text:
    Harwyn Luggage, Inc., Respondent, v Henry Rosenfeld, Inc., et al., Appellants.
    Decided March 29, 1983

      APPEARANCES OF COUNSEL

      Gregory D. Frost for appellants.

      Andrew J. Goodman for respondent.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. Appellants’ claims with respect to the arbitrator’s refusal to grant an adjournment raise no cognizable objection to the arbitration award, given our narrow scope of review (CPLR 7511, subd [b], par 1, cl [i]).

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


source: Caselaw Access Project

license: Public Domain

text:
    Konstantina Athanasopoulos et al., Appellants, v JoAnne D’Agostino et al., Respondents.
    Decided March 29, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of James D. Keleher, Appellant, v American Airlines, Inc., Respondent. James D. Keleher, Appellant, v American Airlines, Inc., Respondent.
    Submitted February 21, 1983;
    decided March 29, 1983
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. On the court’s own motion, appeal taken as of right in the declaratory judgment action dismissed, without costs, upon the ground that the modification at the Appellate Division is not substantial (CPLR 5601, subd [a], par [iii]); Jadam Assoc. v Felomer, Inc., 29 NY2d 795).


text:
    Eleanor Paget, Appellant, v Portman Paget, Respondent.
    Decided March 29, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of the Application of John Schatzel, Respondent, v William G. Connelie, as Superintendent of the New York State Police, et al., Appellants.
    Submitted March 25, 1983;
    decided March 29, 1982
   Motion to dismiss appeal denied. Motion to vacate statutory stay denied.


text:
    David B. Thompson et al., Appellants, v County of Erie, Defendant, and Consolidated Rail Corporation, Respondent. David B. Thompson et al., Appellants, v County of Erie, Defendant, and Consolidated Rail Corporation, Respondent.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Decided March 29, 1983
   Appeal No. 2 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Judge Simons taking no part.


text:
    Town of Oyster Bay, Respondent, and Anthony Giamo et al., Intervenors-Respondents, v Prego Chemical Corp. et al., Appellants.
    Submitted February 21, 1983;
    decided March 29, 1983
   Motion, treated as one for leave to appeal from the July 13, 1981 order of the Appellate Division, dismissed for untimeliness. Motion, treated as one for leave to appeal pursuant to CPLR 5602 (subd [a], par 1, cl [ii]) from the January 12, 1983 judgment of Supreme Court seeking review of the July 13,1981 order of the Appellate Division, dismissed upon the ground that the motion does not lie to bring up for review an order of the Appellate Division made in an earlier action (see Matter of Concerned Citizens v Town of Yorktown, 54 NY2d 957).


text:
    In the Matter of the Estate of Jon H. Alexander, Deceased. Central Trust Company et al., Appellants; John H. Alexander, Respondent.
    Argued February 8, 1983;
    decided March 30, 1983

      APPEARANCES OF COUNSEL

      Robert J. Burke and John M. Bansbach for Central Trust Co., appellant.

      James G. Vazzana and Christopher H. Corcoran for Sheila Williams and another, appellants.

      Richard G. Vogt for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and the decree of the Surrogate’s Court, Monroe County, construing decedent’s will reinstated.

Decedent was survived by three children, a son from a marriage that ended in divorce and two daughters from a second marriage. Within 10 separate provisions of his will, decedent disposed of his property and provided for administration of his estate making specific grants in express, particular, and consistent terms. In the will’s residuary clause decedent directed that the remainder of his estate “be divided into equal shares, making one share for each of my daughters,” it being further provided that out of this remainder one daughter should receive specific real property, if and only if the two shares could remain equal in value. The clause’s final sentence, however, provides “[i]n respect to each of my children living at my death, I give, devise and bequeath one such share to each such child.”

Decedent’s intent in devising and bequeathing shares of his residuary estate, as viewed within the context of the entire will, was that his daughters and not his son should share the residuary estate. This is evidenced by the residuary clause’s repeated and exclusive nominal references to decedent’s daughters. The final sentence, although containing what may be read as an inconsistent proviso, is nothing more than an inartful and superfluous attempt to summarize the distribution of decedent’s residuary estate.

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

Order reversed, etc. '

' /


text:
    Village of Herkimer et al., Appellants, v David Axelrod, as Commissioner of the New York State Department of Health, et al., Respondents.
    Argued February 9, 1983;
    decided March 30, 1983

      APPEARANCES OF COUNSEL

      Evalyn G. Basloe for appellants.

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Peter H. Schiff of counsel), for respondent.

      Paul J. Yesawich, III, and Douglas A. Foss for Seneca Falls Hospital, amicus curiæ.

   OPINION OF THE COURT

Memorandum.

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

Appellant operates a municipal hospital and seeks to overturn a determination by the State Department of Health, made pursuant to section 2806 of the Public Health Law, that modified the hospital’s operating certificate, and stipulated that “the interests of the health and welfare of the community will be best served by modifying the operating certificate of the Herkimer Memorial Hospital to provide that it be certified to provide long term care services * * * in lieu of certification as a seventy (70) bed acute care facility”. The thrust of appellant’s principal argument is that the statute is facially unconstitutional as its application violates due process and equal protection. Appellant was empowered by section 126 of the General Municipal Law to establish the subject hospital. The hospital, therefore, is operated as part and parcel of the power delegated by the Legislature to appellant as a political subdivision. Inasmuch as political subdivisions of the State are powerless to challenge the constitutionality of an act of the Legislature that restricts the subdivision’s governmental powers, appellant lacks standing to maintain its constitutional challenge to section 2806 of the Public Health Law (see Town of Black Brook v State of New York, 41 NY2d 486, 488).

Appellant’s other claims have been considered and are found to be without merit.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of American Society for the Prevention of Cruelty to Children, Appellant. Robert Abrams, as Attorney-General of the State of New York, et al., Respondents.
    Argued February 14, 1983;
    decided March 30, 1983

      APPEARANCES OF COUNSEL

      Richard T. Farrell for appellant.

      Robert Abrams, Attorney-General (Jonathan J. Silbermann, Peter H. Schiff and Robert R. Molic of counsel), respondent pro se and for ultimate charitable beneficiaries.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.

The American Society for the Prevention of Cruelty to Children, incorporated under the laws of the State of Delaware, made application under section 1304 of the Not-For-Profit Corporation Law for authorization to conduct activities in the State of New York. When the New York State Society for the Prevention of Cruelty to Children declined to give its approval as contemplated by subdivision (c) of section 1304 and subdivision (g) of section 404 of that statute, the American society instituted the present proceeding under subdivision (g) of section 404 to dispense with such approval. Supreme Court granted the relief sought but the Appellate Division reversed and dismissed the proceeding.

Although the application of the American society did not so state, in the Supreme Court and at the Appellate Division the litigation proceeded and the determinations were made on the assumption that the application of the American society sought authorization to conduct in New York all the activities a domestic Society for the Prevention of Cruelty to Children could conduct, including those pursuant to several special and extraordinary powers granted domestic societies under the laws of New York (e.g., Not-For-Profit Corporation Law, § 1403, subd [b]). In our court, apparently for the first time, the American society acknowledges that under subdivision (a) of section 1301 of the Not-For-Profit Corporation Law at most it can obtain authorization to conduct activities which may be conducted lawfully by a domestic corporation only to the extent that it is authorized to conduct such activities under the laws of the State of Delaware, the State of its incorporation.

Inasmuch as its application has never been considered on this limited basis, the proceeding should be remitted to Supreme Court for consideration and determination of the motion by the American society to dispense with approval of the New York society of its application for authorization to conduct activities in New York which may be conducted by domestic societies but only to the extent it may do so under the laws of Delaware. In view of the extensive submissions and record and the preliminary procedural steps accomplished, it is preferable to remit the present proceeding for such consideration and determination, rather than to affirm the determination of the Appellate Division (which was correct as the matter stood before it) without prejudice to the initiation of a new proceeding.

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

Order reversed, without costs, and matter remitted to Supreme Court, Suffolk County, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Chana Kenig, as Executrix of Wolf Kenig, Deceased, Respondent, v Motor Vehicle Accident Indemnification Corporation, Appellant.
    Decided March 30, 1983

      APPEARANCES OF COUNSEL

      George G. Mackey for appellant.

      Kenneth I. Albert for respondent.
   OPINION OF THE COURT

Memorandum.

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

On January 27, 1980, the decedent, Wolf Kenig, was killed when he was hit by a tow truck while he was riding his bicycle. The truck was owned by Peter Bowen, doing business as “Bowen’s Arco”, and was operated by Douglas Hollingsworth, an employee of Bowen’s Arco. On March 21, 1980, the decedent’s wife was appointed by Surrogate’s Court, Monroe County, as executrix of his estate. Thereafter, as such executrix she applied for and received first-party no-fault benefits from the United States Fidelity and Guaranty Company (USF&G), the insurer of Bowen’s truck at the time of the accident.

On December 29, 1980, the executrix served Hollingsworth with a summons and complaint commencing the Kenig v Bowen action and alleging that the death of her decedent was the direct result of Hollingsworth’s negligent operation of the truck owned by Bowen. On January 5, 1981, Bowen was also served. On January 23, 1981, attorneys for USF&G interposed an answer on behalf of Bowen. The answer, among other things, included the following affirmative defense: “That defendant Douglas R Hollingsworth did not have the permission or consent, either express or implied, of defendant Pete Bowen to use and/or operate the vehicle at the time and place of the accident, as alleged in the complaint, or in the alternative, that said defendant Hollingsworth’s use and/or operation of said vehicle as alleged, exceeded the scope of any express or implied permission or consent, exceeded the scope of his employment, and was not authorized by defendant Pete Bowen, which constitutes a complete defense to this action on behalf of defendant Pete Bowen.”

The attorney for the executrix immediately wrote to USF&G to inquire why it was not going to appear on Hollingsworth’s behalf. On January 26, 1981, Hollingsworth appeared pro se and interposed a general denial. The executrix’ attorney received no response to his letter to USF&G until May 15, 1981 when, in a belated follow-up conversation, he spoke with a USF&G representative who informed him that it had not appeared for Hollingsworth because, as was alleged in Bowen’s answer, he did not have Bowen’s consent to operate the vehicle.

On May 21, 1981, the executrix filed a notice of claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC) explaining that the notice had been filed more than 90 days after the accident because the insurer still had not sent a formal disclaimer but on May 15, 1981 had advised the executrix’ attorney that Hollingsworth would not be defended. On June 23,1981, MVAIC notified the executrix that it was rejecting the claim because there had not been “compliance with the provisions applicable to timely notice”.

By notice of motion dated July 13, 1981, MVAIC moved for an order absolving it of any obligation to indemnify or to appear 'for and defend Hollingsworth in the Kenig v Bowen action or for any other liability therein. By notice of petition dated July 20,1981, the executrix sought an order directing MVAIC to accept her notice of claim. Special Term, without opinion, denied MVAIC’s motion and ordered MVAIC to accept the claim with the same force and effect as if it had been filed within the time period prescribed by subdivision (c) of section 608 of the Insurance Law. The Appellate Division affirmed, without opinion, with one Justice dissenting.

Special Term could properly have applied the amended version of subdivision (c) of section 608 of the Insurance Law, which was effective June 30,1980 (L 1980, ch 788), to the present application to require MVAIC to accept the executrix’ notice of claim. Although the amendment took effect after the cause of action accrued, the claim was still ongoing at the time the amendment took effect, it was in effect when the action was commenced and when the notice of claim was filed, and it was a remedial amendment.

The amended subdivision (c) provides an additional 90 days to file a notice of claim where “the insurer or insurers of the person or persons liable or alleged to be liable for his injury or loss have disclaimed * * * coverage because of some act or omission of the person or persons liable or alleged to be liable including the denial of coverage based upon the lack of a policy of insurance in effect at the time the cause or causes of action arose”. This amendment covers situations, such as here, where the insurer has disclaimed based on the driver’s operation of the vehicle without the owner’s consent and in effect overrules this court’s holding to the contrary in Allegretti v Mancuso (33 NY2d 882).

The critical issue in this case, then, under subdivision (c) as amended is whether the executrix filed her notice of claim within 90 days of receipt by her of notice of disclaimer or denial of coverage by the insurer. This in turn depends on when she received such notice. MVAIC contends that this occurred in January, 1981 when USF&G served an answer on behalf of Bowen setting up lack of the owner’s consent as a defense and Hollingsworth served his pro se answer. Neither supplies the statutory predicate. The answer by USF&G gave notice that the insurer intended to defend the owner but would raise his lack of consent as a defense on the merits. Although it may be said that the executrix might reasonably have inferred from the service of Hollingsworth’s pro se answer that USF&G was not going to defend him and, in view of the defense raised in the owner’s answer, that the reason was the owner’s lack of consent, this would not have served as notice from USF&G of a disclaimer or denial of coverage. Such notice was first given by the insurer in the conversation on May 15, 1981. The notice of claim against MVAIC was then filed by the executrix on May 21, 1981, well within the statutory period.

MVAIC’s contention that the executrix did not make “timely reasonable efforts to ascertain coverage” is without merit. The executrix had communicated with the owner’s insurer shortly after the accident and had obtained first-party, no-fault benefits yet the insurer did not raise the possibility of a disclaimer or denial of coverage during this time period.

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

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


text:
    Joseph M. Aiello, Appellant, et al., Plaintiff, v Frederick J. Garahan, Respondent. James W. Leach, Appellant, et al., Plaintiff, v Frederick J. Garahan, Respondent.
    Decided March 30, 1983

      APPEARANCES OF COUNSEL

      George C. Valette and Charlene E. McGraw for appellants.

      Robert A. Small for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division’s determination that it was error to have set aside the verdict as against the weight of the evidence, although appealable, is beyond the scope of our review (Mongelli Carting Co. v Nassau Ins. Co., 57 NY2d 649; Rudes v Walrath, 56 NY2d 703; Noia v De Rosa, 54 NY2d 631; Gutin v Mascali & Sons, 11 NY2d 97; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 148, p 588). Due to the posture in which this case comes before us, there must be an automatic affirmance (Goehle v Town of Smithtown, 55 NY2d 995; Rochester Tel. Corp. v Green Is. Constr. Corp., 51 NY2d 788; Pfohl v Wipperman, 34 NY2d 597).

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

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


text:
    The People of the State of New York, Respondent, v John William Hopkins, Appellant.
    Argued February 10, 1983;
    decided March 30, 1983

      APPEARANCES OF COUNSEL

      George Abdella and Ernest Abdella for appellant.

      William Gritsavage, District Attorney (Valerie Friedlander, Michael A. Gross, Steven J. Greenblatt and Deborah Wolikow Loewenberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The finding that the defendant’s prearraignment oral and written confessions were voluntary, having support in the record, is beyond our review (People v Anderson, 42 NY2d 35, 38-39; People v Leonti, 18 NY2d 384, 389, cert den 389 US 1007). Moreover, absent extraordinary circumstances, a delay in arraignment is but a factor to consider on an issue of underlying involuntariness (People v Holland, 48 NY2d 861; People v Dairsaw, 46 NY2d 739). And such a delay does not cause the right to counsel to attach automatically. In any event, in the present case, the unexpected revelations concerning the two unsolved murders were more than sufficient justification for postponing the originally scheduled arraignment to a later time (contrast People v Lockwood, 44 NY2d 769, revg on dissent of Justice Capozzoli at 55 AD2d 17, 20-25).

Nor on the record and the findings here can we say as a matter of law that the confessions were suppressible by reason of a per se deprivation of defendant’s right to counsel as delineated under the line of cases which fixes its entitlement as of the commencement of formal adversary proceedings, here the arraignment (People v Wilson, 56 NY2d 692).

Not applicable either is the Donovan-Arthur rule (People v Donovan, 13 NY2d 148; People v Arthur, 22 NY2d 325), which precludes questioning in counsel’s absence once counsel in fact has entered the picture (see People v Angus, 56 NY2d 549, affg 81 AD2d 971). In this regard, the record is undisputed that, whatever may have been the inchoate intention with respect to the entry of counsel at the originally scheduled time of arraignment, it did not go forward at that time. Rather, as found below, such assignment did not come into being until the arraignment actually took place and then only in the form of an attorney different from the one the City Court originally had in mind. Relatedly, also there was a finding that the defendant — 29 years of age, intelligent as judged by manner and appearance, as well as a former student of criminology — personally declined prearraignment offers of counsel (People v Angus, supra; contrast People v Cunningham, 49 NY2d 203).

With respect to the additional confession made to a deputy sheriff assigned to guard the defendant at the county jail after he was remanded and counsel indeed had been assigned, it is to be remembered that not all remarks uttered by law enforcement personnel constitute impermissible interrogation (People v Lynes, 49 NY2d 286, 294; People v Garofolo, 46 NY2d 592, 603). In this perspective, suffice it to say that the finding of spontaneity finds support in the record (People v Rivers, 56 NY2d 476; People v Roucchio, 52 NY2d 759, 760; contrast People v Lanahan, 55 NY2d 711).

Defendant’s further contention that his privilege against self incrimination was infringed when, at the trial, the court permitted cross-examination about a collateral matter which, over objection, had been elicited from the defendant at the Huntley hearing, must be rejected. But, whatever merit there may be to the contention that a defendant who chooses to take the witness stand at trial waives the privilege only with respect to matters probative of guilt or innocence and not to those relevant to credibility alone (compare, e.g., People v Johnston, 228 NY 332, 340, with People v Tice, 131 NY 651; McCormick, Evidence [2d ed], § 42, p 84; § 132, pp 278-279), it is not necessary for us to reach that question here (cf. People v Brown, 72 NY 571, 573). For, if error, it was harmless. Specifically, the detailed and graphic confessions, once these were properly found admissible, when added to the corroborative web of circumstantial evidence, presented a picture of guilt so overwhelming that it left no reasonable possibility that the evidence in question contributed to the conviction (People v Crimmins, 36 NY2d 230; cf. People v Schaeffer, 56 NY2d 448).

Finally, although the prosecutor’s opening and summation are not deserving of accolades, and some remarks would have been better left unsaid, we cannot say that the defendant was deprived of a fair trial (People v Galloway, 54 NY2d 396; contrast People v Bailey, 58 NY2d 272).

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

Order affirmed in a memorandum.


text:
    Remsen Properties, Inc., Respondent, v Solomon Nayman, Appellant, et al., Defendant.
    Decided March 30, 1983

      APPEARANCES OF COUNSEL

      Samuel Kirschenbaum for appellant.

      Charlotte M. Fischman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (89 AD2d 1015).

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


text:
    Chemical Bank, Appellant-Respondent, v Louis Sternbach & Co., Respondent-Appellant.
    Decided March 30, 1983
   Appeal and cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    Joseph Cullen, Individually and as Natural Guardian of Kevin Cullen, an Infant, Respondent, v Olins Leasing, Inc., et al., Respondents, and Janne Florsheim, Appellant.
    Submitted February 28, 1983;
    decided March 30, 1983
   Motion to dismiss the appeal denied.


text:
    In the Matter of Institute of International Education, Inc., Appellant, v Finance Administration of the City of New York et al., Respondents.
    Decided March 30, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution and upon the further ground that no substantial constitutional question is directly involved.


text:
    Eugene Sumner et al., Appellants, v Extebank, as Successor in Interest to Century National Bank and Trust Company, Respondent.
    Argued February 15, 1983;
    decided March 31, 1983

      APPEARANCES OF COUNSEL

      James P. Rau and Christophil B. Costas for appellants.

      John J. Madden, Jr., Thomas M. Geisler, Jr., and Joanna Shally for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to appellants, by reversing so much of the order as granted judgment to defendant and dismissed the complaint, and by reinstating the order of Trial Term, which ordered a new trial, and as so modified, affirmed.

Plaintiffs contend that defendant’s private sale of stock held as collateral was improper under section 9-504 of the Uniform Commercial Code because the sale price was unreasonably low. At trial, plaintiffs presented evidence from which the jury could have inferred that the corporation’s sole asset, an oil tanker, was worth at least $1,650,000 at the time of the sale. The trial court set aside 0 the verdict for plaintiffs as against the weight of the evidence and ordered a new trial.

The Appellate Division went one step further and entered judgment for defendant. In doing so, that court made new factual findings and thereby substituted itself for the jury. The Appellate Division had the power only to order a new trial in such circumstances unless there was insufficient evidence to support the verdict (see Cohen v Hallmark Cards, 45 NY2d 493, 498). There having been sufficient evidence, it was error to enter judgment for defendant.

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

Order modified, with costs to appellants, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Restoration Realty Corp., Appellant, v Olivia Robero, Respondent. (And Another Proceeding.)
    Argued February 15, 1983;
    decided March 31, 1983

      APPEARANCES OF COUNSEL

      Arthur L. Goldstein for appellant.

      David Ng and Kent Karlsson for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant, a tenant in a building owned by plaintiff, had, pursuant to the lease with the previous owner, an option which gave the tenant, so long as in good standing, the right “For One (1) Year from date hereof to Purchase these premises” at a specified price. The lease was dated August 8, 1978 and provided that its term would commence on August 15, 1978 and run for five years until August 15, 1983. When tenant attempted to exercise her option on August 14, 1979, the new owner, who had purchased the property subject to the lease and its option, refused to accept the tenant’s letter on the grounds that it was untimely. The landlord interpreted the option to have expired on August 7, 1979. This action was brought by the landlord seeking a declaratory judgment of the terms of the lease and option and to have the tenant removed in a holdover summary proceeding.

Supreme Court held that the option had expired on August 7, 1979. The Appellate Division reversed, finding that, on the basis of the evidence submitted, August 15 was the controlling date of the lease. We agree with the Appellate Division that the weight of the credible evidence lies with the determination that the option was to be effective up to August 15, 1979. Thus, defendant’s attempt to exercise that option on August 14,1979 should have been given effect by the landlord unless he could establish that the tenant was not in good standing as required by the terms of the option.

The landlord has raised several arguments that he claims support his allegation that the tenant was not in good standing. All the allegations are de minimis in nature and the plaintiff has failed to show any prejudice resulting from the tenant’s alleged breach of the terms of the lease. We conclude that there is no substance to the contentions advanced by the landlord that the tenant was not in good standing within the contemplation of the lease. In this case, the Appellate Division found that none of the alleged breaches were material and that the landlord was not prejudiced thereby.

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

Order affirmed, with costs, in a memorandum.


text:
    Frank A. Scibetta Plumbing & Heating Corporation, Respondent, v M & W Limited Partnership et al., Appellants, et al., Defendants.
    Decided March 31, 1983

      APPEARANCES OF COUNSEL

      James W. Gresens for appellants.

      James I. Spandau for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (90 AD2d 956).

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


text:
    Mets Parking Incorporated et al., Appellants, v New York State Urban Development Corporation, Respondent.
    Argued March 21, 1983;
    decided March 31, 1983

      APPEARANCES OF COUNSEL

      Brian Michael Seltzer and Jeffrey G. Stark for appellants.

      Charles G. Moerdler, James G. Greilsheimer, Curtis C. Mechling, Harold L. Fisher and Corrinne S. Marcus for respondent.
   OPINION OF THE COURT

Memorandum.

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

There is no merit to appellants’ arguments that the New York State Urban Development Corporation has failed to comply with the prescriptions of the New York State Urban Development Corporation Act (L 1968, ch 174, § 1) in its planning of the “42nd Street Development Land Use Improvement Project” (the planned rebuilding of New York City’s Times Square area). In our court appellants have narrowed their challenges to the actions of the corporation and here focus their attack mainly on two grounds.

They cite what they characterize as the failure of the corporation to establish a community advisory committee as provided in subdivision (7) of section 4 of the act. The subdivision relied on, however, includes no prescription as to the time or stage of the concededly extended planning process by which such committee shall be established. It is not disputed that in this instance the corporation established such a committee in December, 1981, after appeal had been taken to the Appellate Division but prior to argument of that appeal. Appellants cite no provision of statute, regulation of the corporation, or decision in case law mandating the establishment of a community advisory committee prior to that date.

The principal thrust of appellants’ argument is in support of their contention that the public hearing conducted by the corporation on August 3,1981 did not satisfy the requisites of section 16 (subd [2], par [c]) of the act. Following a requirement that the corporation shall publish notice of the general project plan, paragraph (c) provides: “the corporation shall conduct a public hearing pursuant to such notice”. We agree with the Appellate Division that there were no legal deficiencies in the hearing held on August 3,1981. The statutorily mandated hearing is properly classified as a quasi-legislative hearing. There is no predicate in statute or applicable case law for assertion that any one or more of the members of the board of directors of the corporation must personally attend such hearing or that it must be presided over by a hearing officer possessed of particular knowledge of or individual competence with respect to the subject matter of the hearing. The appointment of a hearing officer as agent of the corporation is expressly authorized by statute (§ 4, subd [10]), and the appointment of a qualified hearing officer who was individually independent and impartial could have been judged by the board of directors to be distinctly preferable to the appointment of a person who might be perceived as biased in consequence of his active participation in the planning process on behalf of the corporation.

Nor is there any substance to appellants’ assertion that one of the functions of the public hearing was to afford members of the public “access” to the members of the board of directors, or to provide the corporation an opportunity to communicate its views to the public or otherwise at the hearing to respond to questions from persons in attendance. The purpose of the hearing, as its designation makes clear, is to afford members of the public an opportunity to express their opinions and comments to the corporation. Appellants wholly fail to establish, by citation to pertinent authority, by recourse to persuasive argument, or otherwise, that the transmission of a stenographic transcript of the hearing to each member of the board of directors of the corporation was not sufficient in this instance to fulfill the objectives of the statutory prescription.

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

Order affirmed, with costs, in a memorandum.

       The statute also makes provision for the presentation of written comments on the plan (§ 16, subd [2], par [d]).


text:
    In the Matter of Eastern Milk Producers Cooperative Association, Inc., Respondent, v State of New York Department of Agriculture and Markets et al., Appellants.
    Decided March 31, 1983

      APPEARANCES OF COUNSEL

      Thomas G. Conway and Michael McCormick for appellants.

      Frederick J. Micale for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal taken as of right should be dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. But, on the court’s own motion, leave to appeal should be granted (CPLR 5602, subd [a], par 2). The order of the Appellate Division then should be reversed, with costs, and the determination of the Commissioner of the Department of Agriculture and Markets reinstated.

At the time of the dealer’s default in this case, subdivision 5 of section 258-b of the Agriculture and Markets Law provided that no claims against the milk producers’ security fund would be allowed for amounts owed the producer on deliveries made after the first two months preceding the default. As part of the over-all statutory scheme to protect milk producers from the large credit risks to which they had been subjected (see L 1975, ch 526, § 1), subdivision 2 of section 258-b required a producer, once a dealer to whom it had extended credit was in default, to make only cash sales to .the dealer.

At issue here are claims for reimbursement for credit sales made for five days after the dealer’s default in paying for the previous month’s deliveries. We believe the commissioner acted reasonably in reading subdivision 5, as it then read and as it was later amended, in conjunction with the cash on delivery requirements of subdivision 2 so as to impose an outside limit on claims against the fund.

It is well settled that where interpretation or application of a statute calls for special knowledge, courts regularly defer to administrative expertise (Matter of Burger King v State Tax Comm., 51 NY2d 614, 621; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). Here, such deference is especially warranted, since the commissioner’s determination was eminently reasonable in light of the legislative purpose. In creating the fund, the Legislature surely intended that the pool of private moneys against which producers secure the credit extended to dealers be administered prudently (L 1975, ch 526, § 1). To this end, it surely could not have wanted producers to extend credit openhandedly (Memorandum of State Executive Dept., NY Legis Ann, 1975, p 81; see, also, Governor’s Memorandum, NY Legis Ann, 1975, pp 433-434). Disallowance of claims arising after the producer was obligated to sell only on a cash basis was, therefore, reasonable to prevent depletion of the fund.

Nor does the existence of a separate penalty provision in the statute (Agriculture and Markets Law, § 258-b, subd 15) preclude the commissioner’s disallowance of a producer’s claims under subdivision 2. That penalty, applicable only to dealers and not the producers who wrongfully extend credit to them, is but an additional sanction. Its nonexclusivity is underscored by the fact that a contrary reading would render nugatory the entire claim and certification system of subdivision 5.

Finally, the subsequent amendment of subdivision 5 (L 1981, ch 924) to explicitly permit the commissioner to disallow claims for “sales of milk by a producer to a milk dealer subsequent to its failure to pay within the time periods prescribed in subdivision two” does not establish that he lacked such power before the amendment. Amendment of a statute, without more, does not require a change in its judicial construction. In view of the fact that the statute in its original form can be so read, the amendment must be regarded as but a legislative amplification of its previous intent.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal taken as of right dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.

On the court’s own motion, leave to appeal granted to the Department of Agriculture and Markets et al., pursuant to CPLR 5602 (subd [a], par 2).

Order reversed, with costs, and the determination of the Commissioner of the Department of Agriculture and Markets reinstated.

       Under the statute, the date by which payment was due could be either that provided in subdivision 2 or an alternate date set by the commissioner. In this case, an alternate date applied (1 NYCRR 20.50a; 1 NYCRR 44.3; 1 NYCRR 44.4).


text:
    The People of the State of New York, Appellant, v Calvin Davis, Also Known as Kevin Dunn, Respondent. The People of the State of New York, Appellant, v Benjamin Johnson, Respondent.
    Argued March 22, 1983;
    decided March 31, 1983

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Robin Dolsky and Steven R. Kartagener of counsel), for appellant.

      Barry D. Leiwant and William E. Hellerstein for Calvin Davis, respondent.

      Ronald D. Degen for Benjamin Johnson, respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

Testimony offered not for the truth of its content but to evidence the fact that the statement was made is not hearsay. Key to the defense offered by defendants was that the victim’s wife had shot him when, during a struggle with defendants, the victim had called out to her to “Shoot the bastards.” That defendants’ version of the events strained credulity does not render the error harmless for credibility is a jury function and there were inconsistencies in and, therefore, problems with the testimony of the victim’s wife as well. The prosecution having been permitted to present through the wife its version of what the victim said and having argued to the jury that the wife would not have fired a gun under the circumstances then existing, the error in excluding defendant’s version of what those circumstances were cannot be deemed harmless.

We consider irrelevant, in determining whether the error was harmless, the fact that in some instances, defendants had answered questions designed to elicit the erroneously excluded statements before the Trial Judge had an opportunity to rule on the prosecutor’s objection thereto. Although in such instances, as the People contend, the statements made during the incident were in fact heard by the jury, it cannot be presumed that the jurors would disregard the Trial Judge’s instruction that they could not consider those statements in reaching their verdict.

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

Orders affirmed in. a memorandum.


text:
    The People of the State of New York, Appellant, v Jesse Arnette, Respondent.
    Argued February 17, 1983;
    decided March 31, 1983

      APPEARANCES OF COUNSEL

      Thomas A. Duffy, Jr., Special State Prosecutor (Mark M. Baker and Michael Shapiro of counsel), for appellant.

      Jesse Arnette, respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reinstating the judgment of Supreme Court insofar as it convicted defendant of criminal contempt in the first degree on the first count of Indictment No. 1318/79 and the case remitted to the Appellate Division for a determination of the facts (see CPL 470.40, subd 2, par [b]).

In 1979 the Queens County Grand Jury was conducting an investigation of alleged misconduct by employees of the New York State Department of Correctional Services’ Centralized Services Facility. Defendant, the Superintendent of the Centralized Services Facility, was called to testify about allegations that in 1977, while- superintendent, he had used State employees to repair the roof of his home during working hours and used State building materials. He testified before the Grand Jury under a waiver of immunity on June 7 and 14, 1979 and was questioned concerning the allegations. As a result of the investigation defendant was subsequently charged under three separate indictments charging him with two counts of contempt, first degree, perjury in the fourth degree, rewarding official misconduct, second degree, and conspiracy, fifth degree. Following a jury trial of the first indictment containing the contempt and perjury charges, defendant was convicted of the two counts of contempt and acquitted of perjury. He thereupon pleaded guilty to one count of rewarding official misconduct in the second degree in satisfaction of the remaining charges and was sentenced by the court on both judgments.

On appeal the Appellate Division reversed on the law the judgment convicting defendant of two counts of contempt and dismissed Indictment No. 1318/79. The judgment with respect to rewarding official misconduct was also reversed, the plea vacated and the case remitted to the Supreme Court for further proceedings. The People now concede that the evidence is insufficient to support the second count of criminal contempt, but they urge reversal of the Appellate Division’s order dismissing the first count.

The first count of the indictment alleged that defendant refused to answer legal and proper interrogatories concerning whether State workers under his supervision had engaged in private construction work on his house during their regular work week.

It is established by familiar rules that explicit testimony which is neither incredible as a matter of law nor patently false and which could provide the basis for a perjury charge if later shown to be false, is not a refusal to answer as contemplated by the Penal Law (People v Renaghan, 33 NY2d 991). Conversely, it has been held that the false and evasive profession of an inability to recall events or details which were significant and therefore memorable is punishable as criminal contempt (People v Schenkman, 46 NY2d 232, 237). A general denial followed by professions of an inability to recall particular events which would have left an impression on the defendant had they occurred is the equivalent of a failure to answer (People v Martin, 47 AD2d 883, affd 42 NY2d 882).

The Appellate Division’s reversal is based on defendant’s statement to the Grand Jury that “for the record, I have not seen any men on my roof twenty, ten or five days or less during a week, during the weekdays.” Also after being warned of the possibility of being held in contempt and asked if he had any specific recollection of having seen any employees at his home during the work week in the summer of 1977, defendant replied, “[n]o, I don’t remember. I have no problem with saying yes. I have no problem with saying no. When I say yes, I want to be sure. When I say no I want to be sure. I don’t want to have problems.”

A review of the record, however, reveals that defendant’s statement that he had not seen any men on his roof during the regular work week, unequivocal as it may have been when considered in isolation, was not a definite statement when placed in the context in which it was made. Thus, defendant testified:

“Q. There is testimony from this workman you saw there on several occasions during the regular work week. Do you understand that?

“A. I do understand that.

“Q. Does my telling you this refresh your recollection as to the testimony you gave in regard to this?

“A. I have given the testimony on my knowledge of what I know I have not seen — for the record, I have not seen any men on my roof twenty, ten or five days or less during a week, during the weekdays.

“Q. Or on your premises?

“A. Or on my premises. To the best of my knowledge, I testified that I do not remember anyone being on my property twenty-five days or less” (emphasis added).

Thus, defendant’s responses were equivocal, couched as they were in terms of his inability to remember the events and details which were the subject of the Grand Jury’s questions. These were the only so-called “unequivocal” answers to be found in a lengthy examination containing many evasive answers.

Moreover, the record amply demonstrates that had the State employees worked on his roof during improper times he would have remembered that fact. Defendant testified that he had been concerned about the legality and propriety of using State workers to perform personal services, that he hired them only after researching the matter, and only after he agreed with the maintenance supervisor of the Centralized Services Facility that the State employees would work on defendant’s roof on their own time. Defendant also testified that he was familiar with the employees and that he would have recognized them if he had seen them at his residence, that it was customary for the workers to arrive at his home before he left for work and that he frequently had to unlock the garage so that they could obtain necessary supplies and equipment for the job. Finally, defendant testified that if he had seen any of the State employees at his residence during the work week, he would recall it and therefore his later inability to recall whether he had or had not seen any employees at his residence during the work week is evidence of equivocation punishable as criminal contempt (see People v Schenkman 46 NY2d 232, 237, supra).

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

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


text:
    In the Matter of A. J. Clarke Management Corp., Appellant, v Conciliation and Appeals Board of the City of New York, Respondent.
    Decided March 31, 1983

      APPEARANCES OF COUNSEL

      Gary M. Rosenberg for appellant.

      Jay H. Litzman and Ellis S. Franke for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 517).

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


text:
    Jane Broder, Respondent, v Alvin Broder, Appellant.
    Submitted March 21, 1983;
    decided March 31, 1983
   Motion for a stay granted. Cross motion to dismiss the appeal denied.


text:
    In the Matter of John Doe, Doing Business as Anonymous Hospital, Appellant, v Edward J. Kuriansky, as Deputy Attorney-General of the State of New York, Respondent.
    Submitted March 21, 1983;
    decided March 31, 1983
   Motion to dismiss the appeal denied. Motion to vacate statutory stay denied.


text:
    In the Matter of Friends of The Pine Bush et al., Respondents-Appellants, v Planning Board of the City of Albany et al., Appellants-Respondents, and G.M.R. Properties, Inc., et al., Intervenors-Respondents.
    Submitted March 21, 1983;
    decided March 31, 1983
   Motion to strike petitioners’ brief and dismiss their cross appeal dismissed, with $20 costs to petitioners. An extension of time is not a reviewable order under rule 500.7 (d) of the Rules of the Court of Appeals (22 NYCRR 500.7 [d]). Motion for an extension of time to serve and file respondents’ reply brief granted to the extent that the reply brief may be filed on or before April 8, 1983.


text:
    Lakeside Transport Corp., Respondent, v Rogelio Morales, Appellant.
    Submitted March 14, 1983;
    decided March 31, 1983
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it. (NY Const, art VI, § 3, subd b, par [7]; CPLR 5602, subd [a], par 1.) On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. (CPLR 5601, subd [b], par 1.) Motion for a stay dismissed as academic.


text:
    Methodist Hospital of Brooklyn et al., Appellants, v State Insurance Fund et al., Respondents.
    Decided March 31, 1983
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    In the Matter of Rubin Sterngass, Appellant, v Howard B. Gregory et al., Constituting the Zoning Board of Appeals of the Town of Woodbury, Respondents.
    Submitted March 21, 1983;
    decided March 31, 1983
   Motion for reargument of motion for leave to appeal denied. Motion for an extension of the time within which to make a motion for leave to appeal or within which to take an appeal as of right dismissed upon the ground that the Court of Appeals does not have power to grant the relief requested. [See 58 NY2d 606.]


author: Wachtler, J.

text:
    In the Matter of L. Pamela P., Respondent, v Frank S., Appellant.
    Argued March 22, 1983;
    decided May 3, 1983

      POINTS OF COUNSEL

      AlanH. Levine for appellant.
    I. The Family Court, vested with the discretionary power to apportion the support obligation between parents equitably on the basis of their respective rights and responsibilities, rightfully imposed the primary obligation of support on petitioner. (Eisenstadt v Baird, 405 US 438; Planned Parenthood of Mo. v Danforth, 428 US 52; Matter of Geraldine K. v Elliot D. B., 99 Misc 2d 720; Tessler v Siegel, 59 AD2d 846; Matter of Sandra B. v Charles B., 85 Misc 2d 633; Feuer v Feuer, 50 AD2d 772; Matter of Doe v Doe, 86 Misc 2d 194; Callender v Callender, 37 AD2d 360; Matter of Anonymous, 74 Misc 2d 99.) II. Imposing support obligations on a man entrapped into becoming an unwilling biological father is a violation of the man’s fundamental privacy right to make autonomous procreative decisions. (Eisenstadt v Baird, 405 US 438; Carey v Population Servs. Int., 431 US 678; Planned Parenthood of Mo. v Danforth, 428 US 52; Schneider v Kennat, 267 App Div 589; Fuentes v Shevin, 407 US 67; Shelly v Kraemer, 334 US 1; Rivera v State of New York, 94 Misc 2d 157; Roe v Wade, 410 US 113.) III. Since petitioner’s means are sufficient to meet the child’s reasonable needs, she should bear the obligation of providing for them.

      Stephen M. Harnik and Franz S. Leichter for respondent.
    I. The court below correctly modified the Family Court’s order by striking the defense of fraud and deceit. (Schaschlo v Taishoff, 2 NY2d 408; Matter of Venus B. v Danillo S., 112 Misc 2d 195; Borax v Borax, 4 NY2d 113; Weber v Aetna Cas. & Sur. Co., 406 US 164; Jimenez v Weinberger, 417 US 628; Trimble v Gordon, 430 US 762; Levy v Louisiana, 391 US 68; Matter of Colmand v Dailey, 80 Misc 2d 133; Becker v Schwartz, 46 NY2d 401.) II. Even if the defense of “fraud” was an available defense to a paternity petition, it was error for the Family Court to permit testimony on the issue since fraud was never pleaded as an affirmative defense and no notice of such defense was ever given; consequently, for the sake of the mother and child, the testimony taken at the July 9 hearing must be expunged from the record. (Brodvin v Hertz Corp., 487 F Supp 1336; Walden v Thagard, 67 AD2d 973; Ensign v Klekosky, 25 Misc 2d 536, 12 AD2d 680; Channel Masters Corp. v Aluminum Ltd. Sales, 4 NY2d 403.) III. The finding of fact that petitioner is unable to meet the child’s needs has been affirmed by the court below and, consequently, no appeal lies thereon. (People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, cert den and app dsmd sub nom. De Martino v Scarpetta, 404 US 805.)
   OPINION OF THE COURT

Wachtler, J.

The issue on this appeal is whether a father, whose paternity of a child has been established, may assert, as a defense to his support obligation the deliberate misrepresentation of the mother concerning her use of contraception. We agree with the Appellate Division that the mother’s alleged deceit has no bearing upon a father’s obligation to support his child or upon the manner in which the parents’ respective support obligations are determined. The order of the Appellate Division should therefore be affirmed.

Following a hearing on the paternity petition, Family Court made an order of filiation, having found by clear and convincing evidence that respondent is the father of petitioner’s child. Thereafter respondent endeavored to establish that petitioner, intending to have respondent’s child regardless of his wishes, misrepresented to him that she was using contraception. Although petitioner conceded that she was not, at the time of conception, using any form of birth control, she denied that any conversation concerning contraception took place.

Family Court found that petitioner had purposely deceived respondent with regard to her use of contraception and that this wrongful conduct should weigh in respondent’s favor in determining the parents’ respective support obligations. Thus, the Family Court held that the general rule that the apportionment of child support obligations between parents is to be based upon the parents’ means would not be applicable to the present case; rather, it held that an order of support would be entered against the father only in the amount by which the mother’s means were insufficient to meet the child’s needs.

The Appellate Division modified Family Court’s order, striking the defense of fraud and deceit and increasing the child support award accordingly. Noting that the only factors to be considered by Family Court in fixing an award of child support are the needs of the child and the means of the parents, the Appellate Division held that the father’s allegations concerning the mother’s fraud and deceit had no relevance to the determination of his obligation to support the child.

Although at one time the objective of paternity proceedings was merely to prevent a child born out of wedlock from becoming a public charge, it is now well established that the appropriate emphasis must be upon the welfare of the child (Schaschlo v Taishoff, 2 NY2d 408; Matter of Nardone v Coyne, 18 NY2d 626, affg 23 AD2d 819; Matter of J. [Anonymous], 50 AD2d 890, app dsmd 39 NY2d 741). The primary purpose of establishing paternity is to ensure that adequate provision will be made for the child’s needs, in accordance with the means of the parents.

This overriding concern for the child’s welfare is reflected in the provisions of article 5 of the Family Court Act. Once paternity is established, section 545 requires the court to “direct the parent or parents possessed of sufficient means or able to earn such means to pay * * * a fair and reasonable sum according to their respective means as the court may determine and apportion for such child’s support and education, until the child is twenty-one”. Thus, in determining the parents’ obligations to support their child, the statute mandates consideration of two factors — the needs of the child for support and education and the financial ability of the parents to contribute to that support. The statute does not require, nor, we believe, does it permit, consideration of the “fault” or wrongful conduct of one of the parents in causing the child’s conception. The purpose of the paternity proceeding and the imposition of support obligations being the protection of the child, the Family Court, as a court of limited jurisdiction, is simply not the proper forum for adjudicating disputes existing solely between the parents.

Respondent argues, however, that petitioner’s intentional misrepresentation that she was practicing birth control deprived him of his constitutional right to decide whether to father a child. Recognizing that petitioner herself engaged in no State action by her conduct, respondent urges that imposition of a support obligation upon him under these circumstances constitutes State involvement sufficient to give vitality to his constitutional claim.

Assuming, without deciding, that sufficient State action is present in this case we conclude that respondent’s contentions fall short of stating any recognized aspect of the constitutional right of privacy.

Clearly, respondent has a constitutionally protected right to decide for himself whether to father a child (Carey v Population Servs. Int., 431 US 678; Eisenstadt v Baird, 405 US 438, 453). This right is deemed so fundamental that governmental interference in this area of decision-making may be justified only by compelling State interests (Carey v Population Servs. Int., supra, at p 686). Yet, the interest protected has always been stated in terms of governmental restrictions on the individual’s access to contraceptive devices (Griswold v Connecticut, 381 US 479; Eisenstadt v Baird, supra; Carey v Population Servs. Int., supra). It involves the freedom to decide for oneself, without unreasonable governmental interference, whether to avoid procreation through the use of contraception. This aspect of the right of privacy has never been extended so far as to regulate the conduct of private actors as between, themselves. Indeed, as the Appellate Division recognized, judicial inquiry into so fundamentally private and intimate conduct as is required to determine the validity of respondent’s assertions may itself involve impermissible State interference with the privacy of these individuals (see, also, Stephen K. v Roni L., 105 Cal App 3d 640).

The interest asserted by the father on this appeal is not, strictly speaking, his freedom to choose to avoid procreation, because the mother’s conduct in no way limited his right to use contraception. Rather, he seeks to have his choice regarding procreation fully respected by other individuals and effectuated to the extent that he should be relieved of his obligation to support a child that he did not voluntarily choose to have. But respondent’s constitutional entitlement to avoid procreation does not encompass a right to avoid a child support obligation simply because another private person has not fully respected his desires in this regard. However unfairly respondent may have been treated by petitioner’s failure to allow him an equal voice in the decision to conceive a child, such a wrong does not rise to the level of a constitutional violation.

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

Chief Judge Cooke and Judges Jasen, Jones, Fuchs-berg, Meyer and Simons concur.

Order affirmed, with costs.

       Family Court after a further hearing ordered respondent father to pay $790 per month toward the child’s support, whose needs had been found to require expenditures totaling $945 per month. Although the court expressed an intent to adhere to its prior determination that the mother should, so far as possible, bear the burden of support, an examination of the mother’s financial circumstances apparently convinced the court that she could not bear a large part of this burden without substantially diminishing her ability to meet her own needs. Respondent, on the other hand, stipulated to his ability to provide whatever amount of support the court ordered.


text:
    Arthur R. Silsdorf, Appellant, v Harry Levine et al., Respondents.
    Argued March 24, 1983;
    decided May 3, 1983

      POINTS OF COUNSEL

      Milton S. Teicher for appellant.
    I. The complaint states a cause of action. (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Guggenheimer v Ginsberg, 43 NY2d 268; Cianci v New Times Pub. Co., 639 F2d 54; Gertz v Robert Welch, Inc., 418 US 323; Buckley v Littell, 539 F2d 882; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969.) II. The defamatory letter is not privileged as an expression of opinion. The meaning of the words used is for the jury’s determination, as is the issue of malice. (Monitor Patriot Co. v Roy, 401 US 265; Rosenblatt v Baer, 383 US 75; Ocala Star-Banner Co. v Damron, 401 US 295; James v Gannett Co., 40 NY2d 415; Garrison v Louisiana, 379 US 64; Rovira v Boget, 240 NY 314; Rudin v Dow Jones & Co., 510 F Supp 210; Gurda v Orange County Pub. Div of Ottaway Newspapers, 81 AD2d 120; Raffa v Shilbury, 24 AD2d 814.) III. No constitutional privilege of immunity is attached to the publication of the defamatory letter. (New York Times Co. v Sullivan, 376 US 254; Brady v Ottaway Newspapers, 84 AD2d 226; Rand v New York Times Co., 75 AD2d 417.)

      Robert E. Zimet, Allen G. Reiter and Mark E. Herlihy for respondents.
    I. The campaign letter and the voluntary participation of the seven defendants in the political process deserve special constitutional protection. (New York Times Co. v Sullivan, 376 US 254; Ocala Star-Banner Co. v Damron, 401 US 295; Monitor Patriot Co. v Roy, 401 US 265; Gilbert v Goffi, 21 AD2d 517, 15 NY2d 1023; Gurda v Orange County Pub. Div. of Ottaway Newspapers, 81 AD2d 120.) II. The statements at issue consist of expressions of opinion which may not give rise to liability in a defamation action. (Gertz v Robert Welch, Inc., 418 US 323; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Holy Spirit Assn. for Unification of World Christianity v Sequoia Elsevier Pub. Co., 75 AD2d 523; Greenberg v CBS Inc., 69 AD2d 693; Cianci v New Times Pub. Co., 639 F2d 54; City Firefighters Union Local 28 v Duci, 104 Misc 2d 498.) III. Defendants’ use of the term “corruptness” in the campaign letter did not impute criminality to plaintiff — a point which is for the court to decide. (James v Gannett Co., 40 NY2d 415; Julian v American Business Consultants, 2 NY2d 1; Letter Carriers v Austin, 418 US 264; Greenbelt Pub. Assn. v Bresler, 398 US 6.) IV. By his pleadings, plaintiff has foreclosed himself from making a showing of actual malice, and, therefore, has no cause of action. (New York Times Co. v Sullivan, 376 US 254; Garrison v Louisiana, 379 US 64; Rosenblatt v Baer, 383 US 75.)
   OPINION OF THE COURT

Wachtler, J.

At issue on this appeal is the scope of constitutional protection to be afforded allegedly defamatory statements, expressed in the form of opinions concerning plaintiff’s performance while in public office. We hold that, in the procedural posture in which this case reaches us, plaintiff’s allegations are legally sufficient to state a cause of action for defamation. The complained of statements, although constituting opinions and therefore entitled to a measure of constitutional protection, may nevertheless form the basis for a defamation claim, inasmuch as plaintiff has alleged that the facts set forth by defendants in support of their opinions are false. Accordingly, defendants’ motion to dismiss for failure to state a cause of action should have been denied.

Plaintiff, an attorney admitted to practice in the State of New York, served as Mayor of the Village of Ocean Beach from 1956 until he lost his bid for reelection in 1978. During the course of the 1978 campaign, an open letter concerning plaintiff’s administration of the affairs of Ocean Beach was circulated to the village residents. Written upon the stationery of the Citizens Party of Ocean Beach, an unincorporated association which opposed plaintiff’s reelection, and signed by four former trustees of the village, the letter expressed concern over perceived conflicts of interest and improper conduct on the part of plaintiff in his capacity as Mayor and urged that plaintiff not be reelected.

Specifically, the letter states that plaintiff had found his public office increasingly helpful to his private law practice and that business promoters, seeing the opportunity to make money in Ocean Beach, “have found it pays to do business with the mayor”. In addition to the allegation that he unethically represented clients whose interests were adverse to those of the village residents, plaintiff was accused of flagrantly disregarding the authority of the village board of trustees, “by relieving the elected members of the Board of their assigned duties, resulting in one-man rule”, granting written authorization to a restaurant to bring excursion boats to Ocean Beach in violation of a village ordinance and permitting a lateral ferry to dock at 2:00 a.m. contrary to a board determination. The letter points out that plaintiff failed to intervene in a proceeding pending before the State Liquor Authority involving a particularly troublesome local bar. Rather than seeking to have the bar’s license suspended or revoked, plaintiff allegedly represented the bar in this proceeding. The letter also states that village residents had gone to court to prevent plaintiff from improperly issuing a commercial building permit to one of his private clients.

Having set forth these examples of plaintiff’s perceived misconduct in public office, the penultimate paragraph of the letter states: “There are many of us who recognize Arthur Silsdorf’s [plaintiff’s] service to the village in the past, and who have supported him in the past. But we also recognize that ‘power tends to corrupt, and absolute power corrupts absolutely’. There is no longer any question about the corruptness of Arthur Silsdorf’s administration of the affairs of the Village of Ocean Beach.” It is this paragraph upon which plaintiff’s action for defamation, brought after his reelection defeat, primarily focuses. Plaintiff’s complaint, asserting a cause of action against the four signatories of the letter, as well as the officers of the Citizens Party of Ocean Beach, alleges that defendants, through the letter, falsely charged plaintiff with criminal corruption, the sale of favors in his official capacity and corruptly profiting in his private law practice at the expense of the village. Defendants, it is further alleged, published these defamatory statements with actual malice, in that they knew or should have known that the statements made were untrue.

Defendants moved to dismiss the complaint upon the ground that it failed to state a cause of action in that the statements complained of were constitutionally protected expressions of opinion for which liability in defamation may not be imposed. Special Term’s order denying the motion to dismiss was reversed by the Appellate Division, with two Justices dissenting. A majority of the Appellate Division agreed with defendants that the complaint fails to state a claim for libel, because the alleged defamatory statements are nonactionable opinions. The court also noted that dismissal of the complaint was mandated upon the further ground that plaintiff’s claim of actual malice “falls by the wayside” in view of his failure to contest the facts upon which the opinions were based. We now reverse the order of the Appellate Division.

The issues raised on this appeal come before the court in the procedural posture of a motion to dismiss the complaint for failure to state a cause of action. Thus, we accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiff’s claim. If, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509).

Initially, we note the well-established principle that it is for the court to decide whether the statements complained of are “reasonably susceptible of a defamatory connotation”, thus warranting submission of the issue to the trier of fact (James v Gannett Co., 40 NY2d 415, 419; Mencher v Chesley, 297 NY 94, 100). The entire publication, as well as the circumstances of its issuance, must be considered in terms of its effect upon the ordinary reader. We have no difficulty in concluding that the statements identified by plaintiff as defamatory, hold him up to public disgrace and contempt so as to render them, if false, libelous (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379, cert den 434 US 969). Clearly, false statements that “it pays to do business with the mayor”, that plaintiff is profiting in his private law practice at the village’s expense and that his administration is corrupt, having great potential for injury to plaintiff’s reputation, are capable of being interpreted as defamatory.

•That the statements may be defamatory does not, of course, end our inquiry, for defendants have urged that the statements are constitutionally protected as expressions of opinion. Whether the statements constitute fact or opinion is a question of law for the court to decide (Rinaldi v Holt, Rinehart & Winston, supra, at p 381). Although che distinction between fact and opinion may be difficult to draw in some cases, the conclusory statements in defendants’ letter concerning plaintiff’s performance and qualifications as Mayor are clearly set forth in the form of opinion. As such, they are entitled to a certain measure of constitutional protection (Gertz v Robert Welch, Inc., 418 US 323, 339-340; Rinaldi v Holt, Rinehart & Winston, supra, at pp 380-381; Cianci v New Times Pub. Co., 639 F2d 54, 61-64). This extraordinary protection of possibly defamatory statements is justified by our commitment to the principle that free and open debate on matters of public concern is not to be discouraged by the spectre of the imposition of libel damages for the expression of a harsh or unpopular opinion.

Notwithstanding the importance of protecting this form of expression even to the extent of denying recompense for injury to an individual’s reputation, the immunity afforded the expression of opinion obtains only when the facts supporting the opinion are set forth (Rinaldi v Holt, Rinehart & Winston, supra, at p 381). The purpose of this requirement is to ensure that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw his own conclusions concerning its validity.

In the present case, defendants contend that they have set forth the facts supporting their published opinions concerning plaintiff and that they are therefore entitled to constitutional protection from liability for defamation. Defendants maintain that plaintiff has not challenged the accuracy of the letter’s factual statements, but has merely disputed the conclusions drawn by defendants from the stated facts. If this were as far as plaintiff’s allegations went, we would agree that the opinions complained of could not form the basis for a defamation cause of action. Plaintiff has not, however, limited his claim to the invalidity of the conclusions drawn by defendants regarding his performance and qualifications. Rather, his affidavit in opposition to the motion to dismiss assails virtually every statement of fact contained in the letter as either a “gross distortion” or “misrepresentation of fact”. Although it is unnecessary to describe every inaccuracy detailed by plaintiff, a few examples illustrate the nature of the factual disparities.

Defendants’ letter characterizes plaintiff’s administration as “one-man rule”, brought about by plaintiff’s disregard of the board’s authority and unilateral actions taken in violation of village ordinance and board directive. In response to these statements, plaintiff alleges that he did not, as stated in the letter, relieve board members of their responsibilities, thus thwarting the democratic process; rather, following a dispute, he merely withdrew authority he had previously delegated to board members and immediately delegated that authority to others. To the accusation that he allowed excursion boats to be brought to the village in violation of an ordinance, plaintiff responds that, in view of the questionable constitutionality of the ordinance, he and a village trustee had worked out a settlement with a restaurant that had been issued numerous summonses for violation of the ordinance, allowing it to honor its bookings for a given period of time. Further, defendants’ statement that plaintiff permitted a ferry to dock in violation of a board directive is alleged to be entirely untrue, inasmuch as plaintiff never authorized or permitted such landings.

Although plaintiff is accused of failing to intervene on behalf of the village in a pending State Liquor Authority proceeding, instead representing the bar, plaintiff points out that defendants’ implication that he had an obligation to take some action on behalf of the village is entirely without basis. Moreover, although he appeared as attorney of record for the bar to enter a “not guilty plea” and testified as a character witness for the bar’s owner, plaintiff otherwise had no involvement with the proceeding. Finally, plaintiff asserts that the State Liquor Authority proceeding was in no way related to the village or its ordinances and the complaint was eventually dismissed.

A final example of plaintiff’s efforts to demonstrate the false impressions created by defendants’ alleged distortions of fact involves the accusation that village residents took plaintiff to court to prevent him from improperly issuing a building permit to one of his clients. In sharp contrast to the implication that plaintiff unethically and perhaps illegally sought to benefit a client and thus misused his public office, plaintiff alleges that at the time the building permit was applied for, approved and issued, he did not represent the applicant in any capacity or for any purpose. Plaintiff’s involvement with the issuance of the permit was limited to confirming, as a matter of course, the building inspector’s approval of the application. Some time after the applicant had completed work under the permit, plaintiff prepared several leases for him. Thereafter, a local group attempted to have the building permit set aside, but the action was discontinued.

Clearly, the validity of the opinions expressed in the letter, as viewed by the average reader, could be affected by whether the facts as stated by defendants or those now alleged by plaintiff were before the reader. That being the case, plaintiff may be able to establish entitlement to recover damages for the defamatory opinions, assuming, of course, that he is able to demonstrate the falsity of the letter’s statements of fact and convince the triers of fact that the factual disparities would affect the conclusions drawn by the average reader regarding the validity of the opinions expressed.

Equally important to our determination of the sufficiency of plaintiff’s allegations is the nature of the opinions expressed by defendants. As noted, although expressions of opinion are constitutionally protected, accusations of criminal or illegal activity, even in the form of opinion, are not (see, e.g., Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, cert den 434 US 969, supra; Buckley v Littell, 539 F2d 882, cert den 429 US 1062; Cianci v New Times Pub. Co., 639 F2d 54, supra). Plaintiff contends that he stands accused of criminal corruption by the following statement in defendants’ letter: “There is no longer any question about the corruptness of Arthur Silsdorf’s administration of the affairs of the Village of Ocean Beach”. Defendants urge that this statement may not be interpreted as implying that plaintiff engaged in criminal behavior, particularly given the preceding reference to the oft-quoted aphorism of Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely”. We disagree and conclude that the statement, in the context of the entire publication, is susceptible of the interpretation offered by plaintiff. Prior to labeling plaintiff’s administration “corrupt”, defendants gave a detailed recital of plaintiff’s conduct while in public office, pointing out that business promoters had found that “it pays to do business with the mayor” and that plaintiff had attempted to issue a building permit improperly to a private client. The unmistakable import of such statements is that plaintiff misused his public office and acted illegally to promote the interests of his clients and thus of himself. We conclude that the statement might reasonably be interpreted by the average reader as charging plaintiff with illegal conduct while in office. Particularly given this aspect of the claimed defamation, plaintiff’s complaint must be deemed legally sufficient.

We note finally that defendants’ concern over undue limitations upon expression in the course of political campaigns is misplaced. Even privilege has its limitations and even a public figure in the midst of a political campaign is entitled to some degree of protection. It is true that our society places a high value on the uninhibited and open debate necessary for the responsible functioning of political processes, to the extent even of protecting some falsity to avoid creating a chilling effect upon that expression (New York Times Co. v Sullivan, 376 US 254, 279; Gertz v Robert Welch, Inc., 418 US 323, 340-341, supra). But sufficient protection is afforded defendants by virtue of the requirement that plaintiff prove actual malice. Plaintiff, as Mayor of the Village of Ocean Beach and participant in an election for that office, clearly is a “public official” for purposes of applying the New York Times rule. Thus, a constitutional prerequisite to plaintiff’s recovery is that he prove that defendants published the defamatory statements with actual knowledge that they were false or with reckless disregard for their truth or falsity (New York Times Co. v Sullivan, supra, at p 280).

Plaintiff’s complaint alleges the actual malice element of the defamation cause of action. In the present posture of this case, there is no reason to prevent plaintiff from attempting to prove that defendants published the letter with actual malice.

Accordingly, the order of the Appellate Division should be reversed, and the order of Supreme Court, New York County, denying defendants’ motion to dismiss the complaint reinstated.

Chief Judge Cooke and Judges Jasen, Jones, Fuchs-berg, Meyer and Simons concur.

Order reversed, with costs, and the order of Supreme Court, New York County, denying defendants’ motion to dismiss the complaint reinstated.


author: Meyer, J.

text:
    In the Matter of Windsor Park Associates, Respondent, v New York City Conciliation and Appeals Board, Appellant.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      Cullen S. McVoy and Ellis S. Franke for appellant.

      Gary M. Rosenberg for respondent.
   OPINION OF THE COURT

Meyer, J.

A tenant whose cancellation of his lease is governed by section 40 of the Code of the Rent Stabilization Association of New York City, Inc. (Code), and who prior to cancellation litigates the propriety of the hardship increase approved by the Conciliation and Appeals Board (CAB) is permitted to continue in occupancy at no increase in rent from the date on which he receives a copy of the CAB order on which he based his right to cancel until the expiration of the 60-day notice of cancellation required by the section, but is required to pay the increase for the period from its effective date as fixed by section 40 until the date on which he received the CAB order which triggers his cancellation notice. The order of the Appellate Division should, therefore, be modified by reinstating so much of the CAB order of June 28, 1979 as excused a canceling tenant from payment of the increase for the period specified above and should be otherwise affirmed, without costs.

The appeal requires interpretation of section 40 of the Rent Stabilization Code adopted pursuant to section YY516.0 of the Administrative Code of the City of New York. That section provides: “An application for the adjustment of a stabilization rent may be filed on any grounds specified herein. In the event no order is issued within thirty (30) days from the date of filing an application before CAB, the order adjusting the stabilization rent shall be effective as of such thirtieth day. In the event that an order is issued increasing the stabilization rent because of owner hardship, the tenant may, within thirty (30) days of his receipt of a copy of the order of the CAB, cancel his lease on sixty (60) days’ written notice to the owner. During said period the cancelling tenant may continue in occupancy at no increase in rent.”

Windsor Park Apartments is a 20-building complex consisting of 1,828 units. On March 27, 1975, the owner (Windsor Park Associates) filed with the CAB its application for a hardship increase of 20.77%. On October 15, 1976, the CAB issued its order approving an increase of 6% effective, as required by section 40, on April 27,1975, and a further increase of .31% effective April 27,1976. To review that determination, the tenants’ association instituted an article 78 proceeding in Queens County (hereinafter “the first Article 78 proceeding”). Enforcement of the CAB order was stayed pending decision in that proceeding. The decision ultimately rendered granted the petition and remanded to the CAB for further processing, including audit of the owner’s books by the tenants. On appeal by the landlord and the CAB to the Appellate Division, Second Department, that court stayed the Special Term order to the extent of authorizing the landlord to collect the increased rent, beginning with the January, 1977 payment, the increase, however, to be held in escrow pending determination of the appeal.

The Second Department affirmed and continued the escrow arrangement for future rents pending final determination of the issues in the proceeding (59 AD2d 121,138, n 3). On remand, the CAB on January 19, 1979 allowed a 6% increase effective April 27, 1975 but reduced that part of the increase effective April 27, 1976 to .21%. The order directed that the money held in escrow be applied to the retroactive rent payable by each tenant, any balance to be paid in 12 equal monthly installments, but should a tenant vacate after issuance of the order the balance of his or her arrears to become payable immédiately. It also noted, however, the right of tenants under section 40 to cancel within 30 days of the order, and stated that “Such tenant may remain in occupancy at no increase in rent until his vacature [sic].” The tenants then requested the CAB to reconsider that order and resolve the question whether a tenant who cancels after the hardship increase is responsible for the increase retroactively to its effective date. On June 28,1979, the CAB issued an opinion dated March 29, 1979, superseding the earlier order. In the opinion the CAB majority construed the words “[d]uring said period” in the last sentence of section 40 to excuse a tenant who canceled after receipt of a copy of the CAB order issued at the culmination of the first Article 78 proceeding from paying the increase “both prospectively and retroactively,” but also to excuse any tenant who had previously canceled his or her lease in reliance upon the CAB’s original order because to hold otherwise “would penalize the tenants for pursuing their rights to judicial review.” The CAB dissenters concluded that section 40 excused a canceling tenant only for the 60 days after his or her election to cancel.

The landlord then commenced the instant article 78 proceeding in Supreme Court, New York County, to review the CAB retroactivity determination. Special Term dismissed the petition, reasoning that section 40 was ambiguous and the construction of the CAB majority not irrational and that, therefore, he should defer to the agency’s construction. The Appellate Division, First Department, unanimously reversed, on the law and the facts, and granted the petition to annul the CAB determination. It held that determination arbitrary and capricious and wholly inconsistent with the language and intent of section 40, which, it held, gave the tenants the right to cancel as to future occupancy only and was never intended to permit a tenant by canceling to avoid paying the increase for the period of occupancy prior to cancellation.

On appeal to us the CAB argues that the result reached by the Appellate Division is not compelled by the language of section 40, that the Stabilization Code makes no provision for escrow deposits and that tenants should not be held retroactively liable for the increase because until conclusion of the first Article 78 proceeding they did not have the information necessary to decide whether to cancel. We conclude that the absence of provision in the Code section for escrow deposit is irrelevant in light of the Appellate Division’s authority under CPLR 5519 (subd [c]) to impose an escrow condition. We agree, though on somewhat different reasoning, with the Appellate Division’s conclusion that section 40 of the Code cannot be construed to relieve the tenant of the obligation to pay the approved increase for the period from its effective date to the date on which a canceling tenant receives a copy of the order which triggers his right to cancel, but conclude that the cancellation notice, if given within 30 days of the tenant’s receipt of a copy of the order, relieves the tenant of the obligation of paying the increase for the period from such receipt to the expiration of 60 days from the notice of cancellation. We, therefore, modify the Appellate Division’s order as indicated below.

The second sentence of section 40 makes any order adjusting stabilization rent effective on the thirtieth day after the filing of an application for adjustment, unless the order is issued within 30 days from filing. It makes no distinction between adjustments which increase and those which decrease, and does not differentiate between tenants who ultimately decide to cancel and those who do not. It is concerned only with effective date and not at all with tenants who later decide to cancel.

Cancellation is dealt with by the third and fourth sentences. The right to cancel is triggered by the tenant’s receipt of a copy of a CAB order authorizing an increase and is effectuated by the giving within 30 days thereafter of 60 days’ written notice. The giving of such notice permits the canceling tenant to “continue in occupancy at no increase in rent,” the measure of the excusal from payment of the increase being “[djuring said period.”

The CAB’s reading of the words “[djuring said period” is irrational for a number of reasons. First and most important, it renders the second sentence meaningless as to a tenant who cancels. The reason for making the adjustment order effective 30 days after application can only be so as not to penalize the applicant (owner or tenant) by continuing the prior rent (whether too low, as when an owner presents a hardship case, or too high, as when a tenant presents a case of rental in excess of market or failure to maintain services) for the often lengthy period required for CAB review. By reading “said period” to bridge not only from cancellation to the end of the 60 days’ notice but also the entire time back to the effective date mandated by the section, that mandate is ignored as to any tenant who ultimately cancels. In effect, the second sentence is construed as though it read “shall be effective as of such thirtieth day as to tenants who do not elect to cancel.” Something more than the CAB’s ipse dixit is necessary if the section is to be so interpreted (cf. Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

Second, to read “said period” (emphasis supplied) as did the CAB ignores the facts that the section speaks of two separate periods (30 days from filing in the second sentence; the period for giving of cancellation notice plus 60 days in the third sentence) and that only the latter period is related to cancellation. In effect, by bridging the time between the two periods it creates yet a third period, which cannot have been contemplated as within the words “said period,” referring as those words do to only one period.

Third, it ignores the relations between the third and fourth sentences, both of which deal with cancellation following an increase. Because that is so, the natural reading of “said period” in the fourth sentence dealing with the effect of cancellation is that it refers to the period described in the third sentence. Indeed, were the intent what the CAB has declared it to be, the words “[djuring said period” in the fourth sentence would be wholly superfluous.

Nor does the rationale of the CAB majority withstand analysis. The fact that a tenant cannot tell until after litigation has ended whether the increase approved by the CAB is what he will be required to pay is irrelevant. He knows from both the order and the section that the effective date of the increase is 30 days after the application was filed and that he has the right to cancel within 30 days of receipt of the original order. If he decides not to cancel but to litigate, he knows that his occupancy is at the increased rental and takes his chances on whether he will be successful in having it reduced. The Code by giving him the right to cancel protects him against having to pay a rental which he finds unacceptable; it does not protect him against having to make a choice between cancellation and litigation or against payment of the increased rental in consequence of unsuccessful litigation. It is the landlord, in case of an increase order, whom the Code protects from being penalized by the tenant’s right to judicial review, not the tenant.

That is not to say that by undertaking to test such an order a tenant forfeits his cancellation privilege, however. The stays granted by Special Term and the Appellate Division were sufficient to extend the privilege, as to any tenant who did not cancel following receipt of the original order, until receipt of any later order resulting from the litigation, provided only that proper cancellation notice was given within 30 days of receipt.

In one aspect, however, the Appellate Division appears to have misconstrued the section. Its opinion states “It is the future occupancy which the tenant has a right to cancel” (91 AD2d, at p 570 [emphasis in original]) and its order annuls the CAB determination in toto. The effect of its ruling, therefore, is to accord a canceling tenant relief from payment of the increase only during the 60-day notice period. However, the words “[d]uring said period” follow a sentence referring to a period consisting of the time from the tenant’s receipt of the order to his giving of cancellation notice plus the required 60 days’ notice. A canceling tenant is, therefore, relieved of paying the increase not only as to the time after notice is given but also as to the time prior to notice which the Code allows him for decision whether to cancel.

For the foregoing reasons, the order of the Appellate Division should be modified and the matter remitted to the CAB for determination of amounts due the petitioner in accordance with this opinion and, as so modified, should be affirmed, without costs.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified and matter remitted to Supreme Court, New York County, with directions to remand to the board for further proceedings in accordance with the opinion herein and, as so modified, affirmed, without costs.

      . The Appellate Division decision erroneously refers to it as a June 29,1979 order.

      . Either a tenant or the owner may apply for a rent adjustment (Administrative Code of City of NY, §§ YY51-6.0.2, YY51-6.0.3).