text:
    United States Fidelity and Guaranty Company, Respondent, v William G. Copfer et al., Individually and as Parents and Natural Guardians of Thomas Copfer, et al., Defendants, and Thomas Copfer, Appellant.
    Argued October 19, 1979;
    decided November 29, 1979

      APPEARANCES OF COUNSEL

      Richard J. Schroff for appellant.

      John J. Sullivan, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in its memorandum decision.

We agree that the insurer breached its contractual duty to defend and indemnify the insured and thus may be held liable for the expenses the insured incurred in providing for his own defense (International Paper Co. v Continental Cas. Co., 35 NY2d 322). Additionally, the insurer may be required to reimburse the insured, up to the coverage limits in the insurance policy, for any judgment the insured is in turn required to pay as a result of the negligence action against him. The insured’s claim for additional damages resulting from the insurer’s alleged "bad faith” must be rejected, however, since there was no showing whatsoever that the insured lost an actual opportunity to settle the negligence claim against him within the coverage limits of his policy by reason of the insurer’s purported "bad faith” (see St. Paul Fire & Mar. Ins. Co. v United States Fid. & Guar. Co., 43 NY2d 977; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; cf. Decker v Amalgamated Mut. Cas. Ins. Co., 35 NY2d 950). The insured’s speculations that a satisfactory settlement might have ensued had the insurer sought out the injured party and attempted to negotiate on behalf of its insured are simply not sufficient to support a claim against the insurer for what are essentially excess liability damages (see Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427). Accordingly, we hold that the Appellate Division acted properly in granting summary judgment to the insurer on this claim. v

Meyer, J.

(dissenting). Respectfully, I dissent. The carrier received from its insured a complaint which declared in negligence only. It was, therefore, obligated to defend, and since the trial of the action had to result either in a verdict for its insured or a finding that the insured had been guilty of negligence, it was clear from the face of the complaint that its coverage disclaimer was one that "no reasonable carrier would * * * be expected to assert” (Sukup v State of New York, 19 NY2d 519, 522). Since the carrier was advised by the insured’s private attorney that the codefendant had settled with plaintiff in the negligence action for $15,000, the limit of insured’s policy was $25,000, and the carrier after such advice was obligated to consider not only its own but its insured’s interest, there clearly was an issue for the jury on the carrier’s bad faith (Decker v Amalgamated Mut. Cas. Ins. Co., 35 NY2d 950). That the insured’s private attorney did not obtain and transmit to the carrier a fixed and formal offer from plaintiff in the negligence action is a matter for consideration by the jury on the issue of bad faith, but the information he gave the carrier was in any event sufficient to bring to its attention the strong possibility of settlement and thus trigger its obligation to reconsider its position.

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of John G. Dier, a Judge of the Warren County Court, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Submitted November 16, 1979;
    decided November 29, 1979

      APPEARANCES OF COUNSEL

      David B. Krogmann for appellant.

      Gerald Stern for respondent.
   OPINION OF THE COURT

Memorandum.

We accept the determination of the State Commission on Judicial Conduct that petitioner should be censured for his actions in seeking to influence dispositions made by other courts on matters pending before those courts. Contrary to petitioner’s claims, we find that the factual findings made by the commission do afford an adequate basis for appellate review, and we perceive no basis for disturbing either the factual findings of or the sanction imposed by the commission (see Matter of Bulger v State Comm. on Judicial Conduct, 48 NY2d 32; cf. Matter of Dixon v State Comm. on Judicial Conduct, 47 NY2d 523).

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

Determined sanction accepted, without costs, in a memorandum.


text:
    Mary Blake, Respondent-Appellant, v City of Albany, Appellant-Respondent. (Action No. 1.) Mary Blake, Appellant, v Niagara Mohawk Power Corp., Defendant and Third-Party Plaintiff-Respondent. UTEC Constructors, Inc., et al., Third-Party Defendants-Respondents. (Action No. 2.) Mary Blake, Appellant, v UTEC Constructors, Inc., et al., Respondents. (Action No. 3.)
    Argued September 6, 1979;
    decided November 29, 1979

      APPEARANCES OF COUNSEL

      Martin Brickman for plaintiff-appellant.

      John E. Roe, Corporation Counsel (Joseph V. Zumbo of counsel), for defendant-appellant.

      James N. Conboy for Niagara Mohawk Power Corp., respondent.

      William M. O’Hare for UTEC Constructors, Inc., respondent.

      Myron Komar for Weber Construction Company, respondent.
   OPINION OF THE COURT

Memorandum.

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

The city having withdrawn any reliance on its Local Law No. 1 (1953) on the argument of this appeal, the issues essentially are reduced to two: (1) Was the evidence connecting Weber and, through it, Niagara Mohawk and UTEC with the accident sufficient to support verdicts against them? and (2) Was there enough proof that the city had notice of the defect on which to ground the finding that it was liable?

As to the first issue, as the case was presented, any liability on the part of Niagara Mohawk, UTEC or Weber hung on whether there was proof of the latter’s erection of the particular roadway blockade which diverted the plaintiff. Yet, the record contains no proof that it had done so. True, Weber had been working at Trinity Place for some months prior to the accident, during which time it had cordoned off the excavation site, but the uncontradicted testimony was that its activities there had ceased well in advance of plaintiff’s arrival on the scene and that, by then, at least two other contractors, Hanson Plumbing and Heating and Fane Construction Company, neither of whom was named as a defendant, had undertaken work in that area pursuant to permits granted directly to them by the city. In this context, the mere fact that a rolling machine bearing Weber’s name was seen in the general vicinity of the accident two days after it took place was not enough by and unto itself to establish that the barricades plaintiff found in the roadway were either owned or placed there by that defendant. In all, the evidence on which negligence on the part of these defendants could be grounded, at best, was speculative. It follows that the case against them stands properly dismissed (Kelly v Otis Elevator Co., 283 App Div 363, 367, affd 308 NY 805).

As to the second issue, we note that there was no direct proof of actual notice. But, since a negligent failure to discover a condition that should have been discovered can be no less a breach of due care than a failure to respond to actual notice (19 McQuillin, Municipal Corporations, § 54.109), on the record here it was within the province of the jury in its general verdict to have found constructive notice on the part of the city on alternative theories. For one, without more, the jury could have inferred from the depressed position of the catch basin cover relative to the level of the adjoining pavement that the condition had come into existence over a sufficiently long period of time for the city, charged as it was with the duty to keep the public ways in good repair, to have discovered and corrected the condition; for instance, in Batton v Elghanayan (43 NY2d 898), we held that a jury could find constructive notice on the basis of its evaluation of photographs showing the condition of the concrete floor on which the plaintiff there had tripped. Or, if the jury chose to credit the testimony of the witness Johnson that he had observed the condition weeks before the accident, it could have reached the same conclusion on that account (see Putnam v Stout, 38 NY2d 607, 612). And, to supplement either of these rationales and add to the element of foreseeability, not only did the city’s issuance of a permit for the ongoing special street work itself afford an evidentiary foundation for a determination that it was or should have been aware of the danger, but it also was the occasion for the city’s field inspectors to visit the area regularly for some days prior to plaintiff’s mishap (see Putnam v Stout, supra, at p 612).

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

Order affirmed, with costs to respondents Niagara Mohawk Power Corporation, UTEC Constructors, Inc., and Weber Construction Co. against appellants, in a memorandum.


text:
    Garland D. Cox & Associates, Inc., Appellant, v Harry S. Koffman et al., Respondents.
    Argued October 17, 1979;
    decided November 29, 1979

      APPEARANCES OF COUNSEL

      Carl B. Kustell for appellant.

      John H. Hartman for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that court.

The premise of the Appellate Division’s determination was that, because there had not been a levy of execution on the Koffman Group under petitioner’s judgment against P. D. C., petitioner could not secure a turnover order against the Hoffman Group in a proceeding brought pursuant to CPLR 5225 (subd [b]) and CPLR 5227. That premise was erroneous. There is no requirement that a judgment creditor obtain priority by way of execution before he resorts to one of the other enforcement devices provided by CPLR article 52 (Weinstein-Korn-Miller, Manual CPLR 30-17, 30-18); plaintiffs right to set aside as fraudulent a conveyance of property by P. D. C. to the Hoffman Group or to Bella Vista Apartments, Inc., may be determined in the present proceeding (6 Weinstein-KornMiller, NY Civ Prac, pars 5225.16, 5225.17, pp 52-375, 52-376). In passing on the issues relevant to that determination, not previously passed on by it, the Appellate Division should consider, in addition to statutory provisions referred to in the decision of the Trial Judge, section 273-a of the Debtor and Creditor Law.

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

Order reversed, with costs, and the case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.


text:
    Alumiline Corporation, Appellant, v Joseph Charla Iron Works, Inc., Respondent.
    Argued November 13, 1979;
    decided November 29, 1979
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of Robert S., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted November 5, 1979;
    decided November 29, 1979
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [i]). Motion for a preference denied. Motion for assignment of counsel denied with leave to renew upon appellant’s affidavit setting forth facts sufficient to support a claim of indigency.


text:
    The People of the State of New York, Respondent, v Dereck Boston, Appellant.
    Submitted November 12, 1979;
    decided November 29, 1979
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the order sought to be appealed from.


text:
    Richard Lindsay, Appellant, v New York State Board of Parole et al., Respondents.
    Argued November 12, 1979;
    decided December 11, 1979
    APPEARANCES OF COUNSEL

      Lewis B. Oliver, Jr., and Daniel A. Steinbock for appellant.

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

Memorandum.

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

Petitioner commenced this article 78 proceeding to vacate parole violation charges lodged against him. Although the alleged violations occurred in 1973, no final revocation hearing had been held at the time this proceeding was instituted in 1977. However, a parole eligibility hearing on a new conviction was conducted earlier in 1977, more than four years after the alleged parole violations. The question is whether the eligibility hearing renders academic the failure to hold a final revocation hearing.

Preliminarily, the appeal is not moot, contrary to respondent’s contention. The impact of the parole violation charges does not end with petitioner’s release from prison, but may continue to affect matters such as the maximum parole expiration date. Thus, the relief sought in this article 78 proceeding might well lead to an earlier termination of parole supervision.

- On the merits, we agree that the failure to hold a timely revocation hearing requires dismissal of the parole violation charges (Matter of Piersma v Henderson, 44 NY2d 982; People ex rel. Walsh v Vincent, 40 NY2d 1049). That a parole eligibility hearing was eventually conducted is irrelevant. Due to its different nature and scope, the eligibility hearing could not serve as a substitute for the final revocation hearing. To the extent that the memorandum in People ex rel. Schmidt v La Vallee (39 NY2d 886) may be interpreted as holding otherwise, it is disapproved.

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

Order reversed, etc.


text:
    In the Matter of TJPC Restaurant Corporation, Doing Business as The Encore II, Respondent, v State Liquor Authority, Appellant.
    Argued November 12, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

      Raymond Lewandowski and Warren B. Pesetsky for appellant.

      Ronald S. Carlisi for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs (see Matter of Beal Props. v State Liq. Auth., 37 NY2d 861).

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


text:
    In the Matter of Presbyterian Residence Center Corporation, Appellant, v Wallace Wagner, as Assessor of the City of Rochester, et al., Respondents.
    Argued November 14, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

      Douglas S. Gates for appellant.

      Louis N. Kash, Corporation Counsel (Susan Hauser, Merwyn M. Kroll, James S. Grossman and Mark J. Moretti of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (66 AD2d 998).

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


text:
    In the Matter of Loretta Slochowsky, Respondent, v Carmen Shang, as Acting Commissioner of the New York State Department of Social Services, Respondent, and Joseph D’Elia, as Commissioner of the Nassau County Department of Social Services, Appellant.
    Argued November 13, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (Robert O. Boyhan and Andrew J. Schatkin of counsel), for appellant.

      Richard Gabriele and Leonard S. Clark for petitioner-respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (67 AD2d 926).

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


text:
    The People of the State of New York, Respondent, v Jerry Skinner, Appellant.
    Argued November 13, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney (Frank Diaz and Brian Rosner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed. The initial brief streetside interrogation of defendant was far less intrusive than is a traditional arrest, and thus need not have been supported by probable cause as long as the police had "a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity” (Brown v Texas, 443 US 47; see CPL 140.50; People v Moore, 47 NY2d 911; cf. Dunaway v New York, 442 US 200). We cannot say that the courts below erred as a matter of law in finding that the actions of the officers in this case were based on such a reasonable suspicion.

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

Order affirmed in a memorandum.


text:
    Goldstein, Goldman, Kessler & Underberg, Appellant, v 4000 East River Road Associates et al., Respondents.
    Argued November 12, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

      Russell Zuckerman and Jerrold B. Reilly for appellant.

      Edward J. Burns, Sherry S. Kraus and Harold A. Kurland for ICM Realty, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the Per Curiam opinion at the Appellate Division (64 AD2d 484).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Fuchsberg. Judges Gabrielli and Meyer dissent and vote to reverse for reasons stated in the dissenting opinion by Mr. Justice Richard J. Card amone at the Appellate Division (64 AD2d, at pp 489-491). \


text:
    The People of the State of New York, Respondent, v Edward De Mauro, Appellant.
    Argued November 13, 1979;
    decided December 11, 1979
    APPEARANCES OF COUNSEL

      Helena Pichel Solleder for appellant.

      Robert M. Morgenthau, District Attorney (Benjamin H. Green and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We have examined the several contentions advanced on behalf of defendant and find them to be without merit. First, the receipt in evidence of defendant’s five statements provides no ground for reversal. He was given pretrial notice of these statements and afforded opportunity to listen to the tape recordings. The trial court denied his motion to suppress his first statement, made on July 3, 1975, finding that it was initiated by defendant and freely volunteered by him to the police before he was a suspect with respect to the homicide in this case, while he was being held on an unrelated charge and not being interrogated, and that the statement was made by him for the purpose of arranging an accommodation in connection with that other charge. We cannot say that this factual determination, now affirmed at the Appellate Division, was erroneous as a matter of law. As to his other four statements there was no motion to suppress or objection to their admission in evidence; thus no assertion of error was preserved for our review. Nor is there any proof in this record that defendant was represented by counsel as a consequence of which his statements would have been suppressible.

Second, because there was no pertinent request to charge and no exception was taken to the charge as given, claims of error now advanced with respect to the instructions to the jury, even if such claims were deemed to be well founded, have not been preserved for our review.

Third, when the initial witness for the People unexpectedly testified that she had first met defendant when he was serving time in prison with her husband, defense counsel promptly objected. The trial court sustained the objection and instructed the jurors to disregard the testimony and to strike it from their minds. It was not error for the trial court thereafter to deny defendant’s motion for mistrial — based on the inadvertent disclosure of defendant’s incarceration — as untimely when the motion was not made until the following day after the witness had completed her testimony.

Finally, no basis for reversal of his conviction is found in defendant’s contention that he was denied effective assistance of counsel in consequence of his attorney’s failure to make a pretrial motion to suppress his five statements and his delay in making the motion for mistrial. The statements, except for the first as to which there was a motion to suppress, were apparently thought to be usefully exculpatory. The delay in making the motion for mistrial was perceived by the trial court as a calculated move to await developments in the testimony of the witness. These were no more than matters of trial tactics and errors of judgment at most.

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

Order affirmed in a memorandum.


text:
    Robert Corradino, Appellant, v Barbara Corradino, Respondent.
    Argued November 12, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

      L. Richard Stumbar for appellant.

      Robert J. Chine for respondent.
   OPINION OF THE COURT

Memorandum.

We affirm, with costs, for the reasons stated on the opinion of Mr. Presiding Justice A. Franklin Mahoney at the Appellate Division (64 AD2d 320). As the court said in Matter of Nehra v Uhlar (43 NY2d 242, 251), "Priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement” (emphasis supplied).

We would also note that, because the attorney for the petitioner husband was associated with the same law firm as was the Trial Judge prior to her designation to the Bench, the respondent wife asked the Judge to recuse herself. That application was denied. Though there is no canon of judicial ethics which specifically requires disqualification under these circumstances, we believe it the better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Roger Mason, Appellant.
    Submitted November 13, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

      Michael J. Biscone for appellant.

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

Order affirmed for the reasons stated in so much of the memorandum at the Appellate Division as relates to the denial of the motion to withdraw the plea (67 AD2d 747).

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


text:
    The People of the State of New York, Respondent, v Errol Pearce, Appellant.
    Argued November 15, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

      Jeff L. Greenup for appellant.

      Eugene Gold, District Attorney (Jane S. Meyers of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The court did not err in refusing to allow defense counsel to cross-examine a prosecution witness by holding a lineup in court with the defendant’s brothers participating.

The defendant also claims that the court improperly denied a request made by a juror during deliberations. The record shows that at one point the jury returned with a written request for, among other things, "The police report taken on the night of the incident”. The court properly denied that request on the ground that the police report had not been admitted into evidence. After complying with another request, the court asked the jury if there was anything else that they wanted before resuming deliberations. The record then reads as follows:

"JUROR NUMBER TEN: The police report. We can’t—
"THE COURT: No, sir. You cannot have anything which is not in evidence. Those are our rules of evidence.
"JUROR NUMBER TEN: This is really something that was mentioned.
"THE COURT: Sir, please. The best that I can tell you, at this point, is that you cannot have that which is not in evidence and the police report is not in evidence.
"JUROR NUMBER TEN: The reason that I mention that—
"THE COURT: Please, don’t tell me the reason, sir, please. You can only discuss the evidence. You cannot have that which is not in evidence. Okay, is there anything else? Thank you.”

The defendant now claims that the court misinterpreted the juror’s request because it is "clear that juror number ten was interested in reviewing testimony” of the police officer and was not simply seeking to justify the earlier request for the police report. We nóte, however, that defense counsel did not take that position at trial. Indeed it appears that he too interpreted the request as the court did and instead urged that the court "should have volunteered to have offered to this jury, a reading by the stenographer of any testimony concerning the police report” (emphasis added). The court was not obliged to accept this invitation, nor did it err in refusing to permit the juror to submit arguments in support of the earlier request which had been denied.

We also note that later in the trial the jury made a written request to have the officer’s testimony read back to them and after the court had read a substantial portion of that testimony, the jury indicated that they had heard enough. Thus it is clear that the jury understood the proper procedure for requesting the reading of trial testimony. In addition, defendant should not be heard to complain that the jury was denied access to any portion of the police officer’s testimony when the jury itself indicated the contrary.

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

Order affirmed in a memorandum.


text:
    George T. Piercy, Appellant, v Citibank, N.A., Formerly First National City Bank, Respondent.
    Argued November 15, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

      George A. Burrell for appellant.

      Arthur S. Linker and Arnold I. Roth for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Madam Justice Hilda G. Schwartz at Special Term.

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


text:
    In the Matter of Joseph T. Hopkins, Appellant, v Louis J. Lefkowitz, as Attorney-General of the State of New York, Respondent.
    Argued November 15, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

      William H. Keniry for appellant.

      Robert Abrams, Attorney-General (George M. Thorpe and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice Louis M. Greenblott at the Appellate Division (62 AD2d 674; see, also, Matter of Petix v Connelie, 47 NY2d 457).

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


text:
    Lolita Taylor, as Administratrix of the Estate of Cynthia L. Taylor, Deceased, et al., Respondents, v New York City Transit Authority, Appellant.
    Argued November 12, 1979;
    decided December 11, 1979

      APPEARANCES OF COUNSEL

      John A. Murray and Helen R. Cassidy for appellant.

      Larry M. Carlin for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In view of the affirmed factual findings, our only inquiry is whether there exists support in the record for the jury’s verdict. The jury could have found that, whenever taken, the photographs introduced by plaintiff were a fair and accurate representation of the condition of the penultimate step on the stairway as of the time of the occurrence. From their depictions and the testimony of plaintiff and her daughter, the jury was presented with a question of fact from which it was also entitled to conclude that it represented a negligent condition and that it was the proximate cause of plaintiff’s fall.

Nor can we say that, as a matter of law, the evidentiary basis was insufficient to demonstrate constructive notice of the defect. Specifically, the jury could have inferred from the irregularity, width, depth and appearance of the defect apparent from the concrete surface exhibited in the photographs, that the condition had to have come into being over such a length of time that knowledge thereof should have been acquired by the defendant in the exercise of reasonable care (Blake v City of Albany, 48 NY2d 875; Batton v Elghanayan, 43 NY2d 898, 900).

As to defendant’s assertion of error in the trial court’s refusal to incorporate the request to charge that the jury must find actual or constructive notice of "a defective condition on Stairway U2 [on the] 2nd step from the bottom”, the language of the court’s charge essentially paralleled the proffered instruction; in any event, no objection to the charge as given was lodged by defendant’s counsel as required by CPLR 4110-b (Pagnella v Action For A Better Community, 57 AD2d 1076; see Guaspari v Gorsky, 29 NY2d 891). Neither can it be said that the court’s refusal to charge that the absence of any record of prior accidents on the stairway might bear on the issue of foreseeability of the danger — to which an exception was taken — was erroneous since the charge, taken as a whole, adequately incorporated the substance of this request (see Spinelli v Licorich, 24 AD2d 172, 173-174, affd 19 NY2d 614; Gross v City of New York, 24 AD2d 751).

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

Order affirmed, with costs, in a memorandum.


text:
    Elwood Barringer, Individually and as Administrator of the Estate of Cornelia Barringer, Deceased, Appellant, v State Farm Mutual Automobile Insurance Company, Respondent.
    Submitted November 19, 1979;
    decided December 11, 1979
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of the Estate of Millie Galasso, Also Known as Carmela Galasso, Deceased. Peter Galasso, Appellant; Samuel K. Handel et al., Respondents.
    Decided December 11, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution and upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Estate of Meyer Kaufman, Deceased. Hyman Kaufman, as Executor of the Estate of Meyer Kaufman, Deceased, et al., Respondents; Jacob Kaufman, Appellant.
    Submitted November 19, 1979;
    decided December 11, 1979
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 36, pp 144-147).


text:
    Ragto, Inc., Appellant, v Joseph Schneiderman et al., Respondents.
    Submitted November 19, 1979;
    decided December 11, 1979
   Motion to dismiss the appeal herein denied. Cross application for extension of time to file notice of appeal granted.


text:
    Paul Halpin, Appellant, v Prudential Insurance Company of America et al., Respondents.
    Argued November 13, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Ernest Holzberg for appellant.

      Ferdinand M. Schwartz for respondents.
   OPINION OF THE COURT

Memorandum.

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

In this action, plaintiff seeks to recover compensatory and punitive damages for defendant’s alleged wrongful termination of disability benefits under a group accident and sickness insurance policy. In addition, plaintiff has interposed a cause of action against defendant insurer for malpractice allegedly committed by a physician who conducted an examination at the insurer’s request as provided by the policy. The principal issue is whether punitive damages may be awarded in these circumstances.

Inasmuch as plaintiff’s action is grounded upon private breach of contract, and does not seek to vindicate a public right or deter morally culpable conduct, punitive damages are not recoverable (e.g., Trans-State Hay & Feed Corp. v Faberge, Inc., 35 NY2d 669, affg 42 AD2d 535; Walker v Sheldon, 10 NY2d 401, 404; see Garrity v Lyle Stuart, Inc., 40 NY2d 354, 358). Contrary to plaintiff’s argument Gordon v Nationwide Mut. Ins. Co. (30 NY2d 427, 436-437) and similar cases do not hold otherwise. There, the court indicated that an insured may recover damages in excess of policy limits when such damages stem from an insurer’s bad faith refusal to settle a liability claim made by a third party. That principle can find no application where the insurer has terminated disability benefits allegedly payable to the insured, for there is no possibility of the insured being cast in damages which exceed policy limits by reason of the insurer’s conduct. Nor may the punitive damage claim be sustained under section 40-d of the Insurance Law. Assuming, without deciding, that a private damage action lies under that section, the one instance of unfair settlement practice pleaded would not constitute a general business practice within the meaning of the statute.

Finally, the malpractice cause of action must fail. Although the doctor might have been the agent of the insurer for certain purposes (but see Axelrod v Metropolitan Life Ins. Co., 267 NY 437), he was not an employee. Thus, this case falls within the general rule that a principal is not responsible for torts committed by a nonservant agent (e.g., Restatement, Agency 2d, § 250; cf. Rosensweig v State of New York, 5 NY2d 404).

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

Order affirmed, etc.


text:
    In the Matter of Jack D. Belsky, Appellant, v New York City Transit Authority, Respondent.
    Argued November 20, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Franklyn H. Snitow and Ellyn Roth Mittman for appellant.

      Kenneth Howard Schiffrin, Helen R. Cassidy and John A. Murray for respondent.
   OPINION OF THE COURT

Memorandum.

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

Following a hearing conducted by a duly appointed designee, respondent, upon review, sustained various charges of misconduct and discharged petitioner from his high supervisory position. On this appeal, petitioner does not claim that the decision was not supported by substantial evidence. Nor does he assert that the sanction imposed is shocking to one’s sense of fairness in light of the gravity of the sustained charges. Rather, he maintains that he was vested with a due process right to be heard personally by the board of the transit authority on the question of mitigation of the penalty to be imposed.

As petitioner was permitted to introduce any and all evidence deemed relevant on this issue before the hearing examiner, he was afforded all procedural and substantive rights guaranteed by law (Civil Service Law, § 75, subd 2; Matter of Simpson v Wolansky, 38 NY2d 391, 393-394). So long as the body charged with imposition of disciplinary sanctions has made an independent appraisal of the entire record compiled by its duly appointed hearing officer, as respondent has done here, a public employee has received all that the due process clause demands (Matter of Simpson v Wolansky, supra; see Mildner v Gulotta, 405 F Supp 182, 194-196, affd 425 US 901).

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

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v Joseph Yedvobnik, Appellant.
    Argued November 12, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Herald Price Fáhringer, Paul J. Cambria, Jr., and Barbara J. Davies for appellant.

      Robert M. Morgenthau, District Attorney (Brian Rosner and Jerrold L. Neugarten of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress granted and the case remitted to Supreme Court, New York County, for further proceedings on the indictment.

The affidavits submitted by the police officers in support of their application for a search warrant did not contain sufficient facts to permit the Magistrate to conclude that probable cause existed to issue a warrant for the search of an apartment belonging to defendant’s friend. The affidavits stated only that an informant who had previously supplied accurate information had told the police that defendant was conducting a bookmaking operation somewhere in Manhattan. Even were we to assume that the informant’s "tip” was imbued with sufficient indicia of reliability (see Spinelli v United States, 393 US 410; Aguilar v Texas, 378 US 108), we could not say that the warrant was properly issued, since the affidavits did not provide a reasonable basis for believing that contraband or evidence could be found in the apartment to be searched. The police officers’ observations of defendant exiting the apartment at particular hours for five consecutive days are not in themselves sufficient to justify the issuance of the warrant, since such conduct is as consistent with defendant’s innocence as it would be with a hypothesis of guilt (People v Wirchansky, 41 NY2d 130, 134-135). Nor may defendant’s reputation as an inveterate bookmaker serve to bolster the officers’ observations to the point where probable cause is established (Spinelli v United States, 393 US 410, 418-419, supra). Finally, the statement made by the informant that bookmaking operations are normally closed down for the day at approximately the same hour that defendant was seen leaving his friend’s apartment was simply too general to cast an aura of suspicion upon conduct that was otherwise susceptible of innocent interpretation.

The affidavits were not legally sufficient to establish probable cause for believing that the premises contained contraband or evidence, and thus the warrant should not have been issued. Accordingly, any evidence seized while the officers were on the premises pursuant to the authority conferred by the warrant should have been suppressed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Jasen concurs in result on constraint of People v Wirchansky (41 NY2d 130).

Order reversed, etc.


text:
    In the Matter of the Claim of Eugene Pellac, Respondent, v Atlantic Beach Club et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued November 20, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Alan R. Corn for appellants.

      Seymour M. Custen for claimant-respondent.

      Robert Abrams, Attorney-General (Morris N. Lissauer, Shirley Adelson Siegel and Henriette Frieder of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (66 AD2d 909).

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


text:
    The People of the State of New York, Respondent, v Richard Bell, Appellant.
    Argued November 14, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Patrick M. Wall for appellant.

      Roderick C. Lankier, Deputy Attorney-General, Special State Prosecutor (Michael Shapiro and Mark M. Baker of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s convictions vacated, and the case remitted to Supreme Court for further proceedings on the indictment.

For purposes of the disposition of the present appeal it suffices to address a single issue not considered by the Appellate Division or by our court on the prior appeals from defendant’s convictions at his first trial (45 AD2d 362, affd 38 NY2d 116). The original codefendant, Police Officer Reilly, was killed in an automobile accident after the first trial. The second trial therefore proceeded against defendant Bell alone. Over objection of defense counsel two conversations between Reilly and one Reyes, a drug dealer turned informer, were received in evidence on the theory that, although concededly hearsay as to Bell, they came within the exception to the hearsay rule permitting introduction of statements of a coconspirator made during the course and in furtherance of the conspiracy. It is acknowledged that defendant and Reilly were coconspirators with respect to the break-in of room 418 of the Manhattan hotel; the critical question is whether the admitted statements were made by Reilly prior to the formation of their conspiracy and thus were inadmissible against Bell.

The trial court charged the jury that if it was satisfied by a preponderance of evidence that Reilly and Bell were engaged in a plan to commit an unlawful act, it could then consider the statements made by Reilly in his conversations with Reyes. While defense counsel took exception to this charge as to the standard of proof, no counterpart exception was taken by the People. Accordingly, although under the proper standard it is sufficient if the People establish a prima facie case of conspiracy only (People v Salko, 47 NY2d 230, 238), in this instance the People accepted the heavier burden of proof by a preponderance of the evidence.

While there was some proof which might be said to tend inferentially to establish the formation of a conspiracy prior to 5:00 p.m., we are satisfied that the proof was insufficient as a matter of law to establish the existence of a conspiracy by a preponderance of the evidence until after the second Reilly-Reyes conversation. Accordingly, it was error to have permitted the jury on the second trial to have considered the Reilly-Reyes conversations in the late afternoon and early evening of April 5 for any purpose. Inasmuch as defense counsel initially objected to the introduction of the conversations and later took explicit exception to that portion of the court’s charge which permitted the jury to use those conversations in any way, the issue was properly preserved for our review.

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

Order reversed, etc.


text:
    William T. Denny, Appellant, v Mildred C. Denny, Respondent.
    Argued November 16, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Dennis B. Schlenker for appellant.

      Andrew F. Capoccia and Robert W. Kahn for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (65 AD2d 658).

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


text:
    New York Public Interest Research Group, Inc., et al., Appellants, v City of New York et al., Respondents.
    Argued November 19, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Leon Edward Wein and Dennis A. Kaufman for appellants.

      Richard W. Golden, appellant pro se.

      Paul S. Brenner for Patrolmen’s Benevolent Association and another, respondents.

      Charles G. Moerdler, Morris Weissberg, Vivienne W. Nearing and Burton N Lipshie for Uniformed Sanitationmen’s Association, respondent.

      Seymour Goldstein, Jay W. Waks and Andrew P. Weiss for Sergeant’s Benevolent Association and others, respondents.

      Edward Edenbaum for Uniformed Firefighter’s Association, Local 94, International Association of Firefighters, respondent.

      Murray A. Gordon and Walter M. Meginniss, Jr., for Uniformed Fire Officers Association, Local 854, International Association of Firefighters, AFL-CIO, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Arnold G. Fraiman at Special Term (89 Misc 2d 262).

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


text:
    United National Bank, Respondent, v Curtiss T. Ettinger, Also Known as Curtis T. Ettinger, Appellant, et al., Defendant.
    Argued November 14, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      John M. Nonna and Evan S. Widlitz for appellant.

      William C. Rosen and George H. Rosen for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from and the prior orders brought up for review should be reversed, with costs, and summary judgment dismissing the complaint granted to defendant appellant.

It is undisputed that the note is nonnegotiable and the plaintiff bank took it subject to any defenses the defendant maker could assert. It is also clear that the defendant never received title to the real property and that there was therefore a failure of consideration. On the record there is no predicate for estopping the defendant from asserting the defense of lack of consideration, as the Appellate Division has done. There is no evidence that at the time the note was issued and purchased by the plaintiff, the defendant had made any representations upon which the plaintiff relied. In addition, despite the defendant’s relationship to Tatra Realty, Inc., there was no showing that he was privy to any information, in connection with the note or the real property, which was not available to the plaintiff bank at the time it acquired the note. We further note, with respect to the suggestion that the defendant has somehow acted improperly toward the plaintiff because of his relationship and duties to Tatra, that the jury found the defendant was not guilty of any fraud against plaintiff in connection with the transaction.

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

Order appealed from and orders of the Appellate Division brought up for review reversed, etc.


text:
    The People of the State of New York, Respondent, v George Brown, Appellant.
    Argued November 19, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Lynn W. L. Fahey and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant contends that the Trial Judge did not apply the proper criteria with respect to the prosecutor’s right to cross-examine the defendant concerning his prior criminal record (People v Sandoval, 34 NY2d 371). Specifically, he claims that the court’s use of the phrase "readiness to do it again” indicates that the court was applying a propensity standard as a factor in its considerations. However, reading the court’s remarks as a whole reveals that the proper balancing test was employed, and that the readiness spoken of was not readiness to commit the same crime, but readiness to place his self-interest above that of society, for the purpose of challenging his credibility.

In addition, since the exclusion of prior convictions is a discretionary determination for the trial courts and fact-reviewing intermediate appellate courts, no further review by this court is warranted (People v Shields, 46 NY2d 764).

There is no question but that the conduct of this trial was far from ideal. The overzealous prosecution coupled with the Trial Judge’s expression, in the presence of the jury, which could have been taken as an indication of his personal belief in the guilt of the defendant was unfortunate. However, with regard to these asserted errors, and others not preserved, none would warrant reversal by this court. Indeed the dissenter at the Appellate Division, apparently discerning no basis in law for reversal, opted to do so "as a matter of discretion in the interest of justice”.

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

Order affirmed in a memorandum.


text:
    In the Matter of the Claim of Carl E. Seamon, Respondent, v Landstrom Gravel Co. et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued November 19, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Robert Eckelberger, Jr., for appellants.

      Robert Abrams, Attorney-General (Morris N. Lissauer, Shirley Adelson Siegel and Henriette Frieder of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (65 AD2d 877). Even though the board’s determination is not unanimous, there must be an affirmance if there is substantial evidence to sustain its determination.

Concur: Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Fuchsberg. Judges Jasen and Meyer dissent and vote to reverse for reasons stated in the dissenting memorandum by Mr. Justice Robert G. Main at the Appellate Division (65 AD2d 877-878).


text:
    The People of the State of New York, Respondent, v James Richard Johnson, Appellant.
    Argued November 16, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      James M. Barber for appellant.

      Patrick D. Monserrate, District Attorney (Joseph P. Pessolaro and Gary L. Sharpe of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The circumstances of defendant’s flight from and apprehension by the police investigating the burglary charge supported the inference that he had possessed the drugs found sandwiched between his wallet and notebook under a couch cushion at the scene of the arrest. Thus, proof of the burglary "would be material and admissible as evidence in chief upon a trial of’ the possession count (CPL 200.20, subd 2, par [b]). We cannot say that the trial court abused its discretion in refusing to sever these intimately connected crimes for trial (cf. People v Monger, 24 NY2d 445, 449).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v James Hall, Appellant.
    Argued November 16, 1979;
    decided December 13, 1979
    APPEARANCES OF COUNSEL

      David W. Perfetti for appellant.

      Robert F. Jones, District Attorney (Karen F. McGee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be reversed and the information dismissed.

It is a fundamental and nonwaivable jurisdictional prerequisite that an information state the crime with which the defendant is charged and the particular facts constituting that crime (People v Case, 42 NY2d 98, 99; People v Harper, 37 NY2d 96, 99; People v McGuire, 5 NY2d 523, 525). In order for an information to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be alleged (CPL 100.40, subd 1, par [c]; 100.15, subd 3).

Here the information charging harassment recited only that defendant, who it also alleges indicated that his desire was that the complainant leave the defendant’s premises, "did strike, shove and otherwise subject [the complainant] to physical contact and threatened * * * physical harm.” It failed to specify an essential element of the crime, which is that the acts be done "with intent to harass, annoy or alarm” (Penal Law, § 240.25). Absent such an allegation, the acts complained of did not constitute criminal conduct and, hence, defendant’s conviction was jurisdictionally defective (see People v Case, supra; People v McGuire, supra).

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

Order reversed, etc.


text:
    In the Matter of Laurie Mabb, Appellant, v Philip L. Toia, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued November 16, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Mark H. Wattenberg and Gerald A. McIntyre for appellant.

      Robert Abrams, Attorney-General (Clifford A. Royeal and Shirley Adelson Siegel of counsel), for Philip L. Toia, respondent.

      Roger E. Pyle for Ronald Hackett, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (64 AD2d 831).

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


text:
    Edgar Pauk, Appellant, v Board of Higher Education of the City of New York, Respondent.
    Argued November 19, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Jonathan A. Weiss and Josephine Ho for appellant.

      Allen G. Schwartz, Corporation Counsel (Ronald E. Stern-berg and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice Vincent A. Lupiano at the Appellate Division (62 AD2d 660), to which we add only that even if we accepted petitioner’s theory of estoppel the record does not establish that petitioner lacked the means of knowledge of what section 6206 (subd 3, par b) (now § 6212, subd 3, par b) of the Education Law provided.

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


text:
    CHC Food Service, Inc., Appellant, v Gordon Ambach, as Commissioner of Education of the State of New York, et al., Respondents. (Proceeding No. 1.) Food Service Dynamics, Inc., Appellant, v Gordon Ambach, as Commissioner of Education of the State of New York, et al., Respondents. (Proceeding No. 2.) Food Service Dynamics, Inc., Appellant, v Gordon Ambach, as Commissioner of Education of the State of New York, et al., Respondents. (Proceeding No. 3.) Food Service Dynamics, Inc., Appellant, v Gordon Ambach, as Commissioner of Education of the State of New York, et al., Respondents. (Proceeding No. 4.)
    Argued November 20, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Lawrence K. Katz for appellants.

      Robert Abrams, Attorney-General (Patricia C. Armstrong and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (68 AD2d 897).

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


text:
    The People of the State of New York, Respondent, v William Bell, Jr., and Thewarthur Pritchett, Appellants.
    Argued November 21, 1979;
    decided December 13, 1979

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender, for William Bell, Jr., appellant.

      Leslie A. Bradshaw for Thewarthur Pritchett, appellant.

      Lawrence T. Kurlander, District Attorney (Stephen M. Brent of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division affirming the convictions of defendants Bell and Pritchett should be reversed and the cases remitted for new trial.

There can be no question on review of the record that defendant Pritchett did not have effective assistance of counsel, within the meaning of our holdings in People v Brown (45 NY2d 852) and People v Droz (39 NY2d 457) (see, also, People v Gonzalez, 47 NY2d 606). His retained attorney not only failed to request any pretrial hearings, conduct any voir dire of jurors or make any opening statement, but also asserted as a defense in this narcotics prosecution "trafficking” without ever coherently indicating what the defense consisted of, by cross-examination of prosecution witnesses elicited incriminating hearsay evidence against his client, joined in a motion by codefendant Bell made at the end of the People’s case for dismissal of the charges against Bell on the ground that his client, Pritchett, was the only one involved, but nevertheless sought to establish an agency defense, as to which he requested an instruction to the jury, with Bell as the principal, put Pritchett on the stand and, apparently in relation to the trafficking defense elicited a confession from Pritchett as to his part in the selling of the drugs, made a largely irrelevant closing argument, and to cap it off made no sentencing statement on behalf of Pritchett at all. Such a litany establishes beyond peradventure that what is here involved is not a misguided though reasonably plausible strategy decision but clear ineffectiveness of counsel; why else proffer an unrecognizable defense or join in a motion that only his own client was involved.

In the face of the devastation wrought by Pritchett’s "defense” defendant Bell sought, but was denied, a charge that Pritchett was an accomplice as a matter of law and that, therefore, Bell could not be convicted on Pritchett’s uncorroborated testimony. The basis for the refusal was the presumption of innocence, but any inconsistency being of Pritchett’s creation Bell should not have been penalized by leaving the accomplice question to the jury as an issue of fact, when under the circumstances Bell’s conviction could not be sustained on Pritchett’s testimony alone. Nor is there any question that the refusal was error. Though most accomplice as a matter of law requests are made as to witnesses who are not codefendants, precedent exists for the giving of the requested charge as to a codefendant (People v Creighton, 271 NY 263, 281; cf. People v Diaz, 19 NY2d 547).

Finally, if such an error can be harmless it cannot be so regarded in the instant case, for we cannot say in view of the substantial credibility issues presented by the other possibly corroborating evidence that "there is no significant probability that the jury would have acquitted the defendant if the error had not been committed” (People v Crimmins, 38 NY2d 407, 412).

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

Orders reversed and cases remitted to Monroe County Court for new trial in a memorandum.


text:
    Robert Di Mezza, Appellant, v Timothy O’Connell et al., Respondents.
    Submitted December 3, 1979;
    decided December 13, 1979
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the judgment of Supreme Court entered upon a jury verdict in favor of defendants, denied. Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the denial of plaintiffs motion to set aside the verdict, dismissed upon the ground that that portion of the order is nonfinal.


text:
    Barry F. Jones, an Infant, by His Father and Natural Guardian, Michael J. Jones, et al., Respondents, v Philip A. Maphey, Sr., et al., Appellants.
    Submitted November 26, 1979;
    decided December 13, 1979
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [ii]).


text:
    Maclean Hunter, Ltd., Respondent, v Harold Michelson, Appellant.
    Submitted December 3, 1979;
    decided December 13, 1979
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art 6, § 3, subd b, par [7]).


text:
    In the Matter of David Messina, Appellant, v Sebastian Leone, as a Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted November 12, 1979;
    decided December 13, 1979
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. Motion to amend remittitur in Messina v Lufthansa German Airlines (47 NY2d 111) denied.


text:
    The People of the State of New York, Appellant, v Richard Dinkins, Respondent.
    Submitted November 26, 1979;
    decided December 13, 1979
   Motion to dismiss appeal taken by the People granted and appeal dismissed upon the ground that the order appealed from resulted, at least in part, from an exercise of discretion and, therefore, the order is not appealable (People v Johnson, 47 NY2d 124; People v Williams, 31 NY2d 151; People v Woodruff, 27 NY2d 801; People v Rainey, 27 NY2d 748). Cross motion to dismiss appeal taken by defendant granted and his appeal dismissed upon the ground that the order appealed from is not adverse to the defendant, as required by CPL 450.90 (subd 1).


text:
    The People of the State of New York, Appellant, v Ambrose Moses, Respondent.
    Submitted December 3, 1979;
    decided December 13, 1979
   Motion to dismiss the appeal herein denied.


text:
    Carlos Rios and Another, Infants, by Their Mother and Natural Guardian, Virginia Rios, Appellants, v Town of Islip et al., Respondents.
    Submitted November 12, 1979;
    decided December 13, 1979
   Motion by plaintiffs Carlos Rios and Roberto Rios, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as severed the action between plaintiffs and defendant Hill and granted a new trial limited to the issues of damages only, and cross motion by defendant Ricardo P. Hill for leave to appeal dismissed, each upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion by plaintiffs Carlos Rios and Roberto Rios for leave to appeal otherwise denied. Twenty dollars costs and necessary reproduction disbursements payable by said plaintiffs to respondent County of Suffolk.


text:
    James J. Speer, as Administrator of the Estate of Marjorie A. Speer, Deceased, et al., Respondents, v Vassar Brothers Hospital, Respondent, and Cezar Sembrano, Appellant.
    Submitted December 3, 1979;
    decided December 13, 1979
   Motion by Cezar Sembrano for leave to appeal denied, with $20 costs and necessary reproduction disbursements to plaintiff. Motion by Vassar Brothers Hospital for leave to appeal from the order of the Appellate Division dated August 23, 1979 dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 39, pp 157-160).


text:
    The People of the State of New York, Respondent, v Michael Cunningham, Appellant.
    Argued November 16, 1979;
    decided December 17, 1979

      APPEARANCES OF COUNSEL

      Michael Cunningham, pro se, and James E. Barnes, II, for appellant.

      William F. O’Brien, III, District Attorney (Edward D. Saslaw of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

For reasons stated by the Appellate Division, there was sufficient evidence to corroborate the accomplice testimony. In addition to the evidence concerning the moneygram dispatched on September 10, 1974, many of the details of the accomplice’s narrative were corroborated by the defendant’s own testimony, as well as by that of other witnesses. The corroborative evidence, although it did not independently establish the elements of the offense, was more than legally necessary. Contrary to defendant’s argument, evidence corroborating accomplice testimony "need not prove the commission of the crime. It is enough if the evidence shown to connect the defendant with the crime [reasonably] satisfies the jury that the accomplice is telling the truth” (People v Arce, 42 NY2d 179, 186; see, e.g., People v Daniels, 37 NY2d 624, 629-630). Here, the independent evidence so harmonized " 'with the accomplice’s narrative as to have a tendency to furnish the necessary connection between the defendant and the crime’ ” (People v Daniels, 37 NY2d 624, 629).

Nor was error committed when the prosecution offered proof at trial as to a portion of the criminal transaction which occurred outside the dates specified in the indictment. "It is well settled that except where time is a material ingredient of the crime the prosecution is not confined in its evidence to the precise date laid in the indictment, but may prove that the offense was committed at any time prior to the commencement of the prosecution and such proof does not constitute a material variance” (People v La Marca, 3 NY2d 452, 458-459, cert den 355 US 920; accord, e.g., People v Jackson, 111 NY 362, 369; People v Krank, 110 NY 488, 492). In any event, here, the People produced evidence from which the jury could have concluded that part of the purchase price was paid in early September, 1974, well within the September 1 to September 25 period delineated in the indictment, even though actual delivery of the controlled substances might have been accomplished during the end of August.

We have reviewed those of defendant’s remaining contentions which are preserved and find no reversible error.

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

Order affirmed in a memorandum.


text:
    Maurice Musman, Appellant, v Modern Deb, Inc., et al., Respondents.
    Argued November 20, 1979;
    decided December 17, 1979

      APPEARANCES OF COUNSEL

      Leon S. Harris for appellant.

      Steven S. Miller and Robert W. Gottlieb for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (66 AD2d 719).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer. Judge Gabrielli dissents and votes to reverse for the reasons stated in the dissenting memorandum by Mr. Justice Arnold L. Fein at the Appellate Division (66 AD2d, at pp 720-723).


text:
    In the Matter of Carl J. Shedlock, Appellant, v William G. Connelie, as Superintendent of the New York State Police, Respondent.
    Argued November 16, 1979;
    decided December 17, 1979

      APPEARANCES OF COUNSEL

      Richard J. Bookhout for appellant.

      Robert Abrams, Attorney-General (John Q. Driscoll and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the Per Curiam opinion at the Appellate Division (66 AD2d 433; see, also, Paul v Davis, 424 US 693).

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


text:
    The People of the State of New York, Respondent, v Leo Arena, Appellant.
    Argued November 15, 1979;
    decided December 17, 1979

      APPEARANCES OF COUNSEL

      Peter C. Sulli, Sr., for appellant.

      Lawrence T. Kurlander, District Attorney (Sharon P. Stiller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed. The dispositive issue on this appeal is whether a sufficient foundation was provided for the introduction of a tape recording of a conversation between defendant and his victim. We conclude that the uncontradicted testimony of that victim, who identified the recording as a fair and accurate reproduction of the conversation, was sufficient to support the decision of the trial court to admit the recording into evidence in the absence of any indication that the tape had been altered (see People v McGee, 49 NY2d 48). We have examined defendant’s other contentions, and find them to be devoid of any merit. .

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Meyer concurs on the basis stated in his concurring opinion in People v McGee (49 NY2d 48).

Order affirmed in a memorandum.


author: Meyer, J.

text:
    In the Matter of Annie Bolden, Appellant, v Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued November 14, 1979;
    decided December 17, 1979

      APPEARANCES OF COUNSEL

      Timothy Casey, David L. Posner, Joan E. Schmukler and Henry Friedman for appellant.

      Robert Abrams, Attorney-General (Carl E. Stephan and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (68 AD2d 600).

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

Meyer, J.

(dissenting). The judgment of Special Term

should be reinstated. There is no question that the Boldens qualify as a "needy” family under the Aid to Families with Dependent Children program. The sole issue on this appeal is whether they are "categorically related” to that program. The facts are undisputed.

Petitioner Annie Bolden and her husband reside with their seven children in Monticello, New York. The family has been receiving AFDC benefits at least since December of 1976. At that time Mrs. Bolden began therapy at the Sullivan County Mental Health Clinic. All parties agree that Mrs. Bolden’s mental incapacity renders her completely unemployable. Nevertheless, in August of 1978 the local social services agency terminated petitioner’s benefits on the ground that there had been no showing that her mental incapacity rendered her unable to care for her family. In short, the agency’s position is that needy children cannot qualify for AFDC benefits on account of a parent’s mental incapacity unless the parent is disabled from both the support and care functions. In adopting that interpretation the majority misreads the legislation creating the AFDC program.

The governing statute (US Code, tit 42, § 606, subd [a]) is phrased in terms of a deprivation of "support or care * * * of a parent” as Mr. Justice Williams pointed out (97 Misc 2d 271, 272), and the United States Supreme Court has agreed with that interpretation, though in dictum. In Califano v Westcott (443 US 76, —, 99 S Ct 2655, 2658) the Supreme Court, referring to section 606, noted that under it "benefits are available to any family so long as one parent of either sex is dead, absent from the home, or incapacitated”. It gave as a reason for rejecting the "principal wage-earner” construction of section 607 the fact that it would "introduce a term novel in the AFDC scheme” (443 US, at p —, 99 S Ct, at p 2665) and documented that statement in a footnote reading "The Act, for example, provides benefits to two-parent families made needy by the incapacity of either parent, regardless of which parent may have been the 'principal wage-earner.’ 42 U.S.C. § 606(a)”.

The Califano dissenters-in-part (443 US, at p —, 99 S Ct, at p 2666) apparently agreed with that construction of subdivision (a) of section 606, for instead of disputing it they suggested that the differentiation between sections 606 and 607 was that "when a parent suffers from an incapacity * * * the family usually must bear not only the costs of income lost through the one parent’s unemployment, but also medical and other expenses resulting from the disability that often are quite substantial”.

The regulations and interpretations issued by the Department of Health, Education and Welfare support the conclusion that petitioner is entitled to benefits. Subparagraph (i) of section 233.90(c)(1) of title 45 of the Code of Federal Regulations provides: "The phrase 'needy child * * * deprived * * * by reason of requires that both need and deprivation of parental support or care exist in the individual case. The phrase encompasses the situation of any child who is in need and otherwise eligible, and whose parent — father or mother— either has died, has a physical or mental incapacity, or is continually absent from the home. This interpretation is equally applicable whether the parent was the chief breadwinner or devoted himself or herself primarily to the care of the child”. And subparagraph (iv) states that: " 'Physical or mental incapacity’ of a parent shall be deemed to exist when one parent has a physical or mental defect, illness, or impairment. The incapacity * * * must be of such a debilitating nature as to reduce substantially or eliminate the parent’s ability to support or care for the otherwise eligible child”. Thus, if a child is needy and one of his parents is incapacitated, he is entitled to benefits, even though the incapacitated parent might not otherwise provide the support. Such, indeed, has been the construction of the department, for, answering the inquiry posed by Florida State officials, whether "If the father is currently acting as caretaker, must the mother’s incapacity be in relation to being a breadwinner?” the Atlanta Regional Commissioner replied that "The mother’s incapacity under Federal policy would not depend on whether she would be employable in the labor market. Nor is it necessary to determine the role the parent fulfilled prior to the onset of the incapacity.”

Since I agree with Mr. Justice Williams that petitioner was required to show only that her children had been deprived of her support or her care, I would reverse the Appellate Division’s order and reinstate the judgment.

Order affirmed, etc.


text:
    In the Matter of Nelson McGinigle, Respondent, v Town of Greenburgh et al., Appellants.
    Argued November 15, 1979;
    decided December 17, 1979

      APPEARANCES OF COUNSEL

      Joel H. Sachs, Town Attorney (Ruth E. Roth and Steven J. Mignano of counsel), for appellants.

      James M. Rose, Arthur H. Grae and Natasha H. Rose for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the original determination of the town board reinstated.

There is ample evidence in the record to sustain the determination of the town board finding respondent town employee guilty of each of the three charges preferred against him, to wit: that in the course of an altercation on July 25, 1974 he inflicted serious bodily injury on another town employee; that the fire at the water department garage on August 10, 1974 was either caused by his overt act or was the result of negligence on his part; and that he wrongfully refused to submit to a lie detector test when directed to do so by his supervisor. We address the latter two more serious charges briefly.

As to the charge in the alternative with respect to the August 10 fire, we note that this is a disciplinary, not a criminal proceeding. There is, therefore, no necessity that the town establish which of the two mutually exclusive alternative wrongs respondent committed. The disciplinary proceeding was based on his behavior the night of the fire; respondent was on notice as to the charges against him and he cannot evade the consequences of his conduct which was wrongful in either event. There is evidence in the record to sustain the conclusion either that he started the fire or that it was caused by his negligence. On either branch, and without establishing which, the town was warranted in imposing a disciplinary penalty.

As to respondent’s refusal to take the lie detector test as directed, it is his present contention, accepted at the Appellate Division, that he was under no obligation to take the test because of the unreliability of the particular equipment on which the test was to be conducted. Whether there would be merit to such a contention need not now be decided. It suffices for present purposes to note that respondent’s refusal to take the test was not predicated on this ground; at the time of his refusal he claimed that he was not obligated to take any such test, that he had a constitutional right to refuse to do so. There is no merit to such a broad assertion, and we do not understand that respondent now seriously contends otherwise. Had the ground for refusal upheld at the Appellate Division— with respect to the particular device proposed to be used— been raised in good faith at the time, the town would have had an opportunity to overcome the objection. Not having raised the issue when it could have been addressed, respondent cannot now construct the issue to sustain what was otherwise an unjustified refusal to follow the direction of his supervisor.

On the basis of the charges as sustained, there is no occasion to disturb the penalty of dismissal from the town’s employment (Matter of Pell v Board of Educ., 34 NY2d 222).

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v Gary Mandel, Michael De Vito and Theodore Buckley, Respondents.
    Argued November 20, 1979;
    decided December 17, 1979
    APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Annamarie Policriti, Barry A. Schwartz and Deborah Carlin Stevens of counsel), for appellant.

      Frederick P. Hafetz, Lawrence S. Goldman, Lawrence Hochheiser and Kenneth Aronson for Gary Mandel, respondent.

      Murray S. Bornstein for Michael De Vito, respondent.

      Lawrence Hochheiser and Andrew E. Kuchinsky for Theodore Buckley, respondent.

      Elizabeth M. Schneider and Nancy Stearns for Queens Women Against Rape and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the conviction of each defendant reinstated.

The Criminal Procedure Law was amended by chapter 230 of the Laws of 1975, effective September 1, 1975, by the addition of a new section 60.42 which significantly restricts the admissibility of evidence of the victim’s sexual conduct in sex offense cases. We agree with the unanimous conclusion of the Appellate Division that the new section was applicable in this case in which the trial was commenced on October 21, 1975, after the effective date of the section, although the criminal transaction on which the indictment was based occurred on April 4, 1975, prior to the effective date, and that as so applied, the section is constitutional, for the reasons stated in the opinion of Mr. Justice Frank D. O’Connor at the Appellate Division (61 AD2d 563).

We further agree with the Appellate Division that it cannot be concluded as a matter of law that the proof offered in this instance with respect to prior sexual conduct on the part of the victim or evidence to show her reluctance to permit her sexual partners to touch her breasts was such as to entitle defendants to the introduction of such evidence under CPL 60.42 (subd 5).

Similarly, we concur with all the members of the panel at the Appellate Division that certain determinations made by the trial court in excluding other items of proof tendered on behalf of defendants are not to be set aside as erroneous as a matter of law. The proffered evidence so rejected includes proof of prior alleged false rape complaints made by the victim. There was no sufficient proof offered that the complaints were indeed false and no showing was made that the particulars of the complaints, the circumstances or manner of the alleged assaults or the currency of the complaints were such as to suggest a pattern casting substantial doubt on the validity of the charges made by the victim in this instance or were such as otherwise to indicate a significant probative relation to such charges. Also to be so included are the tendered, so-called "Swinger” photograph of the victim (as to which considerable oral testimony was admitted), proof as to the victim’s prior vaginal condition and evidence of alleged prior beatings of the victim by her father. While none of these items comes within the proscriptive scope of CPL 60.42, in no instance can it be said that there was an abuse of the discretion vested in the trial court as to the conduct of cross-examination for purposes of impeachment.

We differ with the majority at the Appellate Division as to its determination that it was error to have excluded the records of South Oaks Hospital where the victim was confined for treatment of mental illness from April 11 to May 22, 1972. Again we note that the trial court did allow considerable freedom as to the admission of testimony as to the mental condition of the victim. The condition and treatment with respect to which the hospital records were sought to be introduced, however, were not such as to compel a conclusion of substantial materiality in this case. No expert testimony was tendered of any such medical or psychological relatedness. Accordingly, we hold that it was not an abuse of discretion as a matter of law to have excluded the evidence tendered. Nor do we find in the prosecutor’s related comment in summation any ground for reversal of defendant’s convictions.

There was no protest at trial concerning the prosecutor’s cross-examination of alibi witnesses as to their failure to appear at the office of the District Attorney or objection made to the associated comment in the prosecutor’s summation (cf. People v Hamlin, 58 AD2d 631). Accordingly, these asserted errors were not preserved for our review. We have examined the other contentions advanced by defendants in support of the reversal of their convictions and find them to be without merit.

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

Order reversed and the judgments of Supreme Court, Queens County, reinstated in a memorandum.


text:
    Julien J. Studley, Inc., Respondent, v Samuel J. Lefrak et al., Appellants.
    Argued November 19, 1979;
    decided December 17, 1979

      APPEARANCES OF COUNSEL

      Simon H. Rifkind, Robert S. Smith and Richard Briffault for appellants.

      Alan E. Bandler for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In so deciding, essentially for reasons stated in the opinion of the Appellate Division as well, we add the following comment: With respect to respondents’ claim that the present proceeding is barred by the doctrine of res judicata, it must be emphasized that the prior breach of contract action simply sought to "pierce the corporate veil” on the theory that the respondent Samuel Lefrak dominated and controlled the corporate nominees to carry on his personal business affairs. Although proof of fraud is relevant in such a suit it is not essential (2 Hornstein, Corporation Law & Practice, § 755; Lattin, Corporations, § 4, pp 67-68) and, in fact, was neither alleged in the complaint nor proved at trial.

This proceeding, brought pursuant to CPLR 5225 (subd [b]) to enforce the judgment that had been rendered against the corporate defendants in the first action, also did not depend on fraud. Proof of the transfers of the corporate assets without fair consideration could suffice to cast the respondents in the role of constructive trustees of the assets, which thus became reachable by the corporation’s creditors under sections 272-274 of the Debtor and Creditor Law, a statute that played no part in the earlier action.

In sum, therefore, even though successive actions have arisen out of essentially the same course of dealing, because " '[t]he requisite elements of proof and hence the evidence necessary to sustain recovery vary materially’ ” the subsequent proceeding is not precluded by res judicata (Matter of Reilly v Reid, 45 NY2d 24, 30). Moreover, given the differences in proofs and the fact that the legislatively sanctioned enforcement proceeding contemplates a pre-existing judgment, it cannot be said that the subsequent judgment in petitioner’s favor either destroyed or impaired the rights or interests established by the first action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307).

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

Order affirmed, with costs, in a memorandum.


text:
    Ira Stitz et al., Respondents, v Milton Stevens et al., Appellants.
    Submitted November 21, 1979;
    decided December 17, 1979

      APPEARANCES OF COUNSEL

      Elliot R. Polland for appellants.

      Norman Adams for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 588).

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


author: Gabrielli, J.

text:
    Frank B. Hall & Co. of New York, Inc., Appellant, v Orient Overseas Associates, Respondent.
    Argued November 14, 1979;
    decided December 17, 1979

      APPEARANCES OF COUNSEL

      Carole A. Burns and John P. Hale for appellant.

      A. David Benjamin, Eugene J. Morris and Michael J. De Zorett for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Article 61(b) of the lease relates tax escalation to "the issuance of a temporary or permanent Certificate of Occupancy for the Building of which the demised premises are a part and which Certificate permits Tenant to enter into occupancy of the demised premises”. Article 36 on the other hand explicitly refers the commencement of rent to the time when "a Certificate of Occupancy (temporary or final) has been issued by the Department of Buildings of the City of New York, permitting Tenant’s use of the demised premises for the purposes for which the same have been leased” (emphasis supplied). The lease contemplated a good deal of tenant’s work in the premises between "occupancy” under article 61(b) and "use * * * for the purposes for which * * * leased” under article 36. The difference in the language of the two provisions, by which the parties must be deemed to have intended different meanings, makes clear that all that was required to trigger the tax escalation provision of article 61(b) was the issuance of a temporary certificate of occupancy. Since that occurred on December 23, 1971 that is the base date for tax escalation purposes.

Gabrielli, J.

(dissenting). I respectfully dissent. On this appeal we are called upon to interpret a lease provision establishing a base year for purposes of applying a tax escalation clause. The parties entered into a 20-year lease of floors two through seven in a downtown Manhattan office building which was under construction at the time the lease was executed. The lease contained detailed specifications for the floors to be leased, and provided, inter alia, that the second floor of the building was to contain a cafeteria and office space with a total permitted occupancy of at least 192 persons. Although the lease was to take effect on January 1, 1972, the lessee was unable to occupy the building on that date because the landlord had not yet completed the work required by the lease. In fact, the tenant was not able to enter the building until April of 1972. Nonetheless, in December of 1971, the landlord obtained a temporary certificate of occupancy authorizing use of the building. Unfortunately, the certificate provided for occupancy of the second floor by a maximum of 128 people, instead of the 192 required by the lease. This admitted error on the landlord’s part was not corrected until late 1972.

The present dispute centers around a lease provision stating that a tax escalation clause in the lease is to be measured by the year in which the landlord first obtained a temporary or permanent certificate of occupancy which "permits Tenant to enter into occupancy of the demised premises.” The landlord contends that this condition was met when it obtained the temporary certificate of occupancy in 1971, even though that certificate did not permit occupancy at the level set in the lease; the lessee, on the other hand, argues that the lease provision should be interpreted as fixing 1972 as the base year since that was the year in which the landlord first obtained a certificate of occupancy which allowed the tenant to occupy the building in accord with the terms of the lease.

Contrary to a majority of this court, I would interpret this provision as triggering the escalation clause only upon issuance of a certificate of occupancy allowing the tenant to occupy the premises in accord with the lease provisions. Had the parties desired to set the base year by issuance of any certificate of occupancy for the building, there would have been no need to add the qualifying phrase that the certificate must be one which "permits Tenant to enter into occupancy of the demised premises”. Under the interpretation given this clause by a majority of this court, I assume this condition would have been met had the landlord obtained a certificate allowing occupancy by as little as one person, despite the fact that such occupancy would of course have been of no use to the tenant and certainly would not have fulfilled the requirements of the lease. Such a result would make little sense.

Minimally, it is certainly more reasonable to conclude that the parties intended to measure the tax escalation clause by the year in which the building was first legally habitable by the tenant in accordance with the lease. That year, of course, was 1972, the year in which the landlord finally obtained a certificate authorizing occupancy at the level mandated by the lease. I note, moreover, that this was also the first year in which the building actually was ready for occupancy by the tenant.

Accordingly, I vote to reinstate the judgment of Supreme Court, New York County, declaring that the escalation clause in question became fully operative in 1972.

Chief Judge Cooke and Judges Jones, Wachtler, Fuchs-berg and Meyer concur in memorandum; Judge Gabrielli dissents and votes to reverse in a separate opinion in which Judge Jasen concurs.

Order affirmed.


text:
    Michael J. Huffe et al., Appellants, v James J. Jarcho et al., Respondents.
    Submitted December 10, 1979;
    decided December 17, 1979
   Motion for substitution of counsel granted and Schoffman and Skovronsky, Esqs., 50 Court Street, Brooklyn, New York, 11201, substituted as counsel of record to appellants in the appeal herein in the place and stead of Alfred T. De Maria, Esq., and Herman Taub, Esq., without prejudice to any claims for attorneys’ fees or attorneys’ liens which Messrs. De Maria and Taub may wish to enforce in a court of original jurisdiction (see Matter of Elliott v Hoberman, 28 NY2d 898; Matter of Lydig, 262 NY 408).


text:
    In the Matter of Raya Goodell, Respondent, v Richard Goodell, Appellant.
    Submitted December 10, 1979;
    decided December 17, 1979
   On the court’s own motion, appeal herein transferred, without costs, to the Appellate Division, Third Department. A direct appeal does not lie since questions other than the constitutional validity of a statutory provision are involved and no substantial constitutional question is directly involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2). Motion for a stay dismissed as academic.


text:
    Jack E. Post et al., Appellants, v Merrill Lynch, Pierce, Fenner & Smith, Inc., et al., Respondents.
    Submitted November 26, 1979;
    decided December 17, 1979
   Motion for reargument denied. On the court’s own motion, return of remittitur requested and, when returned, it will be amended to read as follows: "Order, insofar as appealed from, modified, with costs to plaintiffs, by denying summary judgment to the defendant on the pension plan cause of action and, as so modified, affirmed. Opinion by Wachtler, J. All concur.” [See 48 NY2d 84.]


text:
    Ronald Rorie et al., Respondents, v Woodmere Academy, Appellant.
    Submitted December 3, 1979;
    decided December 17, 1979
   Motion to vacate the Court of Appeals order dated October 26, 1979 dismissing the appeal herein denied. [See 48 NY2d 753.]


text:
    Aaron Nemetsky, Appellant, v Banque De Developpement De La Republique Du Niger, Respondent, et al., Defendants.
    Argued November 21, 1978;
    decided December 19, 1979

      APPEARANCES OF COUNSEL

      Rueben Blum for appellant.

      Michael F. Maschio and Peter R. Porcino for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division dated November 3, 1978 appealed from and the order of the Appellate Division dated August 1, 1977 brought up for review should be affirmed, with costs.

The Appellate Division properly dismissed for lack of jurisdiction plaintiff’s action against defendant as guarantor of a foreign trade acceptance. Nothing in the record supports the bald assertion that defendant is doing business and thus present in New York. All that appears is a correspondent bank relationship between defendant and Credit Lyonnais and the trade acceptance connected to that relationship. These factors standing alone are insufficient to support an exercise of in personam jurisdiction (see Amigo Foods Corp. v Marine Midland Bank-N. Y., 39 NY2d 391).

Finally, the attachment of defendant’s New York funds, effected after service of the summons, cannot form the predicate for quasi in rem jurisdiction (CPLR 314, subd 3; see Siegel, New York Practice, p 125; Pennoyer v Neff, 95 US 714). We therefore do not consider the rights of the parties had the attachment preceded service of the summons (cf. Shaffer v Heitner, 433 US 186).

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

Order of the Appellate Division dated November 3, 1978 appealed from and order of the Appellate Division dated August 1, 1977 brought up for review affirmed, with costs, in a memorandum.


text:
    Central Funding Company, Respondent, v Theodore L. Deglin, Appellant, et al., Defendants. (Action No. 1.) Theodore L. Deglin, Appellant, v Central Funding Company, Respondent. (Action No. 2.)
    Argued November 21, 1979;
    decided December 19, 1979

      APPEARANCES OF COUNSEL

      Elliot Schnapp and Louis A. Mangone for appellant.

      Isaac Anolic for respondent.
   OPINION OF THE COURT

Order, insofar as it dismissed the injunction action, affirmed, with costs, for reasons stated in so much of the memorandum of the Appellate Division as relates to the injunction action (67 AD2d 673). Appeal dismissed, without costs, insofar as it is taken from the remaining portions of the Appellate Division order dealing with the foreclosure action upon the ground that those portions of the Appellate Division order do not finally determine the action within the meaning of the Constitution.

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


text:
    In the Matter of Dieudonne Roche, Appellant, v Philip L. Toia, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued November 21, 1979;
    decided December 19, 1979

      APPEARANCES OF COUNSEL

      Ralph Murphy and Michael D. Kaufman for appellant.

      Robert Abrams, Attorney-General (Shirley Adelson Siegel, Herbert J. Wallenstein ánd William J. Lee of counsel), for Philip L. Toia, respondent.
   OPINION OF THE COURT

Judgment affirmed, without costs. The commissioner’s determination was supported by substantial evidence in the record.

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