text:
    The People of the State of New York, Respondent, v Camilo Lopez, Also Known as Carlos Camilo Lopez, Appellant.
    Argued June 2, 1986;
    decided July 1, 1986

      APPEARANCES OF COUNSEL

      Beverly Van Ness and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

The Trial Judge denied defendant’s motion for a severance in the expectation that redaction of the codefendant’s confession would sufficiently protect defendant from prejudice through introduction of the confession. Although that decision when made may not have been an abuse of discretion as a matter of law, it is not final if on retrospective review by an appellate court it appears that impairments of defendant’s rights unforeseen when the original ruling was made have occurred (People v Cruz, 66 NY2d 61, 72; People v Payne, 35 NY2d 22; People v Fisher, 249 NY 419). A defendant is entitled to a new trial if events or evidence introduced during the trial materially reduce the probability that the redaction effectively afforded the protection it was intended to provide (People v Jackson, 22 NY2d 446; People v Burrelle, 21 NY2d 265; People v La Belle, 18 NY2d 405; see, People v Cruz, 66 NY2d, at p 73, supra), and defendant’s initial motion for severance preserves the question for our review (People v Boone, 22 NY2d 476).

Here, as in People v Jackson (supra), effectiveness of the redaction was all but negated by the Trial Judge’s slip of the tongue in using defendant’s name when referring to the codefendant’s "taped denial of knowledge that Camilo Lopez— I’m sorry. Strike that * * * Mas’ [codefendant’s] taped denial of knowledge that anyone was going to use a sawed-off rifle” (emphasis supplied). And any remaining effectiveness was destroyed when the People were allowed over objection to present evidence that the Spanish nickname of the third, unapprehended, participant, who according to the codefendant’s statement did not possess the rifle, meant "the one with the limp or gimpy,” and that defendant-did not walk with a limp, of which factors the Assistant District Attorney made full use in summation.

Thus, the testimony and the Trial Judge’s comment completely nullified the purpose of the redaction. And, as in Jackson (22 NY2d, at p 450, supra) and Bruton v United States (391 US 123, 137), the Trial Judge’s direction to "strike that” and her limiting instructions with respect to the codefendant’s confession were no "adequate substitute for [defendant’s] constitutional right of cross-examination.”

Moreover, the People’s argument that the error was harmless beyond a reasonable doubt does not withstand analysis. It is predicated on the identification of defendant by one of the four persons who were robbed or observed the robbers leaving the premises, the fact that when defendant was arrested three days later the murder weapon lay at his feet in the back seat of the car in which he was riding, and that he had then reached for the rifle with his left hand, there being evidence that the shooter was left-handed. But the inability until some 16 months after the incident of the one witness (out of four) who was able to identify defendant positively and the presence of three other persons in the car with defendant and the rifle when he was apprehended make it impossible to conclude that the denial of defendant’s right of confrontation of the codefendant was harmless beyond a reasonable doubt (People v Smalls, 55 NY2d 407; People v Boone, supra).

In view of that conclusion it is unnecessary to consider defendant’s further arguments.

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

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Victor Gotbaum, as Trustee of the District Council 37 Benefits Fund Trust, et al., Appellants, and Edward Ostrowski, as Trustee and Chairman of the Board of Trustees of the Uniformed Sanitationmen’s Association Retirees’ Welfare Fund and Uniformed Sanitationmen’s Association Compensation Accrual Fund, et al., Intervenors-Appellants, v Albert B. Lewis, as Superintendent of the Insurance Department of the State of New York, Respondent.
    Argued June 3, 1986;
    decided July 1, 1986

      APPEARANCES OF COUNSEL

      Bertram Perkel and Michael B. Golden for Victor Gotbaum, as Trustee of the District Council 37 Benefits Fund Trust, and others, appellants and intervenors-appellants.

      Gary Maitland, Stephen F. Gordon and Jeffrey L. Kreisberg for Albert Shanker, as Trustee of the United Federation of Teachers Welfare Fund, appellant.

      Harold L. Fisher, Charles G. Moerdler, Kenneth Fisher and Edward Tessler for Edward Ostrowski, as Trustee and Chairman of the Board of Trustees of the Uniformed Sanitation-men’s Association Retirees’ Welfare Fund, etc., and another, intervenors-appellants.

      Robert Abrams, Attorney-General (Calvin W Grannum, O. Peter Sherwood and Aven Rennie of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and order and judgment of Supreme Court, New York County, reinstated for the reasons stated in the dissenting opinion of Justice Max Bloom at the Appellate Division (110 AD2d 1, 11-17; see also, Matter of Howard Johnson Co. v State Tax Commn., 65 NY2d 726).

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


text:
    Riverside Research Institute, Plaintiff, and Warwick Investors, Appellant-Respondent, v KMGA, Inc., et al., Respondents-Appellants.
    Submitted May 27, 1986;
    decided July 1, 1986

      APPEARANCES OF COUNSEL

      Sherman J. Saxl for appellant-respondent.

      Arthur M. Handler and Michael M. Meadvin for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Warwick, a New York partnership which owns a commercial building located at 80 West End Avenue in Manhattan, commenced this action to recover rent due under a lease after the defendant tenant vacated the premises prior to the expiration of the lease. The Appellate Division, First Department, modified a judgment of the Supreme Court, New York County, entered upon a decision following a nonjury trial, by, among other things, reducing the amount of the judgment and requiring plaintiff to indemnify defendant for any payments that it is required to make to a sublessor. The Appellate Division, disagreeing with Trial Term, found that there was a surrender of the premises, thus terminating the obligation to pay rent. Plaintiff appeals as of right from the modification (CPLR former 5601); defendant appeals by permission of the Appellate Division.

A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated (Harris v Hiscock, 91 NY 340, 344; 2 Rasch, Landlord and Tenant § 859 [2d ed]; see, Gray v Kaufman Dairy & Ice Cream Co., 162 NY 388). As distinguished from an express surrender, a surrender by operation of law is inferred from the conduct of the parties (Bedford v Terhune, 30 NY 453, 463; Rasch, op. cit. § 859). Whether a surrender by operation of law has occurred is a determination to be made on the facts. We must determine whether the Appellate Division’s finding that there was a surrender or Trial Term’s findings that there was not more nearly comports with the weight of the evidence (Cohen and Karger, Powers of the New York Court of Appeals § 112 [rev ed]).

Review of the record establishes that defendant, acting in response to plaintiff’s request, gave plaintiff advance written notice that it was about to vacate the premises pursuant to an earlier "understanding.” Plaintiff thereafter physically assisted defendant in departing and billed defendant for nominal damages sustained in the move. These facts support the inference drawn by the Appellate Division that a surrender by operation of law has occurred.

The record also indicates that plaintiff had held itself out as the agent of a tenant which had subleased a portion of the building to the defendant and, therefore, was liable for the judgment against the defendant for unpaid rent on its sublease. An agent implicitly warrants its own authority to act and is liable for all damages which flow naturally from reliance upon its assertion of authority (Harriss v Tams, 258 NY 229, 234; Restatement [Second] of Agency §§ 329, 330).

Plaintiff was not entitled to recover an additional pro rata share of real estate taxes attributable to structural improvements made by another tenant, as recovery was expressly precluded by the very terms of the lease. Nor was plaintiff entitled to attorney’s fees (see, Hall & Co. v Orient Overseas Assoc., 56 NY2d 965, affg 84 AD2d 338, 341-342).

With respect to defendant’s appeal, we agree with the Appellate Division that the defendant is not entitled to judgment on its counterclaim, which sought $50,000 in accordance with the terms of an alleged oral modification of its lease. The testimony at trial clearly indicated that the payment was contingent on plaintiff’s ability to reach agreement with a third party on a new lease. Since such agreement was never reached, defendant cannot recover.

Finally, the trial court’s award of $6,150.43 in increased operating expenses, recoverable by plaintiff under paragraph (3) of the lease, is supported by evidence in the record, and, having been affirmed by the Appellate Division, must be sustained in this court.

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

Order affirmed, without costs, in a memorandum.


text:
    Norman A. Kaplan, Appellant, v Frederick M. Reuss, Jr., et al., as Executors of Archimedes Cervera, Deceased, Respondents.
    Argued May 29, 1986;
    decided July 1, 1986

      APPEARANCES OF COUNSEL

      Walter L. Rich and Frederick Z. Konigsberg for appellant.

      Richard G. Handler for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. We agree with the Appellate Division, for the reasons stated in the opinion by Justice Leon D. Lazer, that plaintiff is not entitled to enforce his attorney’s charging lien on the proceeds of the life insurance policy. Although plaintiff was not required to assert a counterclaim in prior litigation, by otherwise failing to timely assert the lien within a reasonable time after it attached, plaintiff waived his right to enforce the lien as a matter of law (see, Todd v Mutual Factors, 3 AD2d 537, 546, affd 4 NY2d 759).

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


text:
    In the Matter of State of New York (Insurance Department Liquidation Bureau), Appellant, v Public Employment Relations Board et al., Respondents. (Proceeding No. 1.) In the Matter of State of New York (Governor’s Office of Employee Relations), Appellant, v Public Employment Relations Board et al., Respondents. (Proceeding No. 2.)
    Argued May 28, 1986;
    decided July 1, 1986

      APPEARANCES OF COUNSEL

      C. Daniel Chill and Douglas E. Rowe for State Insurance Department Liquidation Bureau, appellant.

      Robert Abrams, Attorney-General (John Q. Driscoll, O. Peter Sherwood arid Peter H. Schiff of counsel), for Governor’s Office of Employee Relations, appellant.

      Anthony Cagliostro and Martin L. Barr for Public Employment Relations Board, respondent.

      John R. Mineaux for Civil Service Employees Association, Inc., respondent.
   OPINION OF THE COURT

Order reversed, with costs, and order of Supreme Court, Albany County, reinstated for the reasons stated in the dissenting memorandum by Justice Paul J. Yesawich, Jr., at the Appellate Division (114 AD2d 734, 736).

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


text:
    In the Matter of Bank Leumi Trust Company of New York, Respondent, v Joseph Liggett et al., Respondents, and Cosden Oil & Chemical Co., Appellant.
    Submitted June 30, 1986;
    decided July 1, 1986
   Motion to substitute an order of withdrawal of appeal herein in place of this court’s order of dismissal dated June 13, 1986 granted on consent of all parties, the dismissal vacated and the appeal withdrawn.


text:
    In the Matter of John Shirvell, Appellant, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Submitted April 21, 1986;
    decided July 1, 1986
   Motion to dismiss the appeal denied.


text:
    In the Matter of Herbert O. Therrian, Jr.
    Decided July 3, 1986
   OPINION OF THE COURT

On the court’s own motion, it is.determined that Honorable Herbert O. Therrian, Jr., is suspended, with pay, effective immediately, from his office of Justice of the Altona Town Court, Clinton County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    The People of the State of New York, Respondent, v Leslie G. Freeland, Appellant.
    Decided July 3, 1986

      APPEARANCES OF COUNSEL

      Edmund J. Hoffmann, Jr., for appellant.

      Benjamin J. Bucko, District Attorney (Robert C. Mulvey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

As a foundational requirement for the admission of breathalyzer test results in a prosecution under Vehicle and Traffic Law § 1192, the People must introduce evidence from which the trier of fact could reasonably conclude, inter alla, that the testing device was in proper working order at the time the test was administered to the defendant (People v Todd, 38 NY2d 755) and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions (People v Donaldson, 36 AD2d 37; People v Meikrantz, 77 Misc 2d 892).

People v Gower (42 NY2d 117) does not establish a contrary rule, despite its suggestion that it might be appropriate to shift the emphasis in such matters from "technical issues of admissibility of evidence to means for measuring its persuasive weight” (id., pp 121-122). We reserved decision in that case on the question presented here, namely, "whether or to what degree the People, in laying a foundation for admission of the results of individual tests, would have to establish that the breathalyzer device was in proper working order” (id., p 122).

We are presented in this case with a record devoid of any evidence to support the conclusion that the testing device was capable of producing an accurate result. Proof that the test operator was certified by the Health Department to conduct breathalyzer tests, while permitting the inference that the test was properly given (Vehicle and Traffic Law § 1194 [9]; see, People v Mertz, 68 NY2d 136) is not probative of the distinct foundational requirement concerning the accuracy of the machine. Similarly, the observations of the arresting officers and the results of the field sobriety test, while tending to show that the defendant was under the influence of alcohol, are no proof that the breathalyzer was capable of accurately discerning the critical distinction between a legally permissible blood alcohol content and that which is statutorily proscribed.

Thus, in the absence of any evidence from which the trier of fact could reasonably conclude that the test results were derived from a properly functioning machine using properly constituted chemicals, it was error to admit the test results and a new trial is required. We note that, on the state of this record, we have no occasion to determine what nature, quantity and quality of proof is required to establish these foundational requirements, because there was no such proof in this case.

The other argument raised by defendant in the lower courts, that his prior conviction under Vehicle and Traffic Law § 1192 (3), entered on his uncounseled guilty plea, was not a valid predicate for elevating the present charges to felonies, appears to have been abandoned on this appeal and, in any event, was properly rejected by the courts below. We have not been asked to consider the propriety of the trial court’s ruling that certain certificates, offered by the People in an effort to establish a proper foundation for the admission of the breathalyzer test result, were inadmissible under CPLR 4518. For that reason, and because those certificates are not in the record before us, we do not reach the issue.

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

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


text:
    Edgar Pauk, Appellant, v Board of Trustees of the City University of New York, Respondent.
    Decided July 3, 1986

      APPEARANCES OF COUNSEL

      Jonathan A. Weiss for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated by that court (111 AD2d 17). We add only that, had he prevailed on appeal in the prior article 78 proceeding, plaintiff could have been awarded the loss of salary he is currently seeking, calculated from the date he was no longer employed at Queens College to the date of reinstatement. Under CPLR 7806, the lost salary would have been "incidental to the primary relief sought by petitioner”, i.e., rescission of the letter terminating his employment and an order declaring him to be a tenured member of the Queens College faculty (cf. Matter of Schwab v Bowen, 41 NY2d 907, 908 [damages could not be awarded because primary relief of reinstatement was no longer available to which damages would have been incidental]; but cf. also, Davidson V Capuano, 792 F2d 275 [compensatory and punitive damages and attorney’s fees plaintiff is seeking under 42 USC § 3988 cannot be deemed incidental to relief plaintiff was swa^fied in prior article 78 proceeding]). Whether damages are "incidental to the primary relief sought” depends upon the facts of the case (see, Matter of Schwab, supra).

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

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


text:
    Murray Papell, Appellant, v Sal Calogero, Individually and Trading as World Wide Hobby and as President of World Wide Hobby, et al., Defendants, and Bridon Realty Co., Respondent.
    Decided July 3, 1986

      APPEARANCES OF COUNSEL

      Murray Papell, appellant pro se.

      David W. Silverman and Robert M. Lefland for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to plaintiff, and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with this memorandum, and, as so modified, the order should be affirmed.

Our examination of the record persuades us that the Appellate Division erred in concluding that there was insufficient evidence, as a matter of law, of the existence of a valid contract. The Statute of Frauds was waived by defendant by its failure to assert it in a timely manner (see, CPLR 3211 [e]). Hence, plaintiff’s testimony, combined with the document signed by the codefendant, sufficed to sustain the jury’s verdict against the claim of insufficiency. Similarly, there was sufficient evidence to support the remaining elements necessary to the compensatory portion of the award (see generally, Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183; PJI 3:56). Accordingly, this part of the case must be remitted to the Appellate Division for that court to exercise its power to review the facts to determine if the verdict was against the weight of the evidence (see, Cohen v Hallmark Cards, 45 NY2d 493).

As to plaintiff’s claim for punitive damages, however, we agree with defendant that the award was not supported by sufficient evidence and must be dismissed (see, James v Powell, 19 NY2d 249; Walker v Sheldon, 10 NY2d 401).

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

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


text:
    The People of the State of New York, Respondent, v Jorge Betancourt, Appellant.
    Decided July 3, 1986

      APPEARANCES OF COUNSEL

      Stephanie T. Knowles and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division applied the correct standard for appellate review of the legal sufficiency of a wholly circumstantial evidence case. The evidence adduced at trial must be viewed in the light most favorable to the prosecution, giving it the benefit of every reasonable inference to be drawn therefrom, and the court reviewing the jury verdict must "determine whether the jury reasonably concluded” that the defendant’s guilt was proven to a moral certainty (People v Marin, 65 NY2d 741, 742; People v Giuliano, 65 NY2d 766, 768). Moreover, we agree with the Appellate Division that the circumstantial evidence was sufficient to support the jury’s verdict of guilty of burglary in the third degree and criminal mischief in the fourth degree (see, People v Bay, 67 NY2d 787; People v Levine, 65 NY2d 845).

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

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


text:
    Kevin Haran, an Infant, by Gerald Haran, His Father and Natural Guardian, et al., Respondents, v Union Carbide Corporation, Appellant, et al., Defendant. (And a Third-Party Action.)
    Decided July 3, 1986

      APPEARANCES OF COUNSEL

      Robert E. Crotty and Neil Merkl for appellant.

      Owen McGivern, J. Peter Coll, Jr., and Susan J. Eliot for respondents.
   OPINION OF THE COURT

Memorandum.

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

This products liability action was brought for injuries sustained by one of the plaintiffs after being sprayed with insect repellent manufactured by defendant. Plaintiffs, alleging that ethyl alcohol fumes from the insect repellent ignited upon a discharge of static electricity from a television set, claim both that defendant’s product was defectively designed and that defendant failed adequately to warn of the dangers in using the product.

At trial, evidence was admitted over defendant’s objection that, subsequent to the manufacture of the can of insect repellent involved in the accident, but prior to the accident itself, defendant changed the label placed on cans of insect repellent to make the warning contained thereon more comprehensive. This was reversible error. As this court explained in Cover v Cohen (61 NY2d 261, 270-271), evidence of a manufacturer’s postmanufacture, preaccident modification is not admissible to establish fault in a strict products liability case based upon a defect in design or failure to warn. We noted two limited exceptions to the rule: where the plaintiff seeks to establish the feasibility of design alternatives and where the postmanufacture modification is relevant to establish the manufacturer’s failure to warn of a known risk or defect. Neither of these is applicable in this case.

Feasibility was never in issue and, indeed, it is obvious that the modification of a warning label presents none of the difficulties typically involved in feasibility questions (compare, Opera v Hyva, Inc., 86 AD2d 373, 375; Bolm v Triumph Corp., 71 AD2d 429, 437, lv dismissed 50 NY2d 928). Nor was evidence of the modified warning label admissible as bearing on the continuing duty to warn. There was no evidence that, at any time prior to the accident, defendant was put on notice of a danger or defect in the product and, clearly, the modification itself cannot be received as an admission that defendant knew that the original warning label was inadequate (see, Cover v Cohen, supra, at pp 274-275).

The trial court’s instruction to the jury on "products defect” was also error. The charge failed to apprise the jury that, in order to determine whether defendant’s product as marketed was reasonably safe for its intended use, the product’s risks must be balanced against its utility and affordability, and against the risks, utility and costs of alternatively designed products (see, Cover v Cohen, supra, at pp 266-267; Voss v Black & Decker Mfg. Co., 59 NY2d 102, 109; PJI 2:141 [1986 Supp]).

We do not, however, find error in the trial court’s ruling with regard to proof of future medical consequences of the injuries in question (see, Matott v Ward, 48 NY2d 455, 461; Richardson, Evidence § 372 [10th ed]).

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

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


text:
    In the Matter of Roy M. Cohn, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted July 1, 1986;
    decided July 3, 1986
   Motion for leave to appeal and for a stay denied.


text:
    In the Matter of Kathy G. J., Respondent, v Arnold D., Appellant.
    Submitted June 9, 1986;
    decided July 3, 1986
   Petitioner’s motion for leave to appeal and respondent’s cross motion for leave to appeal and for a stay each dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    William Kratenstein, Appellant, v Helen Kratenstein et al., Respondents.
    Submitted May 19, 1986;
    decided July 3, 1986
   Motion insofar as it seeks leave to appeal as against defendant Kratenstein dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Motion insofar as it seeks leave to appeal as against defendant Donlin denied (see, Cohen and Karger, Powers of the New York Court of Appeals § 20).

Twenty dollars costs and necessary reproduction disbursements to respondents.


text:
    Yvonne McCain et al., on Behalf of Themselves and Their Children and All Others Similarly Situated, Respondents, and Linda James et al., on Behalf of Themselves and Their Children and All Others Similarly Situated, Intervenors-Respondents, v Edward I. Koch, as Mayor of the City of New York, et al., Appellants, et al., Defendant.
    Submitted July 1, 1986;
    decided July 3, 1986
   Motion to vacate statutory stay denied as unnecessary upon the ground that CPLR 5519 (a) (1) does not operate to effect a stay where, as here, the appellants have filed an affidavit of intention to move for permission to appeal from a nonfinal order of the Appellate Division from which no appeal lies to this court.


text:
    In the Matter of Anthony J. McNulty et al., Appellants, v New York State Tax Commission, Respondent.
    Submitted June 23, 1986;
    decided July 3, 1986
   Appeal dismissed, without costs, by the court sua sponte, upon the ground that no substantial constitutional question is directly involved (see, CPLR 5514 [a]).


text:
    The People of the State of New York ex rel. Sam Polur, on Behalf of Arthur Johnson, Appellant, v John Cunningham, as Warden of Bronx Men’s House of Detention, Respondent.
    Submitted June 23, 1986;
    decided July 3, 1986
   Appeal transferred, without costs, to the Appellate Division, First Department, by the court sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b3; CPLR 5601 [b] [2]).


text:
    Elizabeth Vermette, as Administratrix of the Estate of Joseph F. Vermette, Deceased, Respondent, v Kenworth Truck Company, a Division of Paccar, Inc., Respondent, and Green Truck Supply, Inc., Appellant. (And Two Third-Party Actions.)
    Argued June 3, 1986;
    decided July 8, 1986

      APPEARANCES OF COUNSEL

      Jane D. Martini for appellant.

      Richard A. Kohn for plaintiff-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant Green Truck Supply’s motion for summary judgment granted. Certified question answered in the affirmative.

We agree with the dissenting memorandum of Justice John T. Casey at the Appellate Division (111 AD2d 448, 450) that in light of the evidentiary proof tendered by Green in support of its motion, plaintiff was required to tender proof in admissible form to establish the existence of a triable issue of fact. Plaintiff’s attorney’s affidavit, which merely alleges in conclusory form that such proof exists but fails to tender it in opposition to the motion or to offer an excuse for such failure, was patently insufficient for that purpose (Zuckerman v City of New York, 49 NY2d 557). Moreover, we note that plaintiff did not controvert Green’s proof that it had "no written or oral agreement * * * [with the] employer of plaintiff’s decedent * * * to provide routine or systematic maintenance on [its] vehicle”.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Joseph Jones, Appellant.
    Decided July 8, 1986

      APPEARANCES OF COUNSEL

      Charles L. Finke and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

Lengthy postreadiness delays attributable to defendant do not constitute an "exceptional fact or circumstance” within the meaning of CPL 30.30 (3) (b) sufficient to excuse adjournments resulting from the trial assistant’s planned European vacation. Such an adjournment, here amounting to 28 days, is clearly chargeable to the People (see, e.g., People v Warren, 85 AD2d 747 [shortage of personnel]; People v McCaffery, 78 AD2d 1003 [illness of prosecutor]), especially, as here, where the record suggests that another trial assistant could have been substituted.

Nor do defendant’s postreadiness delays, even though totaling some 17 months, constitute an exceptional circumstance within the meaning of CPL 30.30 (3) (b). "[I]t is the People’s delay alone that is to be considered, except where that delay directly 'results from’ action taken by the defendant” (People v Anderson, 66 NY2d 529, 536). Here, although defendant was responsible for substantial periods of postreadiness delay, the People were also chargeable with 164 days of prereadiness delay, and there simply is no causal relationship between defendant’s postreadiness delay and the trial assistant’s vacation; nor is there any claim of bad faith on defendant’s part. The People are, thus, chargeable with 192 days delay (164 plus 28), which exceeds the six months allowed by CPL 30.30 (1) (a).

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

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


text:
    In the Matter of Leon V. Burns, Respondent, v Angel L. Quinones, as Administrator of Morrisania Neighborhood Family Care Center, et al., Appellants.
    Decided July 8, 1986

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Alfred Weinstein of counsel), for appellants.

      Joan Stern Kiok for respondent.
   OPINION OF THE COURT

Memorandum.

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

Respondent, New York City Health and Hospitals Corporation (NYCHHC), is a public benefit corporation charged with the responsibility of operating various hospitals and health care facilities in New York City (New York City Health and Hospitals Corporation Act, L 1969, ch 1016, § 1, McKinney’s Uncons Laws of NY § 7381 et seq.).

Until respondent terminated him for misconduct on June 20, 1984, petitioner was the director of security for the Morrisania Neighborhood Family Care Center, a facility in The Bronx operated by the corporation. Although the respondent reviewed the written charges and evidence against petitioner in the termination review procedure applicable to all managerial employees pursuant to the NYCHHC operating procedures, petitioner claims that he was also entitled to the additional protections of notice and hearing set forth in Civil Service Law § 75 because he is an honorably discharged veteran. That statute guarantees rights to honorably discharged veterans who hold a position by "permanent appointment or employment in the classified service of the state or * * * any authority”. Respondents contend that its managerial employees — and petitioner concedes he is a managerial employee — are not part of the "classified service” or civil service system and therefore that Civil Service Law § 75 does not apply.

Whether a public benefit corporation is subject to civil service requirements depends upon several factors including whether the Legislature makes the Civil Service Law applicable, how independent the corporation is of the government, and whether the corporation performs traditional or essential governmental functions (see, Collins v Manhattan & Bronx Surface Tr. Operating Auth. [MABSTOA], 62 NY2d 361). In this case, the Legislature did not expressly exempt the NYCHHC from the dictates of the Civil Service Law. However, the legislative intent to exclude managerial employees from rules "consistent with civil service law” is implicit in Unconsolidated Laws §§ 7385 (12) and 7390 (1) (NYCHHC Act § 5 [12]; § 9 [1]), which grant the NYCHHC the authority to make personnel rules and regulations with respect to employees other than managerial employees, as long as such rules are consistent with Civil Service Law.

The statute creating NYCHHC gives the corporation authority to employ executive and management personnel (Uncons Laws §7385 [11] [NYCHHC Act §5 (11)]) and "such other employees” as necessary (Uncons Laws § 7385 [12] [NYCHHC Act § 5 (12)]). With respect to the latter "Group 12” employees, the corporation was specifically required to promulgate rules and regulations relating to the terms and conditions of employment generally and also rules and regulations relating to appointments, promotions, transfers, demotions and removal "consistent with civil service law” (Uncons Laws § 7390 [1] [NYCHHC Act § 9 (1)]). These requirements did not apply to "Group 11” or managerial employees and no analogous requirement for "Group 11” employees is to be found elsewhere in the act. The cases cited by petitioner to support his claim involved either managerial employees who were members of the classified service (see, Matter of Mercer v Dowd, 288 NY 381; Matter of Meenagh v Dewey, 286 NY 292; Matter of Fornara v Schroeder, 261 NY 363), or an employee of an authority specifically subject to the provisions of the Civil Service Law (see, Matter of Driscoll v Troy Hous. Auth., 6 NY2d 513). Petitioner’s attempt to interpret the broad scope of section 75’s protection for honorably discharged veterans to extend to managerial employees of respondent corporation is defeated by the act’s override provision (Uncons Laws § 7405 [NYCHHC Act § 24]) which renders inapplicable any inconsistent law.

That the Legislature was aware of the necessity for this distinction between "Group 11” and "Group 12” employees appears among its several stated purposes for enacting the legislation, specifically to promote "managerial flexibility” (Uncons Laws § 7382 [NYCHHC Act § 2]) and from reports contained in the bill jacket which show that this flexibility was deemed desirable for the new authority in view of the difficulty the city hospitals were having in attracting qualified middle management personnel because of budgetary and civil service restrictions (see, Matter of Greenpoint Hospital and Municipal Hospitals of New York City [New York State Department of Health, May 15, 1969, Report of Hearing Officer Ambrose P. Donovan]).

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

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


text:
    The People of the State of New York, Respondent, v Theresa Kirk, Appellant.
    Decided July 8, 1986

      APPEARANCES OF COUNSEL

      John F. Middlemiss, Jr., and George Grun for appellant.

      Patrick Henry, District Attorney (Michael J. Miller of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for reasons stated in the memorandum of the Appellate Division (115 AD2d 758). Unlike People v Briggins (50 NY2d 302), there was here a fraudulent intent.

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


text:
    The People of the State of New York, Respondent, v Ronald J. Bigus, Appellant.
    Decided July 8, 1986

      APPEARANCES OF COUNSEL

      John F. Middlemiss, Jr., and George Grun for appellant.

      Patrick Henry, District Attorney (Michael J. Miller of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for reasons stated in the memorandum of the Appellate Division (115 AD2d 751). Unlike People v Briggins (50 NY2d 302), there was here a fraudulent intent.

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


text:
    The People of the State of New York, Respondent, v David Paul Smith, Appellant.
    Decided July 8, 1986

      APPEARANCES OF COUNSEL

      Richard Hamburger for appellant.

      Denis Dillon, District Attorney (Douglas Noll of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

The record is devoid of evidence that defendant was informed that trial and sentencing would proceed in his absence. Although defendant was advised by counsel that pretrial hearings were scheduled to commence on a certain date and the trial thereafter, there is no indication in the record that defendant was warned of the consequences of his failure to appear. Hence, there is no basis for finding a "voluntary, knowing and intelligent waiver of the right to be present at trial” and sentencing (People v Parker, 57 NY2d 136, 141).

Additionally, defendant’s conduct did not "unambiguously indicate a defiance of the processes of law” sufficient to constitute a forfeiture (People v Sanchez, 65 NY2d 436, 444). Defendant did not leave the courtroom after trial had begun nor did he abscond shortly after being informed that trial was ready to begin (compare, People v Corley, 67 NY2d 105; People v Smith, 66 NY2d 755; People v Sanchez, supra). Rather, the record indicates only that, several days in advance, defendant was informed of the date the proceedings were to commence, and that he failed to appear.

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

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


text:
    Diana Angulo, Respondent, v Security Mutual Life Insurance Company of New York, Appellant.
    Submitted June 9, 1986;
    decided July 8, 1986
   Judge Titone taking no part.


text:
    Anthony J. Congello et al., Appellants, v Hospital of the Albert Einstein College of Medicine et al., Respondents.
    Decided July 8, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the unanimous order of the Appellate Division, absent direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    Cosmo Realty Corp. et al., Appellants, v Yvonne Scruggs-Leftwich, as Commissioner of the New York State Division of Housing and Community Renewal, et al., Respondents, and City of Mount Vernon, Intervenor-Respondent.
    Submitted May 27, 1986;
    decided July 8, 1986
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.


text:
    Gabriel Gabrelian, Appellant, v Lillian Gabrelian, Respondent.
    Submitted June 2, 1986;
    decided July 8, 1986
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1). Motion for poor person relief dismissed as academic.


text:
    Sarah Lagary et al., as Administrators of the Estate of Robert Lagary, Deceased, Respondents, v Wiener Management, Appellant.
    Submitted June 9, 1986;
    decided July 8, 1986
   Motion for leave to appeal and for a stay granted. Case to be considered with appeals in Amsterdam, Manhattan Assoc. v Leichtman, Be Kovessey v Coronet, and Lipkowitz v Coronet.


text:
    Gerald I. Reich et al., Respondents, v Bankers Life and Casualty Company of New York et al., Appellants. (And Another Action.)
    Submitted May 19, 1986;
    decided July 8, 1986
   Motion by plaintiffs for leave to appeal denied, with $20 costs and necessary reproduction disbursements.


text:
    Donald Wilkinson, Appellant, v Francis J. Sukiennik et al., Defendants, and Robert Hoelscher, Respondent.
    Submitted June 2, 1986;
    decided July 8, 1986
   Motion for leave to appeal and for a stay denied.


text:
    The People of the State of New York, Respondent, v Robert L. Dumas, Appellant. The People of the State of New York, Respondent, v Felix Fausto, Also Known as Fausto Felix, Appellant.
    Argued May 30, 1986;
    decided July 10, 1986

      APPEARANCES OF COUNSEL

      Robin J. Nichinsky and Philip L. Weinstein for appellants.

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

Memorandum.

The orders of the Appellate Term should be reversed and the orders of the Criminal Court should be reinstated.

We agree with the Criminal Court that the misdemeanor complaints are facially insufficient.

In the Dumas case the factual portion of the complaint simply states: "Deponent is informed by an undercover police officer of the New York City Police Department, Shield Number 6938, who is known to the deponent, that defendant knowingly and unlawfully sold to informant marijuana to wit: 2 clear plastic bags of marijuana, for a sum of United States currency”. The complaint in the Fausto case is similar.

The factual part of a misdemeanor complaint must allege "facts of an evidentiary character” (CPL 100.15 [3]) demonstrating "reasonable cause” to believe the defendant committed the crime charged (CPL 100.40 [4] [b]).

In each case the complaint contains a conclusory statement that the defendant sold marihuana, but in neither case is this supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually marihuana. There is, for instance, no allegation that the police officer is an expert in identifying marihuana (cf. People v Kenny, 30 NY2d 154), nor any allegation that the defendant represented the substance as being marihuana. Neither are any additional facts provided by the supporting depositions in which the undercover police officer merely adopts the statements alleged in the complaints.

We note that this is not a pleading defect. The misdemeanor complaint is designed to provide the court with sufficient facts for the court to determine whether the defendant should be held for further action (People v Weinberg, 34 NY2d 429). If found to be sufficient on its face, the misdemeanor complaint alone may serve as the basis for issuing an arrest warrant (CPL 120.20 [1]) and the requirement for factual allegations of an evidentiary character establishing reasonable cause should be assessed in that light.

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

Order reversed and order of the Criminal Court of the City of New York, New York County, reinstated in a memorandum.


text:
    Imperial Outfitters to Large Men, Inc., Plaintiff, v Genesco, Inc., Appellant, and 48-48 Associates, Inc., Respondent.
    Decided July 10, 1986

      APPEARANCES OF COUNSEL

      J. Christopher Jensen for appellant.

      David F. Segal for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (95 AD2d 755). We add that defendant Genesco’s claim that defendant 48-48 Associates, Inc. is collaterally estopped from litigating the proper interpretation of the lease language in this cross claim because of the judicial interpretation previously made in plaintiffs action is without merit since 48-48 Associates did not have a full and fair opportunity to litigate the issue in the prior proceedings (see, Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 72-73; see also, Restatement [Second] of Judgments § 28 [1]).

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


text:
    The People of the State of New York, Respondent, v Girven Leung, Appellant.
    Decided July 10, 1986

      APPEARANCES OF COUNSEL

      Abraham L. Clott and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

While on plain-clothes duty and patrolling, in an unmarked car, an area of Queens known for its narcotics activity, Police Officers Leo, Harvey and DeLavan observed defendant and another man in conversation and saw defendant pass his companion a three- by five-inch brown envelope which appeared to resemble “three dollar bags” used in drug transactions. Officers Leo and Harvey left the unmarked car and identified themselves as police officers. Defendant immediately fled, with Officers Leo and Harvey in pursuit. As he ran, defendant discarded a hat, and then threw a black object under some bushes. Defendant stopped running and was apprehended by Officer Leo at a spot approximately five houses from where the pursuit began. The black object thrown by defendant was recovered from nearby bushes and was found to be a loaded, operable nine-millimeter pistol. On appeal, defendant contends that the initial police action was an investigatory stop, and that neither police observation of the passing of a manila envelope, nor defendant’s exercise of his constitutional right to leave without answering questions, provided police with a reasonable suspicion that he had committed, or was about to commit, a crime.

In People v De Bour, we held that judicial review of the legality of police conduct must weigh the interference such conduct entails against the precipitating and attendant conditions known to the police as the encounter unfolds (People v De Bour, 40 NY2d 210, 223; see also, People v Stewart, 41 NY2d 65). We set forth a synopsis, representing the gradation of permissible police authority in encounters with citizens in public places, that correlated the degree of the officer’s objectively credible belief with the permissible scope of his intervention (People v De Bour, supra, p 223). The present case presents a situation wherein the level of police intrusion was an appropriate response to the observations and beliefs of the officers involved.

Although in exiting their unmarked car and identifying themselves as policemen the officers may have intended to seek explanatory information from defendant, or to detain him, there is no evidence that, prior to defendant’s flight, the police did anything more than approach him. The fact that defendant passed what appeared to be a "three dollar bag” in a neighborhood known for its drug activity constitutes, at the least, the "objective credible reason” necessary to support the intrusion attendant to a police approach of a citizen (see, id.). When coupled with defendant’s immediate flight upon the officer’s approach, the passing of the manila envelope in this narcotics-prone neighborhood establishes the necessary reasonable suspicion that defendant had committed, or was about to commit a crime, such that pursuit by the officers was justified (see, People v Howard, 50 NY2d 583, 592; People v Corrado, 22 NY2d 308, 313-314; compare, People v McRay, 51 NY2d 594, 604 [glossine envelopes]).

Given that the initial approach and the subsequent pursuit and detention of defendant constituted legitimate, justifiable police conduct, manifestly the recovery of the gun discarded during flight was also lawful. The weapon was produced and thrown by defendant himself after he had already discarded his hat (compare, People v Boodle, 47 NY2d 398, 402). Defendant’s argument that the People failed to prove his intent to abandon the gun is inapposite, as such analysis is employed only in situations involving an apparently discarded container which is opened by police without consent, searched and found to contain contraband (see, e.g., People v Howard, supra; People v Baldwin, 25 NY2d 66; compare, People v Boodle, supra). Thus, it cannot be said that defendant’s attempt to rid himself of the gun was the direct result of "precipitous and unlawful police action” (People v Boodle, 47 NY2d 398, 402-404, supra; People v Wilkerson, 64 NY2d 749, 750-751). The lawful discovery of the gun during defendant’s detention by police constituted probable cause to arrest him on the weapons charge.

Defendant’s additional contentions, that prosecutorial misconduct and an erroneous supplemental charge require reversal, are without merit. It suffices to note that the Trial Judge’s instruction on "possession” was an accurate statement of the law, albeit confusing, and merely stated that, if the defendant threw a black object, he had possession of that black object within the meaning of Penal Law § 10.00 (8).

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

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


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v John Smith, Appellant.
    Argued May 27, 1986;
    decided July 10, 1986

      APPEARANCES OF COUNSEL

      Jeffrey Stein and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Prior to jury selection in this case, defendant moved to proceed without representation of counsel. Without determining whether this request was knowingly and intelligently made, the trial court initially granted the motion, but thereafter ordered assigned counsel to take part in the proceeding after defendant indicated his intention to remain mute.

"A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right of counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” (People v McIntyre, 36 NY2d 10, 17; see, Faretta v California, 422 US 806). When the right is timely interposed, the trial court should conduct a thorough inquiry to determine whether the waiver was made intelligently and voluntarily (People v McIntyre, 36 NY2d, at p 17, supra). Likewise, when "a court feels that the motion is a disingenuous attempt to subvert the overall purpose of the trial * * * the proper procedure is to conduct a dispassionate inquiry into the pertinent factors” (People v McIntyre, 36 NY2d, at p 19, supra).

Here, the trial court rejected, out of hand, defendant’s timely request to proceed pro se without determining whether it was knowingly or intelligently made or whether it was a good-faith attempt to exercise his "right * * * to determine his own destiny” (People v McIntyre, 36 NY2d, at p 14, supra). Additionally, the court compelled assigned counsel to participate and to take specific actions with respect to the conduct of the trial, under threat of contempt, despite defendant’s contrary directions and repeated objections. By so doing, the trial court denied defendant his constitutional right to present his own defense (see, Faretta v California, 422 US 806, 835-836, supra; People v Vivenzio, 62 NY2d 775, 776; People v Davis, 49 NY2d 114, 120).

Kaye, J.

(dissenting). I cannot agree that, factually, defendant’s several statements constituted a timely and unequivocal assertion of a right of pro se representation. Moreover, if defendant’s conviction is to be upset on this basis, then denial of his right to put in no defense requires a commensurate remedy — that any retrial go forward with no defense. I would affirm the order below, and therefore respectfully dissent from the majority’s holding both that the conviction must be overturned and that defendant must be granted a new trial at which he now can choose to be represented by counsel.

Defendant was convicted, after a jury trial, of two counts of murdering an off-duty police officer as well as other crimes. By the time of trial defendant — who had prior experience with the criminal justice system — had been represented for approximately a year and a half, through pretrial proceedings, by Legal Aid attorneys Lawrence Halfond and Peter Purvis. Indeed, Legal Aid had apparently never before been assigned to a homicide case in Queens County and the Judge felt that for policy reasons he was unable to make the assignment, but defendant indicated that he would not cooperate with any attorney other than Halfond, and the head of the Legal Aid office consented to this deviation from policy. At his arraignment January 24, 1975 defendant declared that he would not have any 18-B lawyer and, referring to Halfond, said: "Me and this man have a pretty good understanding. We’re well affiliated with each other, and he understands what’s happening, and I want him, Mr. Lawrence Halfond. He has put an awful lot of time and research in this case and helping me, and I would like him to continue.”

On the morning of January 22, 1976, counsel for both sides, the court and a panel of 75 prospective jurors assembled to start the trial. Word came that defendant refused to appear. At the afternoon session, the following occurred:

"mr halfond: If your Honor pleases, after an extensive interview with my client, extending over approximately two hours, I have been authorized to read the following statement into the record. Dated, of course, today’s date, at the Queens House of Detention, at approximately 12:20 p.m., in the Counsel Room.

“ Tt is my specific and pointed direction to my counsel, Lawrence Halfond, Esq., and Peter D. Purvis, Esq., of counsel to William J. Gallagher, that they not participate in any fashion in the trial of indictment number 1430 of 1974. I have specifically instructed Mr. Halfond and Mr. Purvis not to be present at any stage of the proceeding. I have given this matter a great deal of consideration and have arrived at my conclusion, as above indicated, after my counsel fully explained that my actions might be considered as a knowledgeable and voluntary waiver of my right to be present at the trial of the indictment. I feel that my constitutional rights have been abridged and trampled upon by the Queens District Attorney’s Office and Mr. Justice Farrell, to the point where it is impossible for me to receive a fair and impartial trial as guaranteed by the Constitution of the United States and the State of New York. I am innocent of the charges, but I have already been convicted in the press. I want to make it absolutely clear that I am not a Black Muslim or a member of any Black Activist Groups, such as the BLA; but on the contrary, I am a firm believer in the Constitution of the United States and the laws of this country, but I believe that I am being railroaded here and that I am not receiving the equal protection of the laws, nor am I receiving due process of law.’ ” Counsel then asked permission to withdraw or sit mute, which the court denied, and the matter was briefly recessed. When trial commenced on February 3, defendant announced to the court that neither he nor his counsel would participate. He asked “to have them excluded as well as myself.” Defendant said he had no faith in the whole system, especially in Queens County, where everyone was under hypnosis by the District Attorney: "You formulate[d] your opinions, you passed judgment against me already. You know what you are going to do, so, therefore, all those little hypocrites that you put in the box here I have no anxiety to have them.” The court directed counsel to defend, and the voir dire proceeded. After the court addressed the first panel of prospective jurors, defendant stated that he was asserting the right to represent himself. Without ruling on that request, the court asked counsel to explain to defendant that he could take counsel’s place in any part of the proceedings, but both would not be permitted to act in any one instance.

Defendant then asked permission to conduct his own defense completely, a request the Judge granted. The Judge directed counsel to let defendant proceed himself but to remain on a standby basis to guide him. Defendant, however, insisted that counsel be excluded, and that he would remain mute. The Judge at that point indicated his own understanding that, by asking to act for himself, defendant had intended to participate actively; in the circumstances, the Judge directed that, while defendant would be permitted to defend himself, if he got no answer from defendant on anything, counsel was to confer with defendant and particpate on his behalf. Through counsel defendant replied that he would simply "sit mute” in the case. When asked during voir dire to consult with defendant, counsel responded that defendant refused to exercise any sort of discretion in selecting the jury, "that he wants to sit mute in the case.” The court then ordered counsel to defend him, and jury selection as well as trial went forward in this fashion. Halfond and Purvis represented defendant throughout the trial. While protesting counsel’s participation because of the rigged system, defendant made clear that he found no fault with the two individuals; he stated that "these two men [were] qualified in every response in law.”

After voir dire (consuming nearly 1,000 transcript pages) in which 103 prospective jurors were closely questioned by the District Attorney and Halfond, both sides delivered opening statements, and the trial continued over the following weeks, with counsel representing defendant in the examination and cross-examination of witnesses. Nothing further was said of pro se representation. Since defendant contends before us that there was only one error in the conduct of the trial after the jury was impaneled — claimed insufficiency of the evidence with respect to defendant’s knowledge that the gun in his possession was stolen (see, infra, p 744, n) — there seems little point to dwelling on the course of the trial, except to note that defendant’s counsel were zealous in their representation of him, themselves calling eight witnesses (including a medical expert, a hair sample expert, a ballistics expert and a private investigator), making various motions (including several mistrial motions), and submitting requests to charge. It is no accident or omission that defendant at no time registered any complaint about the quality of the representation he received.

In these circumstances, defendant was not denied his constitutional right to represent himself.

The right to defend pro se being subject to restrictions, the present predicament — as well as the unenviable position into which the trial court cast itself, of likely error whatever it did —could have been obviated, or at least ameliorated, had the court simply followed the procedures outlined in People v McIntyre (36 NY2d 10), "to promote the orderly administration of justice and to prevent subsequent attack on a verdict claiming a denial of fundamental fairness.” (Id., at p 17.) The trial court made no finding that defendant’s request was unequivocal and timely; it conducted no inquiry to determine whether defendant’s waiver of the right to counsel was knowing and intelligent. And there was no finding as to whether defendant was engaging in obstreperous conduct, or whether his conduct was calculated to undermine, upset or unreasonably delay the progress of the trial, which would have forfeited defendant’s right of self-representation. While the resolution of each of these key issues is open to significant question, and the failure to make findings is indeed regrettable, still on this record defendant’s conviction should not be overturned.

The majority of this court finds that this case falls squarely within the constitutional right of pro se representation identified in Faretta v California (422 US 806) and People v McIntyre (36 NY2d 10, supra). This conclusion, however, overlooks a factual record that, when read in its entirety, leaves one wondering exactly what defendant was seeking. Having succeeded in obtaining his choice of counsel (whose prodigious efforts were satisfactory to defendant), at the commencement of a complex murder trial defendant sent in a statement insisting upon counsel’s exclusion from the courtroom. At that time he asserted no right to make his own defense. At trial 12 days later, defendant both announced that he wished to "sit mute” and insisted that he wanted counsel "excluded as well as myself.” After the first panel of prospective jurors was addressed, defendant asserted the right to defend himself (understood by the trial court to mean that he wished to participate actively), then repeated his demand to "sit mute” with counsel excluded. Indeed, it is not entirely clear from the transcript whether defendant’s demands to be excluded or sit mute were limited to jury selection, or extended throughout trial, for after jury selection he made no further reference to this subject. The transcript shows that he appeared pro se with standby counsel, yet he at no point "expressly and unambiguously renew[ed] his request that standby counsel be silenced.” (See, McKaskle v Wiggins, 465 US 168, 183.)

As McIntyre instructs: "So that convicted defendants may not pervert the system by subsequently claiming a denial of their pro se right, the pro se request must be clearly and unconditionally presented to the trial court” (36 NY2d, at p 17). Moreover, "we deem a pro se application to be timely interposed when it is asserted before the trial commences (People v. Spohn, 43 A D 2d 843). At that juncture the court may conduct a thorough inquiry thereby averting delay and confusion. Once the trial has begun the right is severely constricted and will be granted in the trial court’s discretion and only in compelling circumstances.” (Id., at p 17.) Defendant’s demands were neither unambiguous nor timely. Defendant made his first request — for exclusion of counsel from the courtroom — at the commencement of trial, when the court had a panel of 75 prospective jurors ready and had cleared its own calendar for the trial, and counsel for both sides were ready to begin. Given the circumstances, the trial court acted well within its discretion. "A system of justice must not only be just but sensible and practical. An experienced criminal defendant (this defendant had been convicted several times, including two felonies, and had permitted his attorney to represent him through the suppression hearing) should not be permitted to nullify a trial and require a new trial by the simple expedient of obstructing every effort of the court to assure to defendant his legal rights and a fair trial. There comes a point where a defendant must bear the consequences of his conduct, in a courtroom as well as out of it.” (People v Kelly, 60 AD2d 220, 224, affd on opn of Silverman, J., 44 NY2d 725).

But even assuming that defendant’s right of pro se representation has been violated, the relief awarded is unwarranted. In fashioning an appropriate remedy, "the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society” (People v Kelly, 62 NY2d 516, 520; see, People v Tindle, 61 NY2d 752, 754; People v Santobello, 39 AD2d 654). Having already had one error-free, counseled trial, defendant should not now be permitted to choose to be represented by counsel at retrial. Defendant should be granted no more than what he sought from the trial court and what we now conclude was improperly denied him: an uncounseled trial at which he is excluded from the courtroom. This would, consistent with due process (see, Santobello v New York, 404 US 257, on remand 39 AD2d 654), place defendant in the position he would have occupied had the error identified by the majority not been committed.

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

Order reversed, etc.

       In all, three other errors are cited by defendant, none requiring reversal of the conviction. First, in view of the pretrial publicity focused on this case, it would have been desirable to conduct voir dire of prospective jurors out of the presence of other jurors, but failure to do so did not deprive defendant of a fair trial (see, Murphy v Florida, 421 US 794; People v Genovese, 10 NY2d 478). Second, permitting the father of a policeman to serve as a juror in a case involving the death of an off-duty officer on this record did not constitute reversible error. Where a relationship does not fall within CPL 270.20 (1), whether or not to sustain a challenge for cause rests within the discretion of the trial court (see, People v Harris, 57 NY2d 335; People v Provenzano, 50 NY2d 420; cf. People v Culhane, 33 NY2d 90). Here, the court did not abuse its discretion as a matter of law in refusing to disqualify the juror. The fact that a juror has a relative in the same profession as the victim does not in and of itself constitute bias; and the juror, upon thorough inquiry by counsel for both sides, affirmed his impartiality. Finally, viewing the evidence in a light most favorable to the People, as we must, the proof was sufficient to establish defendant’s knowledge that the gun in his possession was stolen (see, People v Zorcik, 67 NY2d 670; People v Reisman, 29 NY2d 278, 285, cert denied 405 US 1041; People v Colon, 28 NY2d 1,13).


text:
    In the Matter of Timothy F. Myers et al., Appellants, v Key Bank, N. A., et al., Respondents.
    Argued June 2, 1986;
    decided July 10, 1986

      APPEARANCES OF COUNSEL

      Steven D. Farer for appellants.

      Richard D. Symansky for respondents.
   OPINION OF THE COURT

Memorandum.

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

Respondent Key Bank has initiated procedures to enforce a lien on property owned by petitioner Myers to satisfy a default judgment entered in its favor against Dolores Clark, the guarantor of a loan made by the bank to 340 Main Street Corp. Myers purchased the subject property from Mrs. Clark in her capacity as executrix of her late husband Robert Clark’s estate. Mrs. Clark, in her individual capacity, previously had included the property in a list of her assets provided to the bank as part of the loan application. A title search at that time would have revealed a deed executed by the deceased Clark in 1978 and recorded shortly after his death transferring the property to Mrs. Clark for nominal consideration.

Myers and petitioner Dime Savings Bank, which financed the Clark-to-Myers transaction, brought the instant proceeding against Key Bank pursuant to CPLR 5239 to determine the parties’ rights in the property. The gravamen of the petition is that the deed to Mrs. Clark was never delivered and is, therefore, void (see, e.g., Real Property Law § 244; 6A Powell, Real Property If 891). Thus, petitioners assert that title to the property remained in the Clark estate; that despite the fact that the deed to Mrs. Clark was recorded, she did not have title as she claimed when she guaranteed the Key Bank loan; and, accordingly, that Myers took title from the estate free and clear of the Key Bank judgment against Mrs. Clark.

The evidence submitted by petitioners is insufficient to overcome the presumption of delivery of the deed and Dolores Clark’s record ownership of the subject property resulting from the recording of the deed to her from Robert Clark (Sweetland v Buell, 164 NY 541, 552; Rametta v Kazlo, 68 AD2d 579, 581, mot to dismiss appeal denied 48 NY2d 669; Richardson, Evidence § 81 [10th ed]) together with her other conduct with respect to the property.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Richard M. Pratt, Appellant, v Edward V. Regan, as Comptroller of the State of New York, Respondent.
    Decided July 10, 1986

      APPEARANCES OF COUNSEL

      Louis N Kash, Corporation Counsel (Jeffrey Eichner of counsel), for appellant.

      Robert Abrams, Attorney-General (Calvin M. Berger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, the determination annulled, and the matter remitted to the Comptroller for further proceedings in accordance with this memorandum.

Petitioner, a fireman employed by the City of Rochester, was injured while exiting a fire truck at normal speed and wearing approved safety shoes, when he caught his right heel on the running board, lost his balance, and came down on his left leg in a pothole. After a hearing, the Comptroller found that the injury was not accidental within the meaning of Retirement and Social Security Law § 363, the hearing officer expressly considering the principles set forth in Matter of McCambridge v McGuire (62 NY2d 563) and Matter of Lichtenstein v Board of Trustees (57 NY2d 1010).

We conclude that petitioner sustained an accidental injury as a matter of law (Matter of McCambridge v McGuire, supra). Catching a heel on a running board and thus losing balance may be a risk of the work performed, but coming down hard upon the other foot in a pothole is not. Thus, it was a sudden, unexpected event. The Comptroller’s determination should, therefore, be annulled.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment reversed, with costs, determination of the Comptroller annulled and matter remitted to Supreme Court, Albany County, with directions to remand to the Comptroller for further proceedings in accordance with the memorandum herein.


author: Simons, J.

text:
    Doris B. McCasland, Appellant, v Merritt J. McCasland, Respondent.
    Argued May 30, 1986;
    decided July 10, 1986

      APPEARANCES OF COUNSEL

      Arthur J. Siegel for appellant.

      John D. Rodgers, William F. Conway and Harry Makris for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant’s motion denied.

Plaintiff and defendant, Florida residents, entered into a separation agreement in Florida and were subsequently divorced in that State by a decree in which the separation agreement was incorporated but not merged. Plaintiff seeks an equitable distribution of her former husband’s interests in three New York corporations pursuant to Domestic Relations Law §236 (B) (2) and (5) which authorizes "proceedings to obtain a distribution of marital property following a foreign judgment of divorce”. She commenced her action by personal service on defendant in Florida.

In the separation agreement, dated May 12, 1982, plaintiff specifically reserved her right to pursue her claims to an equitable share of defendant’s interests in the New York corporations. The pertinent clause, article V, entitled "reservation of rights to sue”, provides as follows: "Husband hereby acknowledges that Wife, in her Petition for Dissolution of Marriage, claimed a right, title and ownership interest in the property, both real and personal, of the following corporate entities: McCasland Truck Center, Inc., Northern States Truck Center, Inc. and Northern States Holding Corp. Husband does hereby specifically acknowledge and agree that Wife, by virtue of execution of this Settlement Agreement and its being incorporated in a Final Judgment of Dissolution of Marriage, does not waive any claim which she has in and to the above described right, title and ownership interest in said entities by virtue of her marriage to Husband or otherwise, and that she may pursue any such claims and rights against Husband, said entities and/or the alleged present or past owners of said entities as she may choose in any court(s) of competent jurisdiction which may have jurisdiction over said individuals and/or entities.”

On defendant’s motion, Special Term dismissed the action for lack of jurisdiction. The Appellate Division affirmed holding that no personal jurisdiction had been obtained over defendant under CPLR 302 (a) (1) or 302 (b) and that no in rem or quasi in rem jurisdiction had been acquired by service on the defendant under CPLR 314 (2) for the limited purpose of determining plaintiff’s claim of interest in the corporate shares. The Appellate Division also rejected plaintiff’s argument that defendant had consented to such jurisdiction.

We hold that service was properly effected under CPLR 314 (2). Moreover; we agree with the dissent at the Appellate Division that the parties intended in article V to effect a consent by defendant to the exercise by the New York courts of jurisdiction over his stock interests in the corporations. A plain reading of article V supports no other conclusion. In the agreement defendant expressly acknowledges that plaintiff has an existing claim to an interest in the three named New York corporations, that she does not waive that claim, and that she may pursue that claim against him in any court "of competent jurisdiction which may have jurisdiction over” the corporations.

A contrary construction of article V would make it virtually impossible for any court to adjudicate plaintiff’s claim, and would frustrate the only apparent purpose of article V: to facilitate the submission of the unresolved question of plaintiff’s interest in specifically identified marital property to a court having jurisdiction over that property.

We do not reach any question pertaining to the nonfinal portion of the order appealed from denying plaintiff’s cross motion.

Simons, J.

(concurring). I construe the language of article V of the separation agreement, which the majority relies upon, as merely preserving plaintiff’s claims after the judgment of divorce, not as an agreement conferring jurisdiction on the New York courts. I concur in the result, however, for reasons stated by Justice T. Paul Kane at the Appellate Division, in dissent, insofar as he found the court had in rem jurisdiction of the action.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander, Titone and Hancock, Jr., concur; Judge Simons concurs in result in a concurring memorandum.

Order reversed, with costs, and defendant’s motion to dismiss the complaint denied in a memorandum.


text:
    Ronald T. Golan, Respondent, v Louise Wise Services, Appellant.
    Submitted June 16, 1986;
    decided July 10, 1986
   Motion for leave to appeal and for a stay granted.


text:
    The People of the State of New York, Respondent, v S. Simpson Gray, Appellant.
    Submitted June 2, 1986;
    decided July 10, 1986
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from was made in a criminal proceeding and no appeal lies therefrom under the Criminal Procedure Law.


text:
    In the Matter of the Arbitration between Hanover Insurance Company, Respondent, and Eddy Saint Louis, Appellant.
    Decided July 10, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the Appellate Division order of reversal, absent a dissent by at least two Justices or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    James MacPherson et al., Respondents, v Kessef Tov Corp. et al., Appellants.
    Submitted June 30, 1986;
    decided July 10, 1986
   Motion for reconsideration of this court’s order of June 10, 1986 denied. The order of the Appellate Division did not finally dispose of plaintiffs’ action. Motion for a stay dismissed as academic. [See, 68 NY2d 661.]


text:
    In the Matter of Willow Wood Rifle & Pistol Club, Inc., Respondent, v Town of Carmel Zoning Board of Appeals et al., Appellants. (And Another Title.)
    Submitted June 2, 1986;
    decided July 10, 1986
   Chief Judge Wachtler taking no part.


text:
    Floyd H. Flake, Appellant, v Board of Elections of New York City et al., Respondents.
    Submitted July 21, 1986;
    decided July 22, 1986
   Judge Kaye takings no part.


text:
    In the Matter of Carol Berman, Appellant, v Board of Elections of the County of Nassau et al., Respondents.
    Argued August 27, 1986;
    decided August 28, 1986

      APPEARANCES OF COUNSEL

      Martin E. Connor for appellant.

      Raymond B. Harding for Frederick B. Miller, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to that court for consideration of issues not passed upon on the appeal to that court (see, 122 AD2d 911).

On July 10, 1986 a petition was filed with the Board of Elections designating Helene B. Agatstein as the candidate of the Liberal Party for the 9th Senatorial District. She subsequently declined the designation and the Committee on Vacancies filed a certificate with the Board substituting respondent Miller in her place. Respondent’s candidacy necessarily rests upon the validity of the Agatstein designating petitions and petitioner challenges them in this proceeding.

Supreme Court found that timely personal service had been made on respondent Board and substituted service on respondent Miller, and that it therefore had jurisdiction, that the members of the Committee on Vacancies were not necessary parties, and, on the merits, that some of the signatures could not be counted because not properly witnessed as the Election Law required. Accordingly, it granted the petition and invalidated the designating petition.

The Appellate Division, by a divided court, reversed. The majority held that the Committee on Vacancies was a necessary party and that because it had not been joined, the petition must be dismissed. We hold otherwise (see, Matter of Roman v Power, 10 NY2d 793; Matter of Kowal v Dmochowski, 14 AD2d 665, affd 10 NY2d 784; see also, Matter of Manz, 17 AD2d 719; 2 Gassman, Election Law § 120, at 771-772 [2d ed]).

In support of the Appellate Division order, respondent Miller contends in this court that even if the Committee on Vacancies is not a necessary party, Supreme Court did not obtain jurisdiction over him because the show cause order providing for substituted service was void (see, Matter of O’Daniel v Hayduk, 59 AD2d 706, affd 42 NY2d 1062; Matter of Bruno v Ackerson, 51 AD2d 1051, affd 39 NY2d 718; Matter of Sahler v Callahan, 92 AD2d 976 [all involving orders lacking a date before which substituted service had to be completed]). The order was executed on July 23 and authorized substituted service "on or before July 28, 1986” although under the statutory deadlines a proceeding could not be commenced after July 24, 1986. Respondent does not claim that timely service was not completed and in fact substituted service was made on him on July 24, 1986.

The Election Law provides that a special proceeding challenging a designating petition shall be commenced upon such notice as the court or Justice shall direct (Election Law § 16-116). In this case the petition contained no blanks, only an erroneous date authorizing service beyond the date the statute permitted for commencing such a proceeding. Petitioner completed service in the manner the court directed and she did so within the time the statute allowed. That the order to show cause mistakenly permitted service beyond that date, until July 28, is of no consequence because the petitioner does not rely on the authorization permitting service áfter July 24 but instead completed substituted service, as the order authorized, during the appropriate time.

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

Order reversed, without costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Anthony Maori et al., Appellants, v Antonia R D’Apice et al., Constituting the Board of Elections of the County of Westchester, et al., Respondents.
    Argued August 27, 1986;
    decided August 28, 1986
    APPEARANCES OF COUNSEL

      Gerald Loehr for appellants.

      James Glatthaar for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (122 AD2d 905).

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


text:
    In the Matter of Charles W. Elston et al., Appellants, v William A. Mahoney et al., Constituting the Board of Elections of the County of Schenectady, et al., Respondents. (And Three Other Proceedings.)
    Submitted August 27, 1986;
    decided August 28, 1986
   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. Motions for leave to appeal denied.


text:
    In the Matter of Fernando Fuentes, Appellant, v Antonia D’Apice et al., Constituting the Board of Elections of the County of Westchester, et al., Respondents.
    Submitted August 27, 1986;
    decided August 28, 1986
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Delphin H. Greene, Appellant, v Board of Elections of the City of New York et al., Respondents.
    Submitted August 27, 1986;
    decided August 28, 1986
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Michael Hendrickson et al., Appellants, v Board of Elections of the City of New York et al., Respondents.
    Submitted August 27, 1986;
    decided August 28, 1986
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Ineze A. Patterson et al., Appellants, v Board of Elections of the City of New York et al., Respondents.
    Submitted August 27, 1986;
    decided August 28, 1986
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Eli Rosenblatt, Respondent, v New York State Tax Commission et al., Appellants, et al., Respondents.
    Decided September 4, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert Hermann, Peter H Schiff and Nancy A. Spiegel of counsel), for appellants.

      Sanford F. Young for petitioner-respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment insofar as appealed from reversed, with costs, and the Tax Commission’s determination of a deficiency against petitioner Rosenblatt reinstated for reasons stated in the concurring in part and dissenting in part opinion by Justice Ann T. Mikoll at the Appellate Division (114 AD2d 127, 132-133).

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


text:
    Waters of Saratoga Springs, Inc., Appellant, v State of New York, Respondent.
    (Claim No. 69282.)
    Decided September 4, 1986

      APPEARANCES OF COUNSEL

      Bruce Yukelson for appellant.

      Robert Abrams, Attorney-General (Richard J. Dorsey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Claimant’s claim and amended claim, filed more than two years after accrual of the alleged causes of action, were properly dismissed (see, Court of Claims Act § 10 [4]). Similarly, claimant’s application to deem its notice of intention to file a claim as a notice of claim was correctly denied, there being no cause of action stated upon which the requested relief can be granted. Insofar as the notice of intention asserted arbitrary and capricious conduct in excess of the State’s authority, the alleged wrongdoing (requiring warning labels on drinking water) was a sovereign activity as to which the State has not waived immunity. Insofar as the notice of intention alleged breach of contract, the agreement expressly contemplated the possibility that warning labels would be required.

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

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


text:
    Morgan Guaranty Trust Company of New York, Respondent, v Sheldon H. Solow, Doing Business as Solow Building Company, Appellant.
    Decided September 4, 1986

      APPEARANCES OF COUNSEL

      Robert J. McDonald, John L. Warden, Joel M. Miller and Charles R. Jacob, III, for appellant.

      Robert F. Wise, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division insofar as appealed from should be affirmed, with costs.

The arbitration award was properly confirmed inasmuch as the award was not irrational and did not violate any limitations on arbitral authority expressly contained in the lease (see, Matter of Silverman [Benmor Coats], 61 NY2d 299; cf. Avon Prods. v Solow, 54 NY2d 637). Additionally, we agree with the Appellate Division that the award rendered November 30, 1984 was final and definite, and, therefore, did not violate any time limitations agreed upon by the parties (see, Matter of States Mar. Lines [Crooks], 13 NY2d 206).

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

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


text:
    In the Matter of Anonymous, an Attorney. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted July 28, 1986;
    decided September 4, 1986
   Motion to vacate this court’s prior order, staying enforcement of the Appellate Division’s order imposing sanctions, is granted. [See, 68 NY2d 754.]


text:
    In the Matter of the Civil Service Employees Association, Inc., et al., Appellants, v Michael Ford, as Director of the Manhattan Psychiatric Center, Respondent.
    Submitted June 9, 1986;
    decided September 4, 1986
   Judge Alexander taking no part.


text:
    Hippolito Villanueva, Respondent, v John D. Simpson, as President and Executive Officer of the New York City Transit Authority, Appellant.
    Submitted June 9, 1986;
    decided September 4, 1986
   Motion for leave to appeal dismissed upon the ground that the determination sought to be appealed from is not a final judgment within the meaning of CPLR 5602 (a) (1) (ii).


text:
    In the Matter of the Application of Ansonia Associates, Appellant, v State Division of Housing and Community Renewal, Respondent. (And Two Additional Proceedings.)
    Submitted July 28, 1986;
    decided September 4, 1986
   Motion by Ansonia Associates for leave to appeal granted. Motion by Ansonia Associates to have oral argument scheduled for September 10, 1986 denied. Cross motions by Thomas Soja, individually and as a president of the Ansonia Tenants Coalition, Inc. for leave to appeal denied. Cross motion by the Ansonia Residents Association for leave to appeal denied.


text:
    In the Matter of Conifer Baldwinsville Associates, Appellant-Respondent, v Town of Van Buren, Respondent-Appellant, and Board of Assessment Review of the Town of Van Buren, Respondent.
    Decided September 9, 1986

      APPEARANCES OF COUNSEL

      William L. Allen, Jr., for appellant-respondent.

      Charles Farrell for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division committed no error of law in using actual income as distinct from market rents and in using actual expenses as found by it rather than as stated in petitioner’s bill of particulars. Not only was there "no showing that the rents fixed by HUD do not reflect the value of the property”, as that court noted (115 AD2d 325), but also there was evidence in testimony of petitioner’s appraiser that the income actually received exceeded the market rent. It is only "when fair market rents exceed rental income [that] the latter may, in whole or in part, be made to defer to more precise means of fixing a base on which to compute capitalization” (Matter of Merrick Holding Corp. v Board of Assessors, 45 NY2d 538, 543).

On its cross appeal, the town contests the award to petitioner of expenses pursuant to Real Property Tax Law § 716 (2). That subdivision provides that if a petitioner’s demand for admission of the applicable ratio to full value is denied and petitioner thereafter proves the correct ratio to be not in excess of that specified in the demand, petitioner may be awarded reasonable expenses incurred in making his proof "irrespective of the results of the proceeding” unless "the court finds that there was good and sufficient reason for the respondent’s denial”. Here the Referee found and the Special Term award confirmed that the applicable ratio was that stated in petitioner’s demand and that the proof offered in support of the town’s ratio was of little probative value in view of the small number of sales used and the absence of documentary proof to support it. Petitioner was, therefore, entitled to an award of its expenses in making such proof, notwithstanding that it was otherwise unsuccessful, unless "there was good and sufficient reason for the respondent’s denial”. The town argues that its denial was based upon a study which showed a higher figure and was, therefore, reasonable and in good faith. The statutory criterion, however, is not good faith but good and sufficient reason. Here the town conceded in its reply brief to the Appellate Division that its study was "a very quick evaluation” made "in order to comply with the response time provided for in the statute” and "contains a rather significant mathematical error.” The response time provided for in RPTL 716 (1) is "fifteen days after service of such demand, or within such further time as the court may allow on motion on notice.” The conclusion of the courts below that respondent’s denial was not based upon good and sufficient reasons was well within their province (see, Matter of Pierre Pellaton Apts. v Board of Assessors, 43 NY2d 769, affg sub nom. 860 Executive Towers v Board of Assessors, 53 AD2d 463; Guth Realty v Gingold, 34 NY2d 440).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR' 500.4), order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Leslie Rivera, Appellant.
    Decided September 9, 1986

      APPEARANCES OF COUNSEL

      Jane K. Falcon and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Cindy Rainbow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The sole issue raised by defendant on this appeal from the denial of his suppression motion is that the testimony of the arresting officer should have been rejected, as a matter of law, as incredible; only if the officer’s testimony is credited was there probable cause for the search. Each of the three alleged inconsistencies between the officer’s testimony and prior accounts was brought out during the officer’s examination and separately considered by the trier of fact, who concluded from his observation of the witness and review of the evidence that the officer’s testimony at the suppression hearing was credible. This is not a case where testimony is so flawed that findings as to a witness’s credibility made from the unique perspective of the trier of fact must be overridden (see, People v Reed, 64 NY2d 1144, 1147; People v Concepcion, 38 NY2d 211, 213).

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

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


text:
    John W. Colgan et al., Appellants, v Town of Hillsdale, Respondent, et al., Defendant.
    Decided September 9, 1986

      APPEARANCES OF COUNSEL

      David L. Krech for appellants.

      Carl Rosenbloom for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the defendant town’s motion for summary judgment denied.

Although municipalities have no duty to preserve the lateral support to adjacent land in the construction and maintenance of highways and roads (Radcliff’s Executors v Mayor, 4 NY 195, 203; see, New York Steam Co. v Foundation Co., 195 NY 43, 50), municipalities are liable for damages to adjoining property proximately caused by their negligence in construction and maintenance (Radcliff’s Executors v Mayor, supra; Vanguard Tours v Town of Yorktown, 83 AD2d 866). Since factual issues exist concerning the defendant’s conduct in maintaining the drainage ditches and backslope adjacent to plaintiffs’ property, summary judgment is inappropriate (Zuckerman v City of New York, 49 NY2d 557; cf. Olan v Farrell Lines, 64 NY2d 1092, 1093).

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

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


text:
    The People of the State of New York, Respondent, v Santiago Feliciano, Appellant.
    Submitted July 21, 1986;
    decided September 9, 1986
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (see, People v McMahon, 47 NY2d 882; People v Prunty, 46 NY2d 1014; People v Mintz, 20 NY2d 753, 770).


text:
    Mercantile Imports, Inc., Doing Business as Concepts by Sharon, Respondent, v La Rue Distributors, Inc., Appellant.
    Submitted July 21, 1986;
    decided September 9, 1986
   Plaintiffs cross motion to dismiss the appeal granted and appeal dismissed, with costs, and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution; in any event, no appeal lies as of right from a unanimous Appellate Division order absent the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300). Defendant’s motion for a stay dismissed as academic.


text:
    In the Matter of Robert J. Neville, Appellant, v Frank A. Finnerty, Jr., Chief Counsel, et al., Respondents.
    Submitted July 21, 1986;
    decided September 9, 1986
   Motion for recusal of Chief Judge Wachtler was referred to the Chief Judge and his denial of that motion is here noted.


text:
    In the Matter of George Sassower, Appellant, v Justices of the Supreme Court of the State of New York et al., Respondents. In the Matter of George Sassower et al., Appellants, v Stanley Harwood, as a Justice of the Supreme Court of the State of New York, et al., Respondents.
    Decided September 9, 1986
   Appeals from Appellate Division orders entered May 27, 1986 and May 29, 1986 dismissed, without costs, by the Court of Appeals sua sponte, each upon the ground that no substantial constitutional question is directly involved.