. The City’s retained rights were tied to the developer’s compliance with the rehabilitation plan; neither the deed, the land disposition agreement nor any statute or regulation gave the City the right or the obligation to remedy dangerous conditions. This is in contrast to the authority relied on by plaintiff, Guzman v Haven Plaza Hous. Dev. Fund Co. (69 NY2d 559), which held that a landlord who was under a statutory duty to maintain its building in a safe condition and who retained the right to enter and make necessary repairs could be charged with constructive notice of a dangerous condition and could be held liable for the failure to remedy the condition.

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

Order affirmed, with costs, in a memorandum.

       The New York City Administrative Code, which has the force of a statute in the City of New York, imposed this duty on the landlord (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 565-567).


text:
    Marilyn Star, Individually and as Executrix of Carl Star, Deceased, Appellant, v Patricia Berridge et al., Respondents, et al., Defendant.
    Decided March 27, 1991

      APPEARANCES OF COUNSEL

      Alexander J. Wulwick for appellant.

      Jeremy Heisler for Patricia Berridge, respondent.

      Patrick J. Crowe for Cameo East Meadow and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to plaintiff against defendant Berridge, by denying defendant Berridge’s motion for summary judgment and, as so modified, affirmed, with costs to the remaining defendants against plaintiff.

The record reflects a triable issue of fact concerning whether defendant Berridge actually installed a lead shield as ordered by the New York State Department of Health. The affidavit of defendant Berridge’s expert physicist was properly considered on the issue of the amount of radiation emitted into plaintiff’s decedent’s office. In light of plaintiff’s medical expert’s affidavit stating that, to a reasonable degree of medical certainty, plaintiff’s decedent’s disease was caused by the radiation that seeped through defendant Berridge’s office, however, the Appellate Division should not have granted defendant Berridge’s motion for summary judgment (see, People v Kenney, 30 NY2d 154, 157; Matter of Riehl v Town of Amherst, 308 NY 212, 216).

Summary judgment was properly granted to the remaining defendants, because, on this record, they owed no duty of care to plaintiff or her decedent. The remaining defendants set forth facts showing that they were under neither a statutory nor a contractual obligation to maintain the premises leased to Berridge. Contrary to plaintiff’s contention, Public Health Law § 3500 imposes a duty of care on operators of X-ray equipment and licensed practitioners, not on landlords. Moreover, retention by these defendants, of the right to reenter did not impose an obligation on them to maintain the premises (see, People v Scott, 26 NY2d 286, 290-291; Dick v Sunbright Steam Laundry Corp., 307 NY 422, 424; cf., Bittrolff v Ho’s Dev. Corp., 77 NY2d 896). Given that defendants were under no statutory or contractual obligation to protect plaintiff’s decedent from the risk of X-ray radiation and plaintiff failed to raise a triable issue of fact concerning defendants’ actual knowledge of hazard from X-ray exposure to persons in adjoining offices, defendants were under no duty to plaintiff or her decedent.

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


text:
    In the Matter of Charles Glinton, Appellant, v George F. Roberts, as Justice of the Supreme Court of the State of New York, New York County, Respondent.
    Submitted January 22, 1991;
    decided March 27, 1991
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601). Motion for leave to appeal denied. Motion for assignment of counsel dismissed as academic.


text:
    In the Matter of the Arbitration between Moti Namdar, Respondent, and Eli Mirzoeff, Appellant.
    Submitted March 4, 1991;
    decided March 27, 1991
   Motion for reargument of motion for leave to appeal and for amendment of this Court’s order dated February 7, 1991 denied with $100 costs and necessary reproduction disbursements. [See, 77 NY2d 802.]


text:
    The People of the State of New York, Respondent, v Daniel Felton, Appellant.
    Argued February 8, 1991;
    decided April 2, 1991

      APPEARANCES OF COUNSEL

      Kevin F Casey and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division has reversed and ordered a new trial on 30 of the 34 counts in the indictment. As conceded by the prosecutor, the Trial Judge had erred in failing to charge the jury on the corroboration requirement for accomplice testimony. The Appellate Division determined that four of the counts were firmly supported by independent evidence and that there was no basis for upsetting the verdict as to those four counts.

We agree that four counts on which defendant remains convicted, the only aspect of the case now before us, were overwhelmingly supported by independent testimonial and documentary evidence which did not require corroboration. The integrity of the verdict as to those counts and of the process leading to the verdict was not legally or prejudicially affected by the instructional error with respect to the 30 counts. We, therefore, agree with the Appellate Division that there is no sufficient basis for disturbing the judgment of conviction reflecting the jury’s verdict as to those four counts.

People v Castillo (47 NY2d 270) has no application here. In Castillo, the prosecutor deliberately interwove identification evidence regarding two separate crimes and the substantive error as to the reversed count certainly tainted the integrity of the jury’s verdict as to the remaining count. In the case now before us, by contrast, the reversal came about by reason of a conceded charge error limited to 30 counts and the Appellate Division had no occasion to consider the adequacy of the proof offered in support of those counts. Unlike Castillo, it cannot be said here that the proof relating to one set of crimes supplemented deficiencies in the proof on key elements of the other (id,., at 275). The proof of the four sustained counts, which did not require corroboration, was freestanding and wholly independent of the testimony with respect to the 30 counts that did require corroboration.

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

Order affirmed in a memorandum.


text:
    In the Matter of Village of Nissequogue, Respondent, v Suffolk County Department of Civil Service, Respondent, and Dennis McHugh et al., Appellants.
    Argued February 7, 1991;
    decided April 2, 1991

      APPEARANCES OF COUNSEL

      Lester B. Lipkind for appellants.

      E. Thomas Boyle, County Attorney (Caroline Levy of counsel), for Suffolk County Department of Civil Service, respondent.

      Eugene L. Wishod, Eugene R. Barnosky and Scott M. Karson for Village of Nissequogue, respondent.
   OPINION OF THE COURT

Memorandum.

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

Respondents McHugh and Leigh were appointed to the position of "acting police officer” by resolution of the Nissequogue Village Board in November of 1982 and July of 1984, respectively. Neither was appointed from an eligible list. In July of 1989, respondent Suffolk County Department of Civil Service refused to certify the Village payroll insofar as it authorized payment to McHugh and Leigh contending that they were illegally appointed. Petitioner Village then commenced an article 78 proceeding in which the Supreme Court annulled the Department of Civil Service’s determination on the ground that section 100 (5) of the Civil Service Law which provides that appointment should be presumed after three years’ service precluded the Department from withholding certification of the payroll.

The Appellate Division reversed holding that the appointments as "acting police officers” were not "position[s] in the classified service of a civil service division by appointment or promotion” but rather unlawfully extended temporary appointments originally made pursuant to section 64 of the Civil Service Law. We agree: Civil Service Law § 100 (5) applies only to appointments made from an eligible list after successful completion of a civil service examination.

Article V, §6 of the State Constitution requires appointments in the civil service to be made according to merit and fitness ascertained by competitive examination. This constitutional requirement is restated in section 61 of the Civil Service Law which requires all permanent appointments or promotions to be made from three persons certified as standing highest on an eligible list. Since the position of Village police officer is a competitive class position, a permanent appointment to that position must be from an eligible list. Respondents McHugh and Leigh were not appointed from an eligible list but appointed as "acting police officer” on a temporary basis pursuant to section 64 of the Civil Service Law. Accordingly, their appointments were limited by that statute to a period of three to six months and the extension of the appointments for a period of years was in violation of the Civil Service Law and contrary to the spirit of NY Constitution, article V, § 6 (see, Civil Service Law §§ 61, 64; Matter of Montero v Lum, 68 NY2d 253).

McHugh and Leigh maintain that even if their appointments were unlawful, Civil Service Law § 100 (5) applies to them and prevents the Department from refusing to certify the payroll. We have held, however, that an unlawfully extended period of temporary service cannot ripen into a permanent appointment unless the appointee met all the requirements for permanent appointment at the time of the temporary appointment (see, Matter of Montero v Lum, 68 NY2d 253, 259, supra; Matter of Board of Educ. v Nyquist, 31 NY2d 468; Matter of Hilsenrad v Miller, 284 NY 445). Respondents’ interpretation of section 100 (5) is contrary to this well-settled principle.

Furthermore, section 100 (5) of the Civil Service Law, by its own terms, applies only to employees holding a position in the classified service of a civil service division by appointment or promotion who have completed the applicable probationary period. McHugh and Leigh never completed the applicable probationary period because the probationary period could not commence until they had qualified for the position of police officer by examination and been appointed to that position from an eligible list (see, Matter of Reis v New York State Hous. Fin. Agency, 74 NY2d 724; Matter of Montero v Lum, 68 NY2d 253, supra; Civil Service Law § 63). McHugh and Leigh were appointed as . "acting police officers” by resolution of the Village Board and not from an eligible list. Thus, as temporary employees with unlawfully extended appointments who had not been appointed from an eligible list, they failed to meet the requirements of Civil Service Law § 100 (5).

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

Order affirmed, with costs, in a memorandum.


text:
    Hiram Mercado, Jr., Respondent, v Reinaldo Vega, Respondent, and City of New York, Appellant.
    Argued February 7, 1991;
    decided April 2, 1991

      APPEARANCES OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Patrick L. Taylor and Pamela Seider Dolgow of counsel), for appellant.

      Steven DiJoseph and Harry H Lipsig for Hiram Mercado, Jr., respondent.

      Lorraine Golino for Reinaldo Vega, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs to abide the event, and a new trial granted.

Defendant New York City, by this Court’s grant of leave, appeals from an order affirming a money judgment in favor of plaintiff. Plaintiff was a passenger in a civilian vehicle which crashed in The Bronx after a high-speed police chase. Plaintiff’s driver was killed and plaintiff was seriously injured. The dispositive issue among those advanced by the City is whether, under the evidentiary facts and liability theories of this case, it was entitled to its requested instruction to the jury on superseding proximate cause.

The incident and accident occurred at 3:30 a.m. on November 22, 1981. Two police officers in a marked patrol car observed and approached a car with its lights off which was cruising past a warehouse. The evidence is disputed as to what was said among the officers, plaintiff and his driver at the time of the initial police approach. After an ethnic slur claimed to have been uttered by one officer to the occupants in plaintiff’s car, plaintiff’s car suddenly and immediately sped away, in the opposite direction from the patrol car, through red lights and at speeds up to 84 miles per hour through a residential area with a 30 miles per hour speed limit. The police testified that they lost sight of the car within a minute. Within two minutes after fleeing from the police, the vehicle in which plaintiff was a passenger careened off a curve as it approached the Cross Bronx Expressway and hit a tree. The judgment, reflecting the jury’s verdict and findings against the City, was affirmed by the Appellate Division.

The issue of causation is generally resolved by the fact finder (Kriz v Schum, 75 NY2d 25; Derdiarian v Felix Contr. Corp., 51 NY2d 308). The City’s argument that the reckless conduct of the driver of plaintiff’s car was the sole, superseding cause of the accident as a matter of law is therefore unavailing on this record and under traditional review standards, and there should not be a dismissal of the complaint and action.

However, the City’s argument that it was entitled to its requested instruction on superseding causation has merit on the evidence and theories of this case. If the jury disbelieved even parts of plaintiff’s version of the events leading up to the crash, or if it gave greater credence to defendant’s evidence— or some combination of the two — then, with proper guidance on the corollary principle of law, namely, superseding causation, the jury could have concluded as a matter of fact that the defendant City was relieved of proximate and concurrent responsibility for plaintiff’s injuries because of plaintiff’s driver’s unforeseeable, separable act of sudden, highly dangerous, independently driven flight (see, Kriz v Schum, 75 NY2d 25, 35, supra; Kush v City of Buffalo, 59 NY2d 26, 33; see also, PJI 2:72, 1 NY PJI2d, at 212-215). The entire set and degree of interwoven circumstances, including .the time of the accident and its manner and nature, bring this case within entitlement to the requested instruction. The trial court’s error in this respect directly prejudiced defendant City and affected essential prongs of plaintiff’s and defendant’s theories of the case, as delivered in the over-all jury instructions. Thus, there should be a new trial.

Inasmuch as there will be further proceedings on this case, we also note our agreement with the defendant City’s argument that plaintiff’s inadequate-lighting-of-the-road predicate for imposing liability should have been dismissed as a matter of law. There was no evidence presented from which the jury could have inferred that the City had any notice of the claimed defect or that it was a proximate cause of this accident.

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

Order reversed, etc.


text:
    United States Fidelity & Guaranty Company, Appellant, v Leonard Pressler, Respondent, et al., Defendant.
    Decided April 2, 1991

      APPEARANCES OF COUNSEL

      Cary Maynard for appellant.

      Leonard Pressler, respondent pro se.

   OPINION OF THE COURT

Memorandum.

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

Contrary to the conclusion of the Appellate Division, close examination of the prolix allegations of the complaint of petitioner Pressler, and giving those allegations the benefit of every reasonable intendment, demonstrates clearly that no viable cause of action for compensatory damages is alleged.

Stripped of their verbiage those allegations assert no more than that injuries resulting from the underlying personal injury action remain uncompensated and thus should be deemed within the compass of the no-fault benefits payable under the USF&G policy.

As found by Supreme Court, however, the full $50,000 limit of no-fault benefits under USF&G’s policy has been paid and no further payments are due thereunder.

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


text:
    In the Matter of Luz Martinez, Respondent, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, Appellant, et al., Respondent.
    Decided April 2, 1991

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Lillian Z. Cohen of counsel), for appellant.

      Marc Cohan and John C. Gray, Jr., for Luz Martinez, respondent.

      Victor A. Kovner, Corporation Counsel (Ellen B. Fishman of counsel), for Harvey Robins, as Commissioner of the New York City Department of Social Services, respondent.
   OPINION OF THE COURT

Memorandum.

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

Because the parties settled petitioner’s underlying claims, petitioner is a prevailing party within the meaning of 42 USC § 1988 (Maher v Gagne, 448 US 122). Petitioner’s 42 USC § 1983 claim that respondents violated 45 CFR 205.10 (a) (4) in failing to specify the regulation authorizing the termination of benefits fully supports an award of attorneys’ fees pursuant to 42 USC § 1988.

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), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    Jacques Alexandre, Appellant, v State of New York, Respondent.
    Submitted March 25,1991;
    decided April 2, 1991
   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).

Judge Titone taking no part.


text:
    In the Matter of Florence Ellsman, a Person Alleged to be Incompetent. Marilyn Blaine, Appellant; James Rudolph, Respondent.
    Submitted February 4, 1991;
    decided April 2, 1991
   Motion for leave to appeal dismissed. Dismissal of the appeal taken as of right for lack of prosecution was a determination on the merits of all claims which could have been litigated had that appeal been timely argued or submitted (Bray v Cox, 38 NY2d 350). [See, 77 NY2d 835.]

Judge Titone taking no part.


text:
    The People of the State of New York, Appellant, v Jeremy Grant, Respondent.
    Decided April 2, 1991
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Victor Weingarten et al., Appellants, v Town of Lewisboro, Respondent.
    Argued February 13, 1991;
    decided April 4, 1991

      APPEARANCES OF COUNSEL

      Stuart R. Shamberg and Adam L. Wekstein for appellants.

      Robert M. Redis and James G. Fine for respondent.

      Robert Abrams, Attorney-General (Frederic L. Lieberman of counsel), in his statutory capacity under Executive Law § 71.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, by dismissing the complaint.

Plaintiff developers’ declaratory judgment action challenges the constitutionality of a statute and regulation allowing defendant’s Planning Board to require a $5,000 per lot recreation fee as a condition of subdivision approval. While acknowledging that some fee may be exacted, plaintiffs claim that the amount of the fee is unconstitutional because it lacks a close nexus to the legitimate governmental interest of providing recreational facilities. In that no such fee has been imposed upon any of the plaintiffs, however, their challenges are not ripe for review.

For a challenge to administrative action to be ripe, the administrative action sought to be reviewed must be final, and the anticipated harm caused by the action must be direct and immediate (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 519-520, cert denied 479 US 985; see also, de St. Aubin v Flacke, 68 NY2d 66, 75). "This rule not only prevents dissipation of judicial resources, but more importantly, it prevents devaluation of the force of judicial decrees which decide concrete disputes.” (Cuomo v Long Is. Light. Co., 71 NY2d 349, 354; see also, Williamson Planning Commn. v Hamilton Bank, 473 US 172, 185-186.)

Neither requirement is met here. While plaintiff Bayswater in fact received a final approval resolution from the Town Planning Board which imposed the challenged fee, Bayswater sought judicial review of that determination and the matter was ultimately remitted to Supreme Court with directions to remand it to the Board — where it is pending — for further determinations pursuant to Town Law § 277 (1) (Matter of Bayswater Realty & Capital Corp. v Planning Bd., 76 NY2d 460). The remaining plaintiffs are even farther from having the challenged fee imposed on them, since their applications for subdivision approval have not yet been passed upon by the Board.

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

Order modified, etc.


text:
    The People of the State of New York, Respondent, v Edwin Perez, Appellant.
    Decided April 4, 1991

      APPEARANCES OF COUNSEL

      E. Joshua Rosenkranz for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

We conclude that the trial court did not err in failing to grant defendant’s request for an expanded charge on the evaluation of the identification evidence. Although we deem it "the better practice * * * to grant a defendant’s request and give the expanded charge” when appropriate (People v Whalen, 59 NY2d 273, 279), such a charge was not required in this case. It cannot be said that this case involved a "close question of identity” (id., at 278). The evidence of defendant’s identity included the testimony of a witness that defendant confessed to the crime and proof of the victim’s personal knowledge of defendant, defendant and the victim having lived at the same residence for two years. The remaining issue, whether the trial court should have instructed the jury that defendant’s identity had to be proven beyond a reasonable doubt, is not preserved for our review (see, People v Jackson, 76 NY2d 908; People v Karabinas, 63 NY2d 871).

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:
    The People of the State of New York, Appellant, v Gregory Correa, Respondent.
    Decided April 4, 1991
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Mark Dwyer and Mary C. Farrington of counsel), for appellant.

      Pamela Peters and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Delays between indictment and the arraignment, like other court congestion, do not prevent the People from being ready for trial. Such delays are, therefore, not excludable under CPL 30.30 (see, People v Brothers, 50 NY2d 413, 417; see also, People v Toro, 151 AD2d 142, lv dismissed 75 NY2d 818; accord, People v Rhee, 111 AD2d 655; People v O’Neal, 99 AD2d 844).

The People’s contention that they are legally blocked from announcing their readiness for trial prior to arraignment because defendant might not yet be represented by counsel is unavailing. CPL 30.30 (4) (f) expressly exempts periods during which defendant is without counsel.

Similarly unpersuasive is the People’s alternative contention that it would be impractical to require them to prepare for trial prior to arraignment because the defendant could plead guilty at the arraignment. That defendant might plead guilty then or at any other time before trial should not excuse the prosecutor from taking the necessary steps to be ready for trial within the prescribed period. Accordingly, the delay between indictment and arraignment on the indictment was properly charged to the People.

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:
    In the Matter of Gumersindo P. Carrera, Appellant, v Thomas Sobol, as Commissioner of Education, Respondent.
    Decided April 4, 1991

      APPEARANCES OF COUNSEL

      Christine C. Anderson for appellant.

      Robert Abrams, Attorney-General (John J. O’Grady 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), judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (163 AD2d 706).

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


text:
    Association of Surrogates and Supreme Court Reporters within City of New York et al., Plaintiffs, v State of New York et al., Defendants.
    Decided April 4, 1991
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Chief Judge Wachtler taking no part.


text:
    The People of the State of New York, Appellant, v Irma Garcia, Respondent.
    Argued March 22, 1991;
    decided April 4, 1991
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Appellant, v Rafael Martinez, Respondent.
    Argued March 22, 1991;
    decided April 4, 1991
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    In the Matter of Nicola S. Brusco, Appellant, v New York State Division of Housing and Community Renewal, Respondent.
    Submitted April 1, 1991;
    decided April 4, 1991
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First 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 mmi

Judge Titone taking no part.


text:
    Jane Di Nezza, Appellant, v Credit Data of Hudson Valley, Inc., Respondent.
    Submitted January 28, 1991;
    decided April 4, 1991
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s September 27, 1989 order, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Titone taking no part.


text:
    The People of the State of New York ex rel. Louis Giles, Appellant, v R. Miles, as Warden of Southport Correctional Facility, Respondent.
    Submitted January 22, 1991;
    decided April 4, 1991
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3 [b]; CPLR 5602 [a]). On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie where 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.


text:
    Jeanne Jeras, as Administratrix of the Estate of Paul A. Jeras, Deceased, Appellant, v East Manufacturing Corporation et al., Defendants, and Browning-Ferris Industries, Inc., et al., Respondents. (And Two Additional Actions.)
    Submitted February 25, 1991;
    decided April 4, 1991
   Motion to dismiss appeal denied.

Judge Titone taking no part.


text:
    In the Matter of Barbara Lee, Respondent, v Abraham Biderman, as Commissioner of the City of New York Department of Housing Preservation and Development, et al., Appellants.
    Submitted March 11, 1991;
    decided April 4, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]). General Construction Law § 25-a did not here effect an extension when the time provided in CPLR 5513 expired on February 22, 1991 (see, General Construction Law § 24). Judge Titone taking no part.


text:
    Veronica K. Parks et al., Respondents-Appellants, v Theodore Hutchins et al., Defendants; Long Island Rail Road, Respondent, and City of New York, Appellant-Respondent.
    Submitted March 11, 1991;
    decided April 4, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513).

Judges Titone and Bellacosa taking no part.


text:
    Robert W. Precourt, Appellant, v Michelle A. Kyanka, Respondent.
    Submitted March 4, 1991;
    decided April 4, 1991
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).

Judge Titone taking no part.


text:
    Valerie B. Semmler et al., Respondents, v Virginia Naples, Individually and as Executrix of Esther L. Bruce, Deceased, Appellant.
    Submitted March 25, 1991;
    decided April 4, 1991
   Appeal from the Appellate Division’s November 1, 1990 order dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved. Appeals from the Appellate Division’s September 20, 1990 and November 22, 1990 orders dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the orders appealed from do not finally determine the action within the meaning of the Constitution.

Judge Titone taking no part.


text:
    Gertrude Tobjy, Respondent, v Ralph A. Tobjy, Appellant.
    Submitted January 22, 1991;
    decided April 4, 1991
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed defendant’s appeal from Supreme Court’s April 12, 1989 order, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Titone taking no part.


text:
    Vermeer Owners, Inc., et al., Appellants, v Gerald Guterman et al., Respondents, et al., Defendants. Fleur Garage Corp., Respondent, v Vermeer Garage Corp., Appellant; John Doe et al., Respondents.
    Submitted March 22, 1991;
    decided April 4, 1991
   Motion for leave to appeal by plaintiffs granted. Motion for leave to appeal by Vermeer Garage Corp. denied. Motion for a stay denied.

Judge Titone taking no part.


text:
    George Israel et al., Appellants, v John W. Matthews, Individually and as Chairman of the Nassau Democratic County Committee, et al., Respondents.
    Submitted April 8, 1991;
    decided April 10, 1991
   Motion for leave to appeal dismissed upon the ground that movants are not parties aggrieved.


text:
    In the Matter of John W. Matthews, Individually and as Chairman of the Nassau Democratic County Committee, Respondent, v Benjamin L. Zwirn, as Supervisor of the Town of North Hempstead, et al., Respondents, and William T. Biamonte, Appellant.
    Submitted April 8, 1991;
    decided April 10, 1991
   Motion for leave to appeal dismissed upon the ground that movant is not a party aggrieved.


text:
    City of New York, Respondent, v New York City Board of Elections in City of New York, Appellant. Thomas J. Manton, as Chairman of the Democratic Executive Committee of Queens County, Intervenor-Appellant.
    Submitted April 8, 1991;
    decided April 10, 1991
   On the Court’s own motion, appeal taken as of right by intervenor Mantón dismissed upon the ground that no substantial constitutional question is directly involved. Motions for leave to appeal by the Board of Elections and intervenor Mantón denied. Motion by intervenor Mantón for a stay dismissed as academic.


text:
    The People of the State of New York, Respondent, v Michael Magnano, Appellant.
    Argued March 19, 1991;
    decided April 25, 1991

      APPEARANCES OF COUNSEL

      Gary Greenwald for appellant.

      Edward J. Kuriansky, Deputy Attorney-General (Donald H. Zuckerman and Arthur G. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (158 AD2d 979).

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


text:
    In the Matter of Rego Park Nursing Home, Appellant, v State of New York, Department of Health/Bureau of Residential Health Care Facility Reimbursement et al., Respondents.
    Argued March 26, 1991;
    decided April 25, 1991

      APPEARANCES OF COUNSEL

      Morris Tuchman for appellant.

      Robert Abrams, Attorney-General (Robert R. Reed and O. Peter Sherwood of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the réasons stated in the memorandum at the Appellate Division (160 AD2d 923).

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


text:
    In the Matter of Owen S. Mudge.
    Decided April 25, 1991
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Owen S. Mudge is suspended, with pay, effective immediately, from his office of Town Justice of Town of Coeymans and Village Justice of Village of Ravena, Albany County, pursuant to New York State 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.


text:
    520 East 81st Street Associates, Appellant-Respondent, v Lenox Hill Hospital, Respondent-Appellant, et al., Defendants.
    Argued February 12, 1991;
    decided April 25, 1991

      APPEARANCES OF COUNSEL

      Jeffrey Glekel, Gary M. Rosenberg, Jeffrey Turkel, Albert J. Boro, Jr. and Daniel L. Ackman for appellant-respondent.

      Edward S. Kornreich, Edmund F. Wolk, Steven E. Obus,

      Beth-Ann Ellenberg and Stephen A. Wieder for respondent-appellant.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and John McConnell of counsel), in his statutory capacity under Executive Law § 71.

      Carol S. Keenan, Ronald A. Zumbrun, Edward J. Connor, Jr. and R. S. Radford for Pacific Legal Foundation, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced this action for a declaratory judgment to obtain relief from its obligation to offer a renewal lease to defendant Lenox Hill Hospital, the existing tenant of record, on the ground that Lenox Hill was not occupying the subject rent-stabilized apartment units as "primary residences,” but rather was subletting the units to its employees (see, L 1983, ch 403, § 41, amending Administrative Code of City of New York § YY51-3.0, renum § 26-504). In support of its position, plaintiff argued, among other things, that a statute enacted in 1984 specifically authorizing not-for-profit hospitals such as Lenox Hill to sublet their rent-stabilized apartments to employees and "affiliates” (see, L 1984, ch 940, § 1, amending Administrative Code § YY51-3.0 [a] [1] [f], renum §26-504 [a] [1] [fj; see also, McKinney’s Uncons Laws of NY § 8625 [a] [11]; § 8630-a [h] [Emergency Tenant Protection Act of 1974, L 1974, ch 576, § 4 as amended]) could not constitutionally be construed to require plaintiff to offer Lenox Hill renewal leases indefinitely. Relying on Seawall Assocs. v City of New York (74 NY2d 92) and the majority opinion in Hall v City of Santa Barbara (833 F2d 1270, cert denied 485 US 940), plaintiff argued that such a significant impairment of its rights to possess and to exclude others from its property would violate the Fifth Amendment prohibition against governmental taking of private property without just compensation (see, US Const 5th, 14th Amends).

We have held, however, that when an owner seeks to deny a tenant the right to a renewal lease on the ground that the apartment unit is not occupied as the tenant’s primary residence, the owner must adhere to the procedure set forth in former section 54 (E) of the Rent Stabilization Code (9 NYCRR 2524.4 [c]) (Crow v 83rd St. Assocs., 68 NY2d 796; Golub v Frank, 65 NY2d 900). That procedure requires that the owner give the tenant notice of its intention not to offer a renewal lease not more than 150 days and not less than 120 days prior to the expiration of the existing lease term (Rent Stabilization Code former § 60 [9 NYCRR 2524.2 (c) (2)]). Where such notice is not timely given, the defendant is entitled to a renewal lease by operation of former sections 50 (9 NYCRR 2524.1) and 54 (E) of the code.

Inasmuch as plaintiff concededly did not give Lenox Hill the requisite notice, Lenox Hill is entitled to a renewal lease for each of the subject apartments. This conclusion is not affected by either the fact that plaintiff has asserted its claim in the form of an action for declaratory relief (see, 615 Co. v Mikeska, 75 NY2d 987) or the fact that plaintiff has invoked the Takings Clause of the Fifth Amendment to support its nonprimary residency argument. Since the gist of plaintiff’s claim is that it should not be obliged to offer Lenox Hill a renewal lease because of Lenox Hill’s alleged failure to use the subject apartments as "primary residence,” the procedural rules set forth in former section 54 (E) of the Rent Stabilization Code must be observed.

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

Order reversed, with costs, the order and judgment of Supreme Court, New York County, reinstated, and the certified question answered in the negative, in a memorandum.


text:
    The People of the State of New York, Respondent, v Reynaldo Arroyo, Also Known as Reynardo Arroyo, Appellant.
    Argued March 21, 1991;
    decided April 25, 1991

      APPEARANCES OF COUNSEL

      Mark Gimpel and E. Joshua Rosenkranz for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

While defendant now urges that the trial court committed reversible error in precluding him from calling his mother as a witness to corroborate certain details of his account of the night of the robbery, his offer of proof was insufficient to alert the trial court to the relevance of the testimony. For that reason, the trial court’s exclusion of the witness was not reversible error. Defendant’s remaining arguments, to the extent preserved, are without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Toby Williams, Appellant.
    Argued March 19, 1991;
    decided April 25, 1991

      APPEARANCES OF COUNSEL

      Ronald Podolsky for appellant.

      Charles J Hynes, District Attorney (Pamela L. Milgrim and Jay Cohen of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (160 AD2d 754).

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


text:
    In the Matter of Transit Casualty Company. Alan Digirol, Appellant; Superintendent of Insurance, as Ancillary Receiver of Transit Casualty Company, Respondent.
    Submitted February 25, 1991;
    decided April 25, 1991
   Motion for leave to appeal denied upon the ground that an appeal lies as of right. Cross motion to dismiss the appeal taken as of right denied.


text:
    George Israel et al., Petitioners, v John W. Matthews, Individually and as Chairman of the Nassau Democratic County Committee, Respondent, and Benjamin L. Zwirn, as Supervisor of the Town of North Hempstead, Appellant, et al., Defendants.
    Submitted April 22, 1991;
    decided April 25, 1991
   Motion for leave to appeal dismissed upon the ground that movant is not a party aggrieved. Cross motion to vacate statutory stay granted; cross motion otherwise denied.

Chief Judge Wachtler taking no part.


text:
    In the Matter of Michael Jackson.
    Decided April 30, 1991
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Michael Jackson is suspended, with pay, effective immediately from his office of Town Justice of the Town of Pierrepont, St. Lawrence County, 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.


text:
    In the Matter of Brynhildur Thorgeirsdottir, Petitioner, v New York City Loft Board, Appellant, and 126 Front Street Realty Co., Intervenor-Respondent. (And Three Additional Titles.)
    Argued March 20, 1991;
    decided April 30, 1991

      APPEARANCES OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Trudi Mara Schleifer and Ellen B. Fishman of counsel), for appellant.
    Respondents precluded.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (161 AD2d 337).

Concur: Judges Simons, Titone, Hancock, Jr., and Bellacosa. Chief Judge Wachtler and Judges Kaye and Alexander dissent and vote to reverse for the reasons stated in the dissenting memorandum of Justice Israel Rubin at the Appellate Division (161 AD2d 337, 340).


text:
    The People of the State of New York, Respondent, v Michael E. Galle, Appellant.
    Argued March 22, 1991;
    decided April 30, 1991

      APPEARANCES OF COUNSEL

      Ronald C. Valentine, Public Defender (Arthur B. Williams of counsel), for appellant.

      Valerie Friedlander and Stephen R. Sirkin, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of criminally negligent homicide (Penal Law § 125.10), based upon his having twice injected his girlfriend with cocaine on the night she died from a drug overdose. On appeal, he contends that his conviction should be reversed and the indictment against him dismissed on the ground that the evidence introduced at his trial was legally insufficient to support the jury’s guilty verdict. We cannot agree.

The proof adduced at trial demonstrated that, on the night in question, defendant injected the decedent with her first two doses of cocaine, knowing full well that she planned to continue taking injections that evening until their relatively substantial supply of that drug had been exhausted. Although the decedent subsequently administered her own injections, including the one which immediately preceded her death, an expert witness called by the People testified that each of the injections, including the two given to the decedent by defendant, was a contributing cause of her death.

Viewing this evidence in a light most favorable to the People (see, People v Bleakley, 69 NY2d 490, 495; People v Contes, 60 NY2d 620, 621), we conclude that the jury could have reasonably found that defendant’s actions were a "sufficiently direct cause” of death to subject him to criminal liability (People v Warner-Lambert Co., 51 NY2d 295, 307; People v Kibbe, 35 NY2d 407, 412; see, Matter of Anthony M., 63 NY2d 270, 280-281; People v Cruciani, 36 NY2d 304; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 497-498). Contrary to defendant’s contention, the "ultimate harm” here was something which he should have, under the circumstances, plainly "foreseen as being reasonably related to [his] acts” (People v Kibbe, 35 NY2d 407, 412, supra; see, Matter of Anthony M., 63 NY2d 270, 280-281, supra; People v Warner-Lambert Co., 51 NY2d 295, supra; People v Stewart, 40 NY2d 692, 697).

We likewise disagree with defendant’s assertion that the People failed to prove, as a matter of law, that he acted with criminal negligence. Viewing the evidence, as we must, in a light most favorable to the prosecution, we conclude that the jury could have rationally found that defendant, by intravenously administering cocaine to the decedent when he knew that she intended to continue taking injections of that drug throughout the night, had created "a substantial and unjustifiable risk” that his actions would contribute to her death, and that this "risk [was] of such nature and degree that [defendant’s] failure to perceive it constitute^] a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law § 15.05 [4]; § 125.10; see, People v Boutin, 75 NY2d 692; People v Ricardo B., 73 NY2d 228, 235-236; People v Haney, 30 NY2d 328; see also, People v Cruciani, 36 NY2d 304, supra).

We have examined defendant’s remaining contentions and find them to be without merit.

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

Order affirmed in a memorandum.

       Defendant was also convicted of criminal injection of a narcotic drug (Penal Law § 220.46).


text:
    In the Matter of Anthony Asaro et al., Appellants, v City of New York, Respondent.
    Submitted March 4, 1991;
    decided April 30, 1991
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s February 9, 1990 order, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Appellant, v John Doe, Respondent.
    Submitted March 25, 1991;
    decided April 30, 1991
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the order sought to be appealed.


text:
    In the Matter of Denise England, Appellant, v Commissioner of Education of the State of New York et al., Respondents.
    Submitted March 11, 1991;
    decided April 30, 1991
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as confirmed the Commissioner of Education’s June 13, 1989 determination, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Reinaldo Richards, Appellant.
    Argued March 22, 1991;
    decided May 2, 1991

      APPEARANCES OF COUNSEL

      Daniel E. Rosen, Leslie Crary and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Margaret E. Mainusch and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (157 AD2d 753).

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


text:
    In the Matter of Stewart Park and Reserve Coalition et al., Appellants, v New York State Department of Transportation, Respondent.
    Argued March 27, 1991;
    decided May 2, 1991

      APPEARANCES OF COUNSEL

      Michael S. Elder for appellants.

      Robert Abrams, Attorney-General (Michael J. Moore, O. Peter Sherwood, Peter H. Schiff and Douglas H. Ward of counsel), for respondent.

      Henry L. Diamond and Christopher W. Mahoney for Palisades Interstate Park Commission, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (157 AD2d 1).

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


text:
    Ruth Flores, Respondent, v Primo Flores, Appellant.
    Submitted March 18, 1991;
    decided May 2, 1991
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York ex rel. Barry Wilt, Appellant, v Andrew P. Meloni, as Monroe County Sheriff, et al., Respondents.
    Submitted March 25, 1991;
    decided May 2, 1991
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see, People ex rel. Wilder v Markley, 26 NY2d 648; People ex rel. Dennard v Meloni, 74 NY2d 916.)