text:
    Wayne Lampiasi, an Infant, by Alice Lampiasi, His Mother, Appellant, v St. Vincent’s Hospital and Medical Center of New York, Respondent.
    Argued October 16, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      Nathaniel M. Swergold for appellant.

      Mary Ann D’Amato for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Harold Birns at the Appellate Division (71 AD2d 203).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Fordin Tas, Appellant. The People of the State of New York, Respondent, v Lorenzo Jones, Appellant.
    Argued October 14, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      W. Dennis Duggan for Fordin Tas, appellant.

      Paul M. Collins for Lorenza Jones, appellant.

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

The trial court was correct in denying defendants’ motion to preclude evidence relating to the victim’s identification of the defendants as his assailants on the ground that the People had failed to give notice to defense counsel prior to its use. (See CPL 710.30.) As the Appellate Division noted, the victim and the defendants were inmates in the same tier of cells for a period prior to the attack of at least one month and, although the victim may not have known their particular names, he was familiar with the defendants as individuals. Since the participants in the incident —the victim and the perpetrators — were known to each other, there was no “identification” within the meaning of CPL 710.30 (People v Gissendanner, 48 NY2d 543, 552) and no prior notice need have been given by the People.

It was also proper for the trial court, under the circumstances present here, to admit evidence of a previous assault by defendants against another prisoner as to the issue of consent by the complaining witness and force used against him. By raising the question whether the complainant consented to the acts of sodomy, the defense put in issue the aspect of force as an element of the crime charged. (See Penal Law, § 130.50.) In establishing lack of consent, the People properly could introduce evidence which was probative of the victim’s state of mind at the time of the attack. (See People v Yannucci, 283 NY 546, 549-550; cf. People v Miller, 39 NY2d 543; see, generally, People v Santarelli, 49 NY2d 241; Richardson, Evidence [10th ed], § 170.) Testimony concerning the prior assault on another prisoner in the victim’s presence which occurred just minutes before the attack on the victim and was participated in by both defendants, was admissible as it was highly relevant in establishing the victim’s fear and, thus, force as an element of the crime charged. Similarly, when defense counsel sought to impeach the victim’s testimony by contending that the other victimized prisoner had failed to report the assault visited upon him, evidence consisting of the other victim’s hospital records and photographs depicting the injuries sustained by him arising from the assault by the defendants properly was admitted in order to establish the forcible nature of the crime charged in this case.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

In each case: Order affirmed in a memorandum.


text:
    In the Matter of Edward J. McLaughlin, Appellant, v Peter A. A. Berle, as Commissioner of the New York State Department of Environmental Conservation, Respondent.
    Argued October 16, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      Susan C. Antos for appellant.

      Robert Abrams, Attorney-General (Lew A. Millenbach and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 707).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Richard Milerson, Appellant.
    Argued October 10, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      Bennett M. Epstein for appellant.

      Carl A. Vergari, District Attorney (Gerald D. Reilly and Anthony J. Servino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Although the police did not have probable cause to compel defendant to accompany them to the police station or to detain him once he arrived there, we cannot say that the search of defendant’s automobile at the police station was improper. The trial court found that the police possessed sufficient ground to detain and question the passenger who had been riding in the backseat of defendant’s car, and we perceive no reason to disturb this affirmed finding. The passenger’s admission to the police that he had left an attaché case containing additional forged prescriptions on the rear seat of the car furnished the predicate for the police to return to the car and search it in order to retrieve the case. The authority of the police to search the car, however, did not come to an end when they located and seized the case, since the passenger’s admission formed reasonable ground to believe that he had secreted additional, undisclosed evidence or contraband somewhere in the car.

Nor is the propriety of the warrantless search undermined because the police waited until they returned to the police station before conducting a full-scale search rather than conducting such a search at the scene of the arrest. The authority of the police to search an automobile usually arises when there is probable cause to believe that it contains weapons, contraband or evidence, and there is ordinarily no requirement that the police delay their search until they obtain a warrant, even where the vehicle has been reduced to their control (Chambers v Maroney, 399 US 42; see United States v Chadwick, 433 US 1, 12; cf. Coolidge v New Hampshire, 403 US 443; see, generally, Ringel, Searches & Seizures, Arrests and Confessions, § 11.1). Inasmuch as the search of defendant’s vehicle was not improper, there was no legitimate basis for suppressing the gun found during the search.

Finally, we note that the People have not appealed from that portion of the Appellate Division order which affirmed the decision of the trial court to suppress admissions made by defendant and the evidence obtained directly from defendant while he was being detained at the police station. Accordingly, we have no occasion to consider whether that evidence was properly suppressed. .

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for Public School No. 223. Myron Nelkin, Respondent. In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for Stage II Urban Renewal Project. Myron Nelkin, Respondent.
    Argued October 14, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Gary Schuller and Leonard Olarsch of counsel), for appellant.

      M. Robert Goldstein for respondent.
   OPINION OF THE COURT

"Memorandum.

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

Public School No. 223 parcel: The factual determinations made by Supreme Court with respect to use of this parcel for a governmentally financed apartment house as the highest and best use, with respect to change of zoning and tax abatement, and with respect to governmental financing, together with the agreed land valuation, having been affirmed at the Appellate Division, are now beyond the scope of our review, there being evidentiary support therefor in the record. Based on these factual predicates and in view of the positions taken by the parties on trial, we cannot say that there was error of law in the method of valuation chosen or in the application of that method. While normally the fact that the rezoning had not actually been accomplished would call for at least some discount (see dissenting opn of Mr. Justice Leon D. Lazer at the Appellate Division, 71 AD2d, p 1021), in this instance no proof was offered as to what that discount should be in the relevant market conditions. Accordingly, we see no sufficient reason to disturb the determination made by both courts below as to the value of this parcel.

Urban Renewal parcel: No notice of appeal from the partial final decree of Supreme Court dated June 24, 1976 having been filed, it was not error for the Appellate Division to have dismissed the appeal sought to be taken from that decree.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    John J. Mullen, Appellant, v Sibley, Lindsay & Curr Company et al., Respondents.
    Argued October 15, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      Samuel G. Brundage for appellant.

      Thomas C. Burke and Jeffrey M. Wilkens for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs to abide the event, and the case remitted to Supreme Court for a new trial..

We cannot conclude that the evidence in this case was sufficient, as a matter of law, to establish that the security-guard had probable cause to arrest appellant. According to appellant’s story, which might have been credited by the jury, after he had placed the box.containing the tie rack in his shopping bag without paying for it and headed for a door to the street, he was holding an inner vestibule door open, facing inward when accosted by the security guard. He immediately admitted that he had not paid for the tie rack, stated that he was about to pay for it, and proceeded directly to the cash-wrap counter where, after he had tendered a $20 bill, he was arrested. In these circumstances the jury could have found that the security officer did not have “reasonable grounds to believe that [appellant] was committing or attempting to commit larceny on such premises” (General Business Law, § 218). Nor was the evidence insufficient as a matter of law to support the jury’s verdict on the assault and battery cause of action. It was therefore error for the Appellate Division to have dismissed the complaint.

Inasmuch as the Appellate Division reversed, on the law and facts, the case must be remitted to Supreme Court, Monroe County, for a new trial on all four causes of action.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    Salvatore Giambrone et al, Respondents, v Pan American Airways, Appellant.
    Argued October 16, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      James J. Sentner, Jr., for appellant.

      Thomas R. Newman and Ignatius John Melito for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (74 AD2d 789).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Burlton T. Hyde, by Helen M. Hyde, His Parent and Natural Guardian, et al., Respondents, v County of Rensselaer, Appellant, and Niagara Mohawk Power Corp., Respondent, et al., Defendant.
    Argued October 14, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      James M. Conboy and Dennis A. First for appellant.

      Carroll J. Mealey, Robert.H. Iseman and Michael T. Wallender for plaintiffs-respondents.

      Arthur L. Rosen and E. Stewart Jones for defendant-respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, who was seriously injured in an automobile accident, alleges, among other things, that the cause of his injuries was the negligence of the county in that it allowed rotten delineator posts to become covered with foliage and hidden from view along the highway. There was testimony from which a jury could conclude that the delineator posts served no useful purpose, but instead constituted a hazard to passing motorists. In fact, various occupants of the automobile testified that as it left the roadway, it became entangled in the posts and connecting fence, which caused the car to be propelled down the embankment.

On this appeal, the defendant County of Rensselaer argues that the trial court erred in allowing proof that a prior accident had occurred at the same place as this accident, without requiring a showing that the relevant conditions of the two accidents were the same. Further, defendant argues that the trial court erred in dismissing as a matter of law all claims against Niagara Mohawk.

It is well settled that proof of a prior accident, whether offered as proof of the existence of a dangerous condition or as proof of notice thereof, is admissible only upon a showing that the 1 ¿levant conditions of the subject accident and the previous one were substantially the same. However, testimony was permitted during the trial over defendant’s objection, from a New York State trooper that he had been present at the scene of another accident at the same location in 1973, at which time he observed its physical condition. The trial court concluded that this evidence was admissible to show the condition of the road shoulder and delineator posts on the issue of constructive notice. To the extent that the defendant believed the testimony impermissibly introduced details of the prior accident, its obligation was to request limiting instructions (C.K.S. Inc. v Borgenicht Sportswear, 25 AD2d 218; PJI 1:65). This it did not do.

Moreover, while we cannot, as did the Appellate Division, characterize this testimony as “entirely proper”, we decline to hold that its introduction is cause for reversal. A Trial Judge necessarily is vested with broad discretion to determine the materiality and relevance of proposed evidence, and we cannot say as a matter of law on these facts that here this discretion was abused, or that there was such prejudice as to call for a reversal.

Finally, we agree that the trial court properly dismissed all claims against Niagara Mohawk. Although liability may result from the placement of utility poles in such a position that they constitute an unreasonable danger to highway travelers, the utility pole in question, under the existing road conditions, was sufficiently distant from the lane of travel to support the determination, as a matter of law, that it was not a hazard or a proximate cause of plaintiff’s injuries.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v August Minori, Appellant.
    Argued October 16, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (Aley Z. Alexander of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The affirmed finding that defendant’s room was not exclusively within his control is supported by sufficient evidence in the record and is therefore beyond our review (cf. People v Alexander, 37 NY2d 202). The contention that the defendant’s brother-in-law had no authority over the defendant’s room was not raised at the hearing and, having not been preserved, may not be considered on this appeal (cf. People v Tutt, 38 NY2d 1011).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum:


text:
    Joan B. Bernstein, Appellant, v Birch Wathen School, Respondent.
    Argued October 10, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      Robert L. Ellis for appellant.

      Leonard R. Berson for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Joseph P. Sullivan at the Appellate Division (71 AD2d 129).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Appellant, v Ronald Shealy, Respondent.
    Argued October 10, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney (Anthony J. Serrino of counsel), for appellant.

      Daniel J. Pykett for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed.

Having pleaded that defendant entered or remained with intent to commit the crime of sexual abuse, the People were obligated to prove just that (People r Barnes, 50 NY2d 375, 379, n 3). There was here, however, sufficient evidence for the trier of fact to conclude that such was the defendant’s intent: in the fact that defendant’s body was atop that of the victim for several minutes, that his forearm was across her breast, that he pulled the bedclothes off her nude body, that he gagged her with one item of clothing and then removed that gag and sought to substitute another. Some of those factors do not necessarily bespeak such an intent and could be attributable to an effort to silence the victim after she awoke and discovered his presence. But clearly not all can be so regarded (silencing neither necessitated removal of the bedclothing nor substitution of the gag) and they lend sufficient color to the others that it cannot be said that a prima facie case of intent to commit sexual abuse was not made out.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed in a memorandum and the case remitted to the Appellate Division, Second Department, for consideration of the facts (CPL 470.25, subd 2, par [d] ; 470.40, subd 2, par [b]).


text:
    In the Matter of the Estate of Bernard P. Birnbaum, Deceased, Respondent, v Yankee Whaler, Inc., Appellant.
    Argued October 14, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      Robert M. Cohen and James L. Lalime for appellant.

      Charles G. Moerdler, Burton N. Lipshie, Robert Oppenheimer and Thomas G. Collins for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 708).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of the Arbitration between John W. Cowper Company, Incorporated, Respondent, and Hires-Turner Glass Company et al., Appellants.
    Argued October 15, 1980;
    decided November 13, 1980

      APPEARANCES OF COUNSEL

      John F. Lawton for appellants.

      James W. Gresens and Frank T. Gaglione for respondent.
   OPINION OF THE COURT

Memorandum.

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

While we agree with the result reached by the majority at the Appellate Division, we do so on a somewhat different basis. We conclude that the reference in paragraph 24 of the contract between The John W. Cowper Company and Hires-Turner Glass Company to “the general conditions of the general contract” is simply an exclusion from the arbitration clause of the Cowper-Hires-Turner contract and not an incorporation of the arbitration provision of the general contract between Cowper and the owner, Clintstone Properties, Inc. Paragraphs 3 and 23 of the Cowper-Hires-Turner contract do incorporate by reference, but, for the reasons stated in Matter of Fidelity & Deposit Co. of Md. v Parsons & Whittemore Contrs. Corp. (48 NY2d 127) and Matter of Perkins & Will Partnership (Syska & Hennessy) (41 NY2d 1045), those paragraphs do not constitute an agreement by Hires-Turner to arbitration under the Cowper-Clintstone contract provision. Rather, the effect of paragraphs 3 and 23 when considered in the light of our holdings in the cited cases was simply to bind Hires-Turner by the results reached in any arbitration between Cowper and Clintstone, provided only that Hires-Turner by being vouched in (see Glens Falls Ins. Co. v Wood, 8 NY2d 409) was given the opportunity to present its position to the arbitrators.

Cowper’s contract with Hires-Turner does, however, contain in paragraph 24 language requiring arbitration between them concerning “interpretation of this agreement or * * * any matters arising under this agreement”. While that provision expressly did not apply to any “claim, dispute or matter * * * covered by insurance, unless the insurance carrier consents in writing to such arbitration and agrees to be bound thereby”, the burden is upon Hires-Turner in this stay proceeding to establish that Cowper’s claim for indemnification from Hires-Turner for such damages as Cowper may be required to pay Clintstone is covered by insurance (Matter of MVAIC [Cuevas], 38 AD2d 813, app den 30 NY2d 485; Matter of Hanavan [MVAIC], 33 AD2d 1100; Aetna Ins. Co. v Logue, 68 Misc 2d 841). This, however, it has failed to do. The insurance policy presented covers the policy period July 1,1973 to July 1,1976, whereas the contract between Cowper and Hires-Turner was to begin March 1, 1971 and be completed October 1, 1971, and there is nothing in the petition or accompanying affidavits to establish that the work done by Hires-Turner under that contract is in fact within the coverage of that policy.

Since Cowper is, therefore, entitled to proceed with arbitration of its indemnification claim against Hires-Turner and is obligated also to arbitrate the underlying issues with Clintstone, the Appellate Division’s order consolidating the two proceedings was within its discretion (Matter of Vigo S. S. Corp. [Marship Corp. of Monrovia], 26 NY2d 157; County of Sullivan v Edward, L. Nezelek, Inc., 42 NY2d 123).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    The People of the State of New York ex rel. Robert Burke, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted October 20, 1980;
    decided November 13, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the relator has been released on parole and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    Golbar Properties, Inc., et al., Plaintiffs, and Citibank, N. A., Respondent, v North American Mortgage Investors et al., Appellants, et al., Defendants.
    Submitted October 27, 1980;
    decided November 13, 1980
   Motion to dismiss the appeals denied. Motion for leave to cross appeal granted. Motion to vacate stay granted and stay vacated effective December 8, 1980, without prejudice to defendants obtaining an automatic stay pursuant to CPLR 5519 (subd [a], par 2).


text:
    Inland Credit Corporation, Respondent, v Inspiration Enterprises, Inc., et al., Appellants.
    Submitted October 27, 1980;
    decided November 13, 1980
   Motion for reargument of motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. [See 51 NY2d 705, 796.]

Chief Judge Cooke taking no part.


text:
    Peekskill Suburbs, Inc., Appellant, v Muriel H. Morabito et al., Constituting the Town Board of the Town of Cortlandt, et al., Respondents.
    Argued October 6, 1980;
    decided November 18, 1980

      APPEARANCES OF COUNSEL

      George Palmer Frooks and Everett Frooks for appellant.

      Frank J. Ryan and Richard A. De Lorenzo for respondent.
   OPINION OF THE COURT

Memorandum.

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

On this record, it cannot be said that petitioner has established a legal infirmity in the denial of the change of zoning. Nor can we conclude that the refusal to grant the change is confiscatory, especially since the property is the subject of nonconforming uses which were not alleged or shown to be without economic value.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


author: Meyer, J.

text:
    Corrine Jones, as Intended Administratrix of the Estate of Robert M. Jones, Deceased, Appellant, v State of New York, Respondent.
    (Claim No. 59466.)
    Argued September 9, 1980;
    decided October 23, 1980

      APPEARANCES OF COUNSEL

      Emilio Nunez and Edgar T. Schleider for appellant.

      Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (69 AD2d 936). We note, however, that, as conceded by the Assistant Attorney-General on argument, the claim was dismissed only as to the cause of action for wrongful death.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli and Jones. Judge Meyer dissents and votes to reverse in an opinion in which Judges Wachtler and Fuchsberg concur.

Meyer, J.

(dissenting). Because the State received notice of the cause of action against it in the form of a claim served upon it by the “intended Administratrix” 13 days earlier than the governing statute indicated it should be, persons whom the State intended to benefit by waiving its sovereign immunity and permitting actions to be brought against it in the Court of Claims are being deprived of all recompense. Since I agree with Lee Loevinger, former Associate Justice of the Minnesota Supreme Court, that “The law, in its most general sense, represents society’s effort to be rational in controlling the relations among men” (Loevinger, Dogmatism and Skepticism in Law, 38 Minn L Rev 191, 212 [and, I would add, between men and their governments] ), since I cannot conceive that the Legislature meant so readily to take away with one hand what it was giving with the other, and since the formalism which underlies the precedents on which the majority’s ruling is based no longer guides the law, I respectfully dissent.

The claim made was for personal injury to and the wrongful death of Robert M. Jones, age 19, who was assaulted and stabbed on April 22, 1975 by a former patient at Bronx State Hospital of known vicious propensities, who, it is claimed, was released prematurely. Robert Jones died on April 23, 1975, survived by his mother, father and three brothers. The claim as served and filed on July 16, 1975 was captioned “Corrine Jones, individually and as intended Administratrix of the Estate of Robert Michael Jones, deceased.” Corrine Jones, Robert’s mother, was not appointed administratrix, however, until July 29, 1975.

Service and filing were acknowledged by both the clerk of the Court of Claims and the Attorney-General’s office by letters noting that the claim was being filed “subject to whatever legal objections may apply thereto.” The claim was not again filed and served after July 29,1975, nor was any motion made by the Attorney-General’s office until the case was called for trial on September 19, 1977, although a demand for particulars was made in July, 1976 and was answered.

Having played possum until the time for reservice of the claim by the officially appointed administratrix had passed (compare Code of Professional Responsibility, EC 7-14), the office of the Attorney-General moved at the opening of the trial to dismiss for lack of jurisdiction. The motion to dismiss was countered by a cross motion to amend the. claim as filed by striking the word “intended”. The Court of Claims, “satisfied that the defendant has been properly and timely advised of claimant’s cause,” denied the State’s motion to dismiss and, acting pursuant to the power granted by subdivision 8 of section 9 of the Court of Claims Act to amend and correct any process or claim, granted the motion to amend. The Appellate Division, concluding that “Section 10 of the Court of Claims Act is a jurisdictional prerequisite to maintaining an action in the Court of Claims,” reversed and dismissed. While there clearly was precedent for the Appellate Division’s ruling, I conclude that that precedent was egregiously wrong and should now be overruled by us.

Section 10 of the Court of Claims Act precedes its various subdivisions with the proscription that “No judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim.” The direction that judgment not be entered is not jurisdictional in concept. By itself, therefore, section 10 does not establish a jurisdictional condition precedent. The jurisdiction of the Court of Claims is, however, delimited in section 9 of the act which provides that “The court shall have jurisdiction * * * 2. To hear and determine a claim of any person, corporation or municipality against the state * * * for the torts of its officers or employees * * * providing the claimant complies with the limitations of this article.” Thus, only to the extent that the subdivisions of section 10 impose “limitations” on the right of action can it be said that the Legislature established as a jurisdictional condition precedent that a claim filed by the person who is thereafter in fact appointed personal representative of the decedent is, because prematurely filed, outside the court’s power to consider. Examination of the pertinent subdivisions of section 10 makes clear that the Legislature had no such intent.

If we turn first to subdivision 2 and consider it by itself, we find that it provides: “A claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state, by which the decedent’s death was caused, shall be filed within ninety days after the appointment of such executor or administrator unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after the death of the decedent. In any event such claim shall be filed within two years after the death of the decedent.” The only inescapable requirements of that subdivision are, first, that a claim be made, second, that it be made by an executor or administrator, and third, that it be made within 90 days after appointment of the executor or administrator but in any event within two years after the date of death of decedent. The only suggestion in the language of the section that the Legislature placed any significance on the order in which those three steps occurred is the word “after”, but clearly a claim filed prior to the appointment of the personal representative has, in relation to the only event of significance to the State — decedent’s death — been filed “within ninety days after” such appointment (cf. Matter of Johnson v State of New York, 49 AD2d 136).

Moreover, the logic of what the Legislature sought to accomplish by the 90-day provision suggests that it did not regard service before appointment as talismanic. In requiring the filing of a claim for wrongful death by “an executor or administrator” the Legislature, aware that some time would be required to obtain such an appointment, made the filing requirement run from the time of appointment rather than, as for other personal injury claims (see subds 3, 3-a), “within ninety days after the accrual of such claim.” Thus, in providing that a death claim could be filed within 90 days after appointment of the personal representative the Legislature sought to extend to the beneficiaries of a death claim extra gradee, not to impose upon them an additional, and jurisdictional, condition precedent to the making of a claim.

The conclusion that the Legislature did not conceive the order of filing and appointment to be jurisdictional is reinforced by what was subdivision 5 (now subd 6) of section 10. More will be said hereafter about the first sentence of the subdivision; for the moment I consider only the significance of the first sentence of the subdivision in relation to its next to last. Those two sentences, as they read when Robert M. Jones was assaulted, provided:

“A claimant who fails to file a claim or notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing the notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time within two years after the accrual thereof, or in the case of a claim for wrongful death within two years after the decedent’s death.
* * *
“No such application shall be granted if the court shall find that the state has been substantially prejudiced by the failure of the claimant to file such notice of intention within the time limited therefor.”

Those sentences show that the Legislature could not have considered anything so lacking in significance as the order of filing and appointment to be jurisdictional, for their language is broad enough to endow the court with discretion (for the exercise of which it had to have jurisdiction) to ignore the failure to file a notice of intention, provided only that the claim be filed within two years of the date of death, the criterion for exercise of discretion being simply whether the State had been prejudiced. Against that grant of discretion it is little short of ludicrous to suggest that the Legislature intended to defeat the claim of decedent’s survivors when the State has had full (indeed, extra) notice and opportunity to investigate and makes no claim of prejudice (preferring instead to hide behind the rule that prejudice need not be shown in the absence of jurisdiction) .

It can, perhaps be argued that the grant of discretion referred to should not be taken as evidence of legislative intent in the context of the present case because it speaks only to the failure to file and not to the situation of the present case, i.e., a filing which is a “nullity”, not followed by a further filing, after the incapacity was removed, within two years after death. The contention would be that because the subdivision does not include any language concerning relation back (compare CPLR 203, subd [e])or permitting amendment in order to validate the “invalid” claim on the same discretionary factors that authorize the filing of a late claim there is no authority to act in the circumstances of the present case. The short answer, in my view, is subdivision 8 of section 9 of the act (part of the Legislature’s explication of the court’s jurisdiction), empowering it “to vacate, amend, correct, or modify any process, claim, order or judgment, in furtherance of justice for any error in form or substance” (emphasis supplied). Short of ritualistic incantations about “jurisdiction” and “nullity” concepts, as to which more is said below, it seems clear when sections 9 and 10 are read together that the Legislature never conceived that a claim such as plaintiff’s would be barred on jurisdictional or any other grounds.

What has so far been said makes evident that based on any reasonable assessment of what the Legislature intended viewed in terms of what it did, it did not conceive of the appointment of a personal representative as jurisdictional. What has happened rather, as not infrequently happens when prior judicial concepts are overturned by legislative action, is that the scope of the change has been judicially restricted by importing into it other prior judicial concepts of which the Legislature, it is said, must be deemed to have been aware. Here two such concepts are at work, of “nullity” and of “jurisdiction”. The Legislature did not intend to give the Court of Claims “jurisdiction” in a case such as this, it is said, because it called for the filing of a claim by an executor or administrator, a representative who has no authority to act until he is appointed officially, whose acts are, therefore, a “nullity”, and cannot be rectified because a nunc pro tunc order cannot retroactively establish as a fact that which did not exist at the earlier date (Smith v New York Cent. R. R. Co., 183 App Div 478, 480-481). The answer is that we have recognized in Nuernberger v State of New York (41 NY2d 111, 117) “the elastic and versatile definition and use of the term ‘jurisdiction’ ”, and in George v Mt. Sinai Hosp. (47 NY2d 170, 176, 177) and Caffaro v Trayna (35 NY2d 245, 249, n 1) have refused to let the “nullity” of an action and the necessity of resorting to legal fiction, respectively, stand in the way of litigation of a claim that would otherwise be lost,, stating in Caffaro (at p 251) that “only unfairness to defendant or inescapable statutory mandate should foreclose assertion of” a wrongful death claim. There being neither unfairness, nor, as above demonstrated, inescapable statutory mandate in the present case, we should abandon our myopic concentration on concepts not within any demonstrable legislative purpose and hold the order of the Court of Claims amending the caption and denying the motion to dismiss valid and proper.

The more so is this the case when our prior contrary holdings have resulted in substantial reluctance by courts below to follow the precedents (Lurie v State of New York, 73 AD2d 1006 [filing with Attorney-General but not with the clerk held jurisdictional]; Matter of Welch v State of New York, 71 AD2d 494 [omission to file notice of intention with the clerk, although it was filed with the Attorney-General and the claim was filed with both the clerk and the Attorney-General held jurisdictional]; Matter of Johnson v State of New York, 49 AD2d 136 [filing of notice of intention before appointment of administratrix followed by filing of claim by administratrix more than 90 days after appointment but within two years of death held not jurisdictional] ; see, also, Blauvelt v State of New York, 160 Misc 319, 321 [Ackerson, J., dissenting], affd 250 App Div 834; Gonzalez v State of New York, 69 Misc 2d 432; Shaw v Fairyland at Harvey’s, 45 Misc 2d 493, affd on other grounds 26 AD2d 576). To that reluctance may be added the fact that our most recent cases on the subject are distinguishable, - though at least one, relatively recent one, is not. In Smith v State of New York (41 NY2d 1063), relied on by the Appellate Division, we held that a claim filed by a parent within the two-year period, limited letters not, however, having been granted to her until after the two-year period expired, was jurisdictionally defective because (at p 1065) “A'claim for wrongful death against the State can only be filed by a proper representative of the decedent, and the statute requires that the claim be filed within two years after the death of the decedent.” Similar reasoning governed the results in Ratka v St. Francis Hosp. (44 NY2d 604, 611) and Goldberg v Camp Mikan-Recro (42 NY2d 1029, 1030). The present case differs from Smith in that plaintiff was appointed administratrix within the two-year period, indeed, within 13 days after the claim was served and filed.

The case which cannot be distinguished is Lewis v State of New York (25 NY2d 881, affg 26 AD2d 878), decided by us in July, 1969. There decedent died on August 22, 1962, claimant filed her claim on November 17, 1962 but was not appointed administratrix until January 17, 1963. At trial in April, 1965 claimant moved at the close of her case to conform the pleadings to her proof and the State moved to dismiss for lack of jurisdiction. The Appellate Division reversed the Court of Claims judgment in favor of claimant. Before us the State argued that there was a jurisdictional defect which could not be cured after the expiration of two years from decedent’s death by conforming the pleadings. Departure from such prior precedents is, as I noted dissenting in Matter of Higby v Mahoney (48 NY2d 15, 25), “not only authorized but required when the court is ‘satisfied, in the first place that they were wrongly decided, and in the second place, that less mischief will result from their overthrow than from their perpetuation’ (Black, The Law of Judicial Precedents [1912 ed], p 10)”; see Matter of Eckart (39 NY2d 493, 498-499). As Judge Fuld, as he then was, put it in Bing v Thunig (2 NY2d 656, 667), when “adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it” (accord Moragne v State Mar. Lines, 398 US 375, 405). The more so is that true when, as here, the unjustified rule is a judicial gloss on statutory language.

There exists a further reason for reversal of the Appellate Division’s order. As already noted, by the time this case came on for trial in 1977 the first sentence of subdivision 6 of . section 10 had been amended to authorize a Court of Claims Judge in the exercise of discretion to permit a claimant who had failed to file a claim or notice of intention within two years after decedent’s death “to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.” As we held in Caffaro v Trayna (35 NY2d 245, 250, supra), the combination of EPTL 11-3.3 (subd [b], par [2]) and CPLR 203 is sufficient to permit a personal representative who has brought a survival action to amend his complaint in an action against a defendent other than the State to include a cause of action for wrongful death of a decedent who died while the personal injury action was pending, notwithstanding that the motion for such amendment was made more than two years after decedent’s death. Moreover, in George v Mt. Sinai Hosp. (47 NY2d 170, supra) we recognized that an action against a defendant other than the State for personal injury brought by one not yet appointed administratrix was not a nullity and, therefore, authorized the administratrix after appointment to bring a new action after dismissal of her improperly brought action. Thus the present action so far as it seeks damages for personal injuries could, were it not against the State, be brought within six months after dismissal even though more than two years after date of death, and could, the original pleading having given notice of the occurrence on which the wrongful death claim is predicated, be amended to include the latter claim. That being so, I would uphold the order of the Court of Claims Judge allowing amendment, as properly within the discretion conferred upon him by the present language of subdivision 6.

For the foregoing reasons, the order of the Appellate Division should be reversed and that of the Court of Claims should be reinstated.

Order affirmed, etc.

      . In lawyer’s Latin “Forma non observata, infertur adnullatio actus” — where the form is not observed, nullity of the act is inferred.

      . The present provision (subd 6) even more clearly shows the order of filing and appointment not to be jurisdictional. As amended in 1976, that subdivision’s first and last sentence read:
      “A claimant who fails to file a claim or notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state which would be barred under the provisions of article two of the civil practice law and rules.
      “In determining whether to permit the filing of a claim pursuant to this subdivision, the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file a timely claim or notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.”
      The present provision thus broadens the factors on which discretion is to be exercised, provided only that filing be within the period a like claim could be filed against a citizen: whether the State had notice and an opportunity to investigate, whether the claim is meritorious, whether the State has been prejudiced, whether the claimant has any other available remedy. That EPTL 5-4.1 fixed the period a like claim could be filed against a citizen as “within two years after the decedent’s death” is without significance in the present context. The point is not that subdivision 6 lengthened the time for filing a death claim, but that it establishes the factors the Legislature deems significant in relation to jurisdiction.

      . (Cardozo, Growth of the Law, at p 66: “Judges march at times to pitiless conclusion under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, none the less, with averted gaze, convinced as they plunge the knife that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the alter of regularity.”)

      . I recognize that CPLR 203 (subd [e]) speaks of an amended pleading and EPTL 11-3.3 (subd [b], par [2]) contemplates death after action brought whereas here decedent died before the original claim, but would hold that claim to be an “original pleading” within the meaning of CPLR 203 (subd [e]) notwithstanding its claimed “nullity” and death to have occurred “before verdict, report or decision” within the meaning of the EPTL provision, the “limitation” in each case not being designed as such, but rather being intended by the Legislature to expand the right to bring a wrongful death action.


text:
    Chrysler Corporation, Respondent, v Fedders Corporation, Appellant.
    Argued October 9, 1980;
    decided November 18, 1980

      APPEARANCES OF COUNSEL

      Lawrence N. Weiss and John B. Sherman for appellant.

      Robert Ehrenbard, William C. Heck, Paul F. Doyle and Harold J. Weissler for respondent.
   OPINION OF THE COURT

Memorandum.

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

As partial payment for Chrysler’s sale to it of the assets of Chrysler’s former Airtemp Division, appellant Fedders transferred all of its Series B preferred stock to Chrysler. Fedders’s certificate of incorporation requires that it pay dividends on its Series B stock ratably with any dividends paid to Series A preferred shareholders. Because Fedders has paid dividends on the Series A shares since the sale, it has incurred an obligation to pay Chrysler dividends on the Series B shares.

Fedders’s various counterclaims and affirmative defenses, essentially alleging that Chrysler overstated the value of the Airtemp assets, do not provide a basis for eliminating Fedders’s duty to pay the Series B dividends. The contract between the parties contained terms contemplating possible misstatements of the true value of the assets and contained extensive provisions for remedies. If the assets’ value is found to have been overstated, Fedders’s remedy is one for damages under the contract and not an avoidance of the independent obligation to pay dividends on the Series B shares.

Finally, the courts below did not abuse their discretion in refusing to grant a stay of enforcement of the summary judgment for Chrysler on the dividend issue.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Waghtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Claim of Jose A. Robles, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Submitted October 10, 1980;
    decided November 18, 1980

      APPEARANCES OF COUNSEL

      Henry Zelman and Louis B. York for appellant.

      Robert Abrams, Attorney-General (Paul S. Shemin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The record contains substantial evidence to support the finding that claimant’s employment was terminated for misconduct. We note that, contrary to claimant’s contention, misconduct remains a statutory ground which renders an employee ineligible for unemployment benefits (Labor Law, § 593), and was not affected by cases limiting the provoked discharge doctrine (e.g., Matter of De Grego [Levine], 39 NY2d 180, 184; Matter of James [Levine], 34 NY2d 491).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Claim of Larry Ziecker, an Infant, by Orville Ziecker, His Father, et al., Respondents, v Town of Orchard Park et al., Appellants, et al., Defendant.
    Argued October 6, 1980;
    decided November 18, 1980

      APPEARANCES OF COUNSEL

      John F. Canale for appellants.

      Robert B. Nichols and Paul William Beltz for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Matter of Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v William Sostre, Appellant.
    Argued October 13, 1980;
    decided November 18, 1980

      APPEARANCES OF COUNSEL

      Robert S. Dean and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Wentworth E. Miller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We cannot say as a matter of law that defendant should have been permitted to introduce hearsay evidence of certain exculpatory statements he made at the scene of the crime. The trial court refused to receive these statements as “spontaneous” or “excited” utterances, and the Appellate Division agreed with this ruling, noting that the statements had been made approximately five minutes after defendant had been shot by the victim and at a time when defendant had had an adequate opportunity to reflect upon his situation (see People v Edwards, 47 NY2d 493, 496-499; People v Caviness, 38 NY2d 227, 231-232; Richardson, Evidence [10th ed — Prince], § 281). The other grounds now advanced for admissibility, that the statements were admissible as evidence of defendant’s existing state of mind or as a verbal act, not having been raised in the trial court are not preserved for our review. Moreover, there was no error of law in the trial court’s refusal to receive the challenged hearsay testimony in evidence.

We note that upon oral argument defendant abandoned his contention that the trial court’s instructions to the jury had impermissibly shifted the burden of proof on the question of his criminal intent and acknowledged that he failed properly to assert the argument through a timely objection to the instruction. Accordingly, we have no occasion to consider whether the instruction in question was improper under the recent ruling of the Supreme Court in Sandstrom v Montana (442 US 510; see People v Thomas, 50 NY2d 467).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    Pan American World Airways, Inc., Respondent-Appellant, v Overseas Raleigh Manufacturing, Ltd., Appellant-Respondent.
    Argued October 16, 1980;
    decided November 18, 1980

      APPEARANCES OF COUNSEL

      Jacob Oliner and John L. Conners for respondent-appellant.

      Samuel Gottlieb, Milton Shalleck and Shelley L. Wallace for appellant-respondent.
   OPINION OF THE COURT

Memorandum.

On cross appeals, the resettled order of the Appellate Division should be modified to dismiss the defendant’s second and third counterclaims in their entirety and to vacate the stay of the execution of the judgment granted to the plaintiff, and it is otherwise affirmed, with costs to the plaintiff. Accordingly, the question certified is answered in the negative.

The second counterclaim, for breach of contract, alleges the defendant shipper was damaged by plaintiff carrier’s breach of an agreement to transport the goods on one aircraft and on one waybill and to hang them in special containers. The third counterclaim in essence casts the same charge in a negligence pleading mold. It is a complete and dispositive answer to each of these counterclaims that no written notice of claim was presented by the defendant within the time limitations called for by rule 23 B of the tariffs plaintiff, as an air carrier, was required to file pursuant to Federal law (see Federal Aviation Act of 1958, US Code, tit 49, § 1301 et seq). Constituting the written contract of carriage under a regulatory scheme in which Congress has pre-empted this field (Crosby & Co. v Compagnie Nationale Air France, 76 Misc 2d 990, affd 42 AD2d 1050, cert den 416 US 986; Lichten v Eastern Airlines, 189 F2d 939, 941), the tariffs are binding upon shipper and carrier, regardless of the shipper’s lack of actual knowledge of their provisions (see Butler’s Shoe Corp. v Pan Amer. World Airways, 514 F2d 1283; Tishman & Lipp v Delta Air Lines, 275 F Supp 471, affd 413 F2d 1401).

Similar legal considerations, aptly articulated in so much of the Appellate Division’s memorandum as dismisses the first counterclaim and upholds Special Term’s grant of summary judgment on the plaintiff’s affirmative cause of action, compel us to support those determinations.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs to plaintiff, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.


text:
    In the Matter of Douglaston Civic Association, Inc., et al., Appellants, v Joseph B. Klein et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents. Samuel Mindel, Intervenor-Respondent.
    Argued October 16, 1980;
    decided November 18, 1980

      APPEARANCES OF COUNSEL

      Julius Feigenbaum for appellants.

      Allen G. Schwartz, Corporation Counsel (Maureen F. Brennan and Ronald E. Sternberg of counsel), for respondents.

      Joseph P. Morsellino for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The board found and the evidence sustains the finding that the land cannot yield a reasonable return as zoned, the cost of constructing residences being more than three times the potential sales price; that the grant of a variance permitting use for a period of 15 years as enclosed tennis courts would not change or impair the character of the adjacent properties or significantly affect traffic or pollution; and that the owner’s difficulty arises from the swampy nature of his property. Thus, the essentials for the granting of a variance (see Matter of Otto v Steinhilber, 282 NY 71, 76) have been met, unless the fact that other property within this residential district also is swampy requires, as appellant argues and the dissenters below agreed, a holding that the requisite uniqueness cannot be found and the owner’s only relief must be in a declaratory judgment action or by a change in zoning.

Uniqueness does not require that only the parcel of land in question and none other be affected by the condition which creates the hardship (Beatrice Block Club Assn. v Facen, 40 Mich App 372, 380-382; see Matter of Jayne Estates v Raynor, 22 NY2d 417, 425; 2 Anderson, New York Zoning Law and Practice 33, § 18.24; 3 Rathkopf, Law of Zoning and Planning, p 38-15, § 38.02). What is required is that the hardship condition be not so generally applicable throughout the district as to require the conclusion that if all parcels similarly situated are granted variances the zoning of the district would be materially changed. What is involved, therefore, is a comparison between the entire district and the similarly situated land. Though there are other swampy parcels in the area we cannot say on this record either that as a matter of law the board could not find uniqueness or that in making the finding it did it acted arbitrarily or capriciously. The more so is this true in view of the confiscatory nature of the present zoning in relation to the subject parcel and the time limit imposed by the board on the variance it granted.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg. and Meyer concur.

Order affirmed, with costs, in a memorandum.

       “These unique physical conditions result in practical difficulty and unnecessary hardship to the owner, which are not due to circumstances created generally by the strict application of the provisions of the Zoning Resolution in the district in which the subject property is located.”


text:
    In the Matter of Yonkers Gardens Company, Appellant, v State of New York Division of Housing and Community Renewal et al., Respondents.
    Argued October 15, 1980;
    decided November 18, 1980

      APPEARANCES OF COUNSEL

      William A. Zutt for appellant.

      Martin A. Shlufman and Harold Zucker for respondents.

      Gary M. Rosenberg for Apartment House Council of Long Island Builders Institute, amicus curiae.

   OPINION OF THE COURT

Memorandum.

Determination appealed from and order of the Appellate Division brought up for review affirmed, with costs. Petitioner failed to raise before the Division of Housing and Community Renewal the issues he now argues on appeal. These arguments concerning the receipts included in petitioner’s income by the division for purposes of computing a hardship rental increase under the Emergency Tenant Protection Act of 1974 (L 1974, ch 576), and the division’s calculation of such an increase, may not be raised for the first time before the courts in an article 78 proceeding (see Matter of Tipon v Appeals Bd. of Dept. of Motor Vehicles, 52 AD2d 1065; Matter of Lewis v Village Bd. of Trustees of Vil. of Scotia, 48 AD2d 952; cf. Matter of Levine v New York State Liq. Auth., 23 NY2d 863).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum; Judge Meyer taking no part.

Determination affirmed, etc.


text:
    In the Matter of Garden Towers Co., Appellant, v New York State Division of Housing and Community Renewal et al., Respondents.
    Argued October 15, 1980;
    decided November 18, 1980

      APPEARANCES OF COUNSEL

      William A. Zutt for appellant.

      Martin A. Shlufman and Harold Zucker for respondents.
   OPINION OF THE COURT

Memorandum.

Determination appealed from and order of the Appellate Division brought up for review affirmed, with costs. Petitioner’s operation was conducted on a cash basis as distinguished from an accrual basis method of accounting. In view of this circumstance the determination of the Division of Housing and Community Renewal, which was based in part upon the inclusion of certain 1975 rental rollback recoveries in petitioner’s 1976 income, may not be said to be arbitrary and capricious, or, indeed, an abuse of discretion.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum; Judge Meyer taking no part.

Determination affirmed, etc.


text:
    Walter Knieriemen, Appellant, v Bache Halsey Stuart Shields Incorporated, Respondent.
    Submitted November 3, 1980;
    decided November 18, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that it does not lie by leave of the Appellate Division. (CPLR 5601, subd [c] ; 5602, subd [b], par 1.)


text:
    In the Matter of the Arbitration between Llewellyn P. Young, Appellant, and Administrator of the Fund for Participating Pledgors of F. I. du Pont, Glore Forgan & Co., Respondent.
    Submitted October 27, 1980;
    decided November 18, 1980
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the supporting papers, including brief, were not served at least eight days prior to the October 27, 1980 statutory return date of the motion (CPLR 5516; 2214; 22 NYCRR 500.9; Community School Bd. Dist. 6, Manhattan v Anker, 49 NY2d 997).


text:
    In the Matter of Honeoye Central School District et al., Respondents, v Peter A. A. Berle, as Commissioner of Environmental Conservation of the State of New York, et al., Appellants. In the Matter of Town of Canadice et al., Respondents, v New York State Department of Environmental Conservation et al., Appellants.
    Argued October 13, 1980;
    decided November 20, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter G. Crary, Shirley Adelson Siegel, Jeremiah Jochnowitz and James A.

      Sevinsky of counsel), for Peter A. A. Berle and others, appellants.

      Louis N. Kash, Corporation Counsel (Susan L. Hauser of counsel), for City of Rochester and others, appellants.

      Robert G. Harvey and John B. Hood, for Honeoye Central School District and another, respondents.

      David M. Levy for Town of Canadice, respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed, with costs, basically for the reasons stated in the opinion of Mr. Justice Stewart F. Hancock, Jr. (72 AD2d 25). We point out, as did the Appellate Division, that the statutory exemption scheme and history of section 480-a of the Real Property Tax Law (as amd by L 1976, ch 526, and L 1979, ch 683) amply demonstrates that it was designed to benefit private forest landowners engaged in or about to engage in commercial timber crop production. Additionally, article 4 of the Real Property Tax Law, the exemption article, is comprised of title 1 — “Public Property”, and title 2 — “Private Property” (L 1958, ch 959); section 480-a appears in the latter. We note only that the memorandum attributed to a cosponsor of the 1979 amending legislation (L 1979, ch 683) was actually submitted in support of an earlier version of the bill that was not passed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Orders affirmed, with costs, in a memorandum.


text:
    In the Matter of Richard A. Rainka, Appellant, v Robert P. Whalen, as Commissioner of the Department of Health of the State of New York, Respondent.
    Argued October 17, 1980;
    decided November 20, 1980

      APPEARANCES OF COUNSEL

      Richard H. Weiner and Terence J. Devine for appellant.

      Robert Abrams, Attorney-General (William J. Kogan and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 731).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Brunswick Hospital Center, Inc., Respondent, v October 1979 Grand Jury, Respondent, and Charles J. Hynes, as Deputy Attorney-General and Special Prosecutor in Charge of Hospital, Nursing Home and Adult Care Center Investigations, Appellant.
    Decided November 20, 1980

      APPEARANCES OF COUNSEL

      Charles J. Hynes, Deputy Attorney-General (Arthur G. Weinstein of counsel), appellant pro se.

      Gordon J. Lang for respondent.
   OPINION OF THE COURT

Order reversed, without costs, and matter remitted to the Appellate Division, Second Department, for reconsideration in the light of Matter of McGinley v Hynes (51 NY2d 116). We note, however, that this disposition is without prejudice to either party, if so advised, proceeding in timely fashion, pursuant to either CPLR 5601 or 5602, with respect to the order of the Appellate Division entered after reconsideration.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Margaret A. Felt, Appellant, v Scott Olson, Defendant, and Elizabeth C. Olson, as Executrix of Conrad W. Olson, Deceased, Respondent.
    Argued October 7, 1980;
    decided November 20, 1980

      APPEARANCES OF COUNSEL

      John L. Goodell for appellant.

      Ronald J. Gibb for respondent.
   OPINION OF THE COURT

Memorandum.

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

Especially since here the maker and the payee were already deceased at the time of the trial (see Schechter v Klanfer, 28 NY2d 228), on the record made here whether the notes were signed by Conrad Olson, whether he received consideration for their execution and delivery, and whether they had been paid were questions of fact.

So too was it for the Judge at nisi prius, as the trier of the facts in this non jury case, to decide what weight, if any, was to be accorded to the opinion expressed by plaintiff’s handwriting expert (see, generally, Matter of Sylvestri, 44 NY2d 260, 266; Richardson, Evidence, § 367). Although he received it in evidence, he was not bound to credit it. In deciding whether to do so or not, it would be unrealistic to expect that, as a fact finder, he would not be influenced in the exercise of his judgment by the general experience and education that in the course of his life had shaped him as a person. In the case of a Trial Judge that will almost always have included impressions that he had garnered in the course of presiding over trials. It goes without saying that does not mean that personal knowledge of a probative fact under consideration may be used to decide a case. But the reference by the trial court to expert opinions to which the Judge had been exposed in the past need not be taken as more than a candid unveiling of some of the inner thoughts that, perhaps unavoidably, ran through his mind as he pondered the factual questions he had to determine. It does not compel the conclusion that it was a declaration that he was applying an erroneous legal standard. This view is reinforced by the very language in which, in weighing the handwriting evidence, in the end he goes no further than to talk of “difficulty” on this score and then proceeds with an analysis based on the assumption that the handwriting testimony had sufficed to make out a prima facie case. (See, generally, 9 Wigmore, Evidence [3d ed], § 2570.)

In any event, the Trial Judge’s factual determinations having successfully survived scrutiny by the Appellate Division, empowered as that court is to pass on the facts as well as the law, they now are beyond our review (CPLR 5501, subd [b]).

Meyer, J.

(dissenting). Though CPLR 4536 expressly provides the “Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the handwriting of the person claimed to have made the disputed writing shall be permitted” (italics supplied), the Trial Judge rejected the testimony of plaintiff’s expert because he had tried other cases in which the experts had testified that signatures cannot be compared and that only a handwriting sample containing a sufficient number of words and letters in normal script can be used for comparison. In doing so he did not make a factual determination that the signature exemplar was not Conrad Olson’s handwriting or that plaintiff’s expert’s opinion should not be credited for a reason going to its weight, rather than to the kind of exemplar used. Indeed, his statement that “It is difficult to find herein proof of a prima facie case,” on which the majority relies, shows that he rejected the expert’s testimony not on credibility but on an incorrect legal standard. This was egregious error of law for it not only flouted the statutory direction, but also deprived plaintiff of any possibility of cross-examining the experts from other cases on whose testimony the Judge relied.

Proof of Conrad Olson’s signature went to both execution of the notes sued on and Olson’s receipt of consideration for them since the expert testified that not only Olson’s signature on the notes but also his indorsement on two checks for $5,000 each drawn by Frank Felt to Olson’s order were genuine. No defense of payment was interposed by the estate and no finding with respect to payment was made by either court below. Nor was delivery an issue, the notes having been in Frank Felt’s possession at the time of Conrad Olson’s death and he having caused this action to be instituted on the notes. Plaintiff executrix would, therefore, be entitled to judgment on the notes if the expert’s testimony were accepted by the trier of fact. It having been rejected on erroneous legal grounds, rather than on a factual basis, there should be a reversal and a new trial.

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

Order affirmed.


author: Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Terrence J. Le Mieux, Appellant.
    Argued October 13, 1980;
    decided November 20, 1980

      APPEARANCES OF COUNSEL

      Samuel James Civiletto for appellant.

      Russell D. Coogan, District Attorney (Shavasp Hanesian of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The defendant in this perjury prosecution made a timely written request that the trial court charge the jury as follows : “You are instructed that in a prosecution for perjury the falsity of the alleged statement of defendant that he met Tut Robinson on East Falls Street may not be established by the uncorroborated testimony of a single witness. Before you can convict the defendant it must appear from the evidence, beyond a reasonable doubt, that the statement of the defendant as to the East Falls Street meeting was false, by the testimony of two witnesses, or from the testimony of one witness and strong corroborative proof”. It is not disputed that this language, though not a precise paraphrase of the applicable corroboration statute (CPL 210.50), was a sufficiently faithful rendition of the law to require that the jury be instructed substantially to this effect. By this submission, the written form of which in this case lessened the possibility of judicial oversight, defendant must be “deemed to have thereby protested the court’s ultimate * * * failure to * * * instruct” sufficiently “to raise a question of law * * * regardless of whether any actual protest thereto was registered” (CPL 470.05). Therefore, no additional or literal “exception” was required to preserve the point.

Moreover, while defendant’s counsel did not include the corroboration request in the course of his enumeration during the very brief postcharge colloquy, this exchange with the court was precipitated by counsel’s unqualified reiteration of his desire that all “previously requested” requests be charged. Taken as a whole, without more, this hardly demonstrated a clear intent to waive a position already preserved with respect to a request on which the verdict could very well have turned.

Since it cannot, therefore, be said that the omission of the charge was harmless error, the order of the Appellate Division should be modified by reversing the judgment of conviction on the seventh count of the indictment and remitting the case to the Supreme Court, Niagara County, for a new trial on that count.

Gabrielli, J.

(dissenting). I must respectfully dissent, for I cannot agree that defendant was entitled to a reversal of his conviction on the present record.

I do not take issue with the majority’s implicit conclusion that the corroboration requirement in CPL 210.50 was applicable to the instant prosecution for perjury. Nor do I dispute that defendant took adequate steps to preserve “a question of law” (CPL 470.05), at least in the technical sense, when he submitted a written request for an instruction that would inform the jury of the necessity for corroborative evidence pursuant to that statute. As the majority correctly notes, the request was by itself sufficient to raise an issue that is cognizable in our court under the limited review powers conferred upon us by CPL 470.35 (subd 1), and no further exception or renewal of the request was necessary.

Our inquiry, however, may not end with this conclusion, for once we have determined that we have the power to consider a particular legal issue in accordance with CPL 470.05 and CPL 470.35 (subd 1), it obviously remains for us to determine whether the issue in question constitutes an adequate ground for disturbing the order appealed from. It is in connection with the latter determination that we must ask ourselves whether a realistic reading of the record indicates that an otherwise properly raised legal objection was explicitly and voluntarily abandoned by the defendant (cf. People v Michael, 48 NY2d 1, 7, n 2). And, if such was the case, we ordinarily may not consider the issue in question as a ground for reversal, since to do so would be to ignore the procedural course which the parties have charted for themselves at trial.

Having considered the record in this case with an eye toward the practical realities of the trial setting, I must conclude that the request for an instruction, upon which the majority bases its reversal, was indeed voluntarily abandoned by the defendant before the jury retired to deliberate. Accordingly, I would affirm the conviction on the theory that the Trial Judge had no sound basis for including in his charge an instruction which he quite reasonably believed was no longer desired by the defendant.

Prior to the submission of the charge to the jury, defendant submitted a written list of eight specific instructions which he wished to have read to that body. Request No. 6 contained the language describing the corroboration requirement of CPL 210.50 as quoted by the majority. Admittedly, the trial court’s charge to the jury, which comprised some 56 pages in the printed transcript, did not include a reference to the requested instruction, although reference was made to another pertinent provision of the Criminal Procedure Law which requires corroboration of the existence of a crime when there has been a confession (CPL 60.50). Thus, had nothing further been said, defendant would have been entitled to rely upon the omission as a ground for reversal on appeal.

There was, however, a further discussion between defense counsel and the court concerning the adequacy of the charge. Immediately after the body of the court’s instructions were given, the following colloquy ensued:

“the court : * * * Do you have any exceptions, Mr. Civiletto [defense counsel] ?
“hr. civiletto: Your Honor, I request that the Court charge the jury as I previously requested of the Court in my written requests.
“the court : I thought I had meticulously done that. If you will give them to me by number, I will give you a ruling. Do you have a copy?
“mr. giviletto: Yes, Your honor. ■
“the court : Do you have an extra copy for the Court Reporter? If not, I will have the Court Reporter — I will mark my copy. My copy will be marked as a Court Exhibit. What number are you concerned about?
“MR. giviletto : Number four.
“the court : That is denied because the Court has already charged that in substance.
“MR. giviletto : Number five, Your Honor.
“the court: That is denied. The Court has already charged that.
“MR. giviletto : That was all, Your Honor.”

Given the length and complexity of the court’s original charge, which involved some seven specific counts of perjury, it was reasonable for the court to have asked defense counsel to clarify the points he wished to be added. Indeed, the Trial Judge was evidently somewhat surprised that defense counsel was dissatisfied, since he genuinely believed that he had “meticulously” complied with all of defendant’s requests. Of course, defense counsel could have responded to the trial court’s inquiry by simply resting upon his written requests and indicating that he was not satisfied that all of the requested information had been placed before the jury. Had he done so, the Trial Judge would at least have been alerted to the need to review his prepared charge to ascertain whether it in fact contained each of the eight requested instructions, including the one involving the need for corroborative proof to support the perjury charge. Defense counsel, however, stated quite specifically and unequivocally that he was interested only in having request Nos. 4 and 5 added to the jury charge. When asked whether he had any additional requests, defense counsel plainly responded in the negative, stating: “That was all, Your Honor”.

In my view, any fair reading of the above-quoted colloquy would have to lead to the conclusion that defense counsel had abandoned his request Nos. 1, 2, 3, 7 and, most importantly, his request No. 6, in which he cited the provision of the Criminal Procedure Law requiring corroboration for a conviction of the crime of perjury. Although we cannot probe into defense counsel’s mind at the time the colloquy took place, I think it is more than reasonable to infer that his reassertion of request Nos. 4 and 5 to the exclusion of all of the others was not an inadvertent slip, but rather was a conscious choice representing a tactical decision that had been made by the defense. While the strategic purpose to be served by such a decision remains somewhat unclear, I do not believe that we should permit defense counsel to undo this strategic choice on an appeal from the conviction. Having informed the trial court that he was satisfied by the jury instructions except insofar as his request Nos. 4 and 5 were omitted, defendant should not now be heard to complain that the instructions were faulty due to the omission of request No. 6.

Accordingly, I dissent from the position adopted by the majority and cast my vote to affirm the judgment of conviction in its entirety.

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

Order modified and the case remitted to Supreme Court, Niagara County, for a new trial on the seventh count of the indictment in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Handy Johnson, Appellant.
    Argued October 17, 1980;
    decided November 20, 1980

      APPEARANCES OF COUNSEL

      Bennett M. Lincoff and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Kenneth R. Larywon and Timothy J. McGinn of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The issue raised with respect to the procedure followed in approving the appellant’s waiver of jury trial was not preserved for review (CPL 470.05, subd 2). Moreover, quite apart from the lack of preservation, there is nothing on this record to afford a basis for determination of the question now raised for the first time. As the People correctly argue, the appellant’s present claim that his participation in the waiver was not knowing and voluntary implicates his relationship with his trial attorney and is to be proved, if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10. That course was not pursued.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    The People of the State of New York, Respondent, v Frank Phillips, Jr., Appellant.
    Argued October 17, 1980;
    decided November 20, 1980

      APPEARANCES OF COUNSEL

      Bernard Hirschorn for appellant.

      John J. Santucci, District Attorney (Charles N. Walsh of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The record discloses support for the finding by the suppression court that the arrest was made with probable cause and that the subsequent search was lawful under the circumstances. There being evidence to support the findings below, we must affirm.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    Mario Osta, Respondent, v Jane R. Jazeboski, as Executrix of Chester Jazeboski, Deceased, et al., Appellants.
    Argued September 4, 1980;
    decided November 20, 1980

      APPEARANCES OF COUNSEL

      Francis A. Woidzik for Jane R. Jazeboski, as executrix of Chester Jazeboski, deceased, appellant.

      Hazel R. Rodriguez and Nicholas J. Grosso for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the opinion by Mr. Justice D. Vincent Cerrito at Supreme Court, Schenectady County.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Sabu Ganett, Appellant.
    Argued October 17, 1980;
    decided November 20, 1980

      APPEARANCES OF COUNSEL

      Sheldon M. Markel for appellant.

      Edward C. Cosgrove, District Attorney (Ernest G. Anstey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant’s contention that the indictment was a blank authorization permitting the police to arrest any person whom they might choose is wholly without merit. It is obvious that the Grand Jury intended to indict the specific person who sold heroin to Petronella on March 12, 1976, that person having been identified to the Grand Jury as “Sabu Ganett”. This was the only reasonable interpretation to be drawn from the Grand Jury testimony of Petronella.

In these circumstances it was error for the trial court to deny the motion of the People to amend the indictment to substitute the name of Sabu Gary, the true name of the defendant, for Sabu Ganett.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    In the Matter of William E. Lewis, as President of Suffolk County Chapter, Civil Service Employees Association, et al., Appellants, v John P. Finnerty, as Sheriff of the County of Suffolk, et al., Respondents.
    Argued October 17, 1980;
    decided November 20, 1980
   Appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Kushlin v Bialer, 26 NY2d 748).


text:
    Manuel Braga, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted November 10, 1980;
    decided November 20, 1980
   Motion for reargument dismissed as untimely (22 NYCRR 500.9 [b]). [See 49 NY2d 708, 997.]


text:
    Kay-Fries, Inc., Respondent, v Frank D. Martino, Individually and as President of International Chemical Workers Union, AFL-CIO, et al., Appellants.
    Submitted October 20, 1980;
    decided November 20, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning Of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 18, p 76).


text:
    In the Matter of the Estate of Robert S. Wood, Deceased. Nathan M. Medwin, as Executor of Robert S. Wood, Deceased, Appellant; Frank H. Purzycki et al., Respondents.
    Submitted November 3, 1980;
    decided November 20, 1980
   Motion to dismiss appeal granted to the extent that the appeal from so much of the order of the Appellate Division as reversed and remitted the proceeding to the Surrogate’s Court is dismissed, without costs, upon the ground that that portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; motion otherwise denied.


text:
    Board of Education, Mt. Sinai Union Free School District, Respondent, v New York State United Teachers et al., Appellants.
    Argued November 14, 1980;
    decided November 25, 1980

      APPEARANCES OF COUNSEL

      Jeffrey S. Karp, James R. Sandner and Donald Congress for appellants.

      Oscar J. Bloom for respondent.
   OPINION OF THE COURT

Memorandum.

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

The arbitration provisions of the parties’ contract broadly and unambiguously embraced all claimed violations of the contract. The ambiguity, if any, in the provisions alleged to have been violated is, therefore, a matter for the arbitrator to resolve. (Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669, 671.)

In addition, allowing arbitration of this grievance would violate no public policy. Although a board of education may not bargain away its authority to grant or deny tenure, it may limit its right to terminate a probationary teacher during the probationary period. (Board of Educ. v Barni, 49 NY2d 311; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

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


text:
    The People of the State of New York, Appellant, v Emanuel Batista and Frances Branciforte, Respondents.
    Argued November 13, 1980;
    decided November 25, 1980

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Jerrold L. Neugarten and Jerrold Tannenbaum of counsel), for appellant.

      Richard Steel for respondents.
   OPINION OF THE COURT

Order affirmed (People v Wharton, 46 NY2d 924, 925).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Ronald Cooper, Appellant.
    Argued November 13, 1980;
    decided November 25, 1980

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (William G. Pixley of counsel), for appellant.

      Lawrence T. Kurlander, District Attorney (Melvin Bressler of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, defendant’s motion to suppress granted and a new trial ordered (see People v Rogers, 48 NY2d 167).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of John M. St. Lawrence County Department of Social Services, Appellant.
    Argued November 13, 1980;
    decided November 25, 1980

      APPEARANCES OF COUNSEL

      Terrence J. Whelan and Ethan K. Phillips for appellant.

      Barbara R. Lake, Law Guardian pro se.

   OPINION OF THE COURT

Order, insofar as appealed from, reversed, without costs, and the direction that the concurrence of the Law Guardian be obtained prior to the return of the infant stricken for reasons stated in the dissenting opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (71 AD2d 144,148-149).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Ocean Rock Associates, Appellant, v Alfred Cruz et al., Respondents.
    Argued November 14, 1980;
    decided November 25, 1980

      APPEARANCES OF COUNSEL

      Stanley L. Shapiro for appellant.

      Robert K. Drinan, John C. Schaeffer, Jr., Michael J. Obus and Rocky Piaggione for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the majority at the Appellate Division that there was sufficient evidence to sustain the trial court’s determination that appellant landlord breached the implied warranty of habitability and that in view of the breach being substantial, the abatement of rent was proper (cf. Park West Mgt. Corp. v Mitchell, 47 NY2d 316, 329).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Hendrickson Bros., Inc., Respondent, v County of Suffolk et al., Appellants.
    Argued October 14, 1980;
    decided November 25, 1980

      APPEARANCES OF COUNSEL

      David J. Gilmartin, County Attorney (Richard Martin Klein of counsel), for appellants.

      Robert M. Blakeman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. The courts below properly granted the petition.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Michael A. Dawson, Appellant.
    Argued November 13, 1980;
    decided November 25, 1980
   Appeal dismissed upon the ground that the Appellate Division’s determination of reversal was not on the law alone within the meaning of CPL 450.90 (subd 2, par [a]).


text:
    In the Matter of Jerrold Gertz et al., Appellants, v Tax Commission of the City of New York et al., Respondents.
    Argued November 13, 1980;
    decided November 25, 1980
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    The People of the State of New York, Respondent, v Efrain Arroyo, Appellant.
    Submitted November 20, 1980;
    decided November 25, 1980
   Motion for a stay and for bail denied.


text:
    In the Matter of Robert B. Beachboard, Appellant, v Columbia University, Respondent.
    Submitted November 10, 1980;
    decided November 25, 1980
   Motion to vacate the Court of Appeals order of dismissal dated September 16,1980 denied. [See 51 NY2d 768.]


text:
    Mary Nobisso, Appellant, v Sidney Freed, Respondent.
    Submitted October 20, 1980;
    decided November 25, 1980
   Motion to dismiss the appeal denied.


text:
    Jeremiah O’Brien et al., as Executors of Jerry F. O’Brien, Deceased, Appellants, v James O’Brien et al., Respondents.
    Submitted November 3, 1980;
    decided November 25, 1980
   Motion for leave to appeal dismissed as untimely (see Cohen and Karger, Powers of the New York Court of Appeals, § 104, p 486).


text:
    Mary Paradies, Individually and as Administratrix of the Estate of Richard Paradies, Deceased, Appellant, v Benedictine Hospital et al., Respondents.
    Submitted November 3, 1980;
    decided November 25, 1980
   Motion for leave to appeal dismissed as untimely (CPLR 5513, subd [b]), with $20 costs and necessary reproduction disbursements.

Chief Judge Cooke taking no part.


text:
    Linda Sagan, Appellant, v Carl Sagan, Respondent.
    Submitted November 10, 1980;
    decided November 25, 1980
   Motion for an injunction restraining trial dismissed on the ground that the relief sought is not within the scope of the action oh appeal.


text:
    Salesian Society, Inc., Respondent, v Village of Ellen-ville et al., Defendants, and American Telephone & Telegraph Co. et al., Appellants.
    Submitted October 27, 1980;
    decided November 25, 1980
   Motion by American Telephone & Telegraph Co. (AT&T) for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements and, on the court’s own motion, appeals taken as of right by AT&T and Ice Caves Mountain Corp. dismissed, without costs, each upon the ground that the Appellate Division order does not finally determine the action within the meaning of the Constitution.