text:
    Almar Construction Corporation, Plaintiff, v P. M. Hughes & Sons, Inc., Appellant, and Board of Education, Central School District No. 2, Towns of Yorktown, New Castle & Cortlandt, Respondent, et al., Defendant. (And a Third-Party Action.)
    Decided September 13, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


source: Caselaw Access Project

license: Public Domain

text:
    Alexandra T. Bacon, an Infant, by Her Mother Janice T. Bacon, et al., Appellants, v Varick Bacon, Respondent.
    Decided September 13, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies to the Court of Appeals from the nonfinal order of Supreme Court, New York County (NY Const, art VI, § 3, subd b, par [2]; CPLR 5601, subd [b], par 2).


text:
    Bay Ridge Air Rights, Inc., Respondent, v State of New York, Appellant.
    (Claim No. 59365.)
    Submitted September 6, 1977;
    decided September 13, 1977
   Motion to dismiss appeal denied. The order appealed from is final (McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 23, n 2; Cohen and Karger, Powers of the New York Court of Appeals, § 14, p 60; § 37, pp 153-154, n 88) and appellant is a party aggrieved (Matter of Wilson, 309 NY 1011, 1012).


text:
    Castagna & Son, Inc., Plaintiff, v City of New York, Defendant-Respondent and Third-Party Plaintiff-Respondent. Gruzen & Partners, Third-Party Defendant-Respondent. Wachtel, Duklauer & Fein, Inc., Appellant, v City of New York, Defendant-Respondent and Third-Party Plaintiff-Respondent. Gruzen & Partners, Third-Party DefendantRespondent.
    Submitted July 18, 1977;
    decided September 13, 1977
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, 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 158-159).


text:
    Lewis E. Iandoli, Doing Business as Blue Ridge Fuel Company, Appellant, v Asiatic Petroleum Corporation, Respondent.
    Submitted June 27, 1977;
    decided September 13, 1977
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the mening of the Constitution (Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    Ursula H. Joachim, Respondent, v Heinrich Joachim, Appellant.
    Decided September 13, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Matter of Dougherty v Makowski, 41 NY2d 899).


text:
    Mary V. Koles et al., Respondents, v Penn Central Company, Respondent, and City of New York, Appellant.
    Submitted August 15, 1977;
    decided September 13, 1977
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Chase Manhattan Bank (N. A.), Appellant, v State of New York, Respondent.
    Submitted August 22, 1977;
    decided September 13, 1977
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: The State is directed to pay petitioner interest on the principal amount of the judgment from October 19, 1972. [See 40 NY2d 590.]


text:
    In the Matter of Robert H. Rapp, Respondent, v New York City Employees’ Retirement System et al., Appellants.
    Submitted August 15, 1977;
    decided September 13, 1977
   Motion for extension of time within which to move the reargument granted. Motion for reargument denied. The new material bearing on the legislative history of the relevant 1947 bill, belatedly submitted, is neither determinative nor persuasive on the precise issue at hand. [See 42 NY2d 1.]


text:
    In the Matter of 215 East 72nd Street Corporation et al., Appellants, v Joseph B. Klein et al., Constituting the Board of Standards and Appeals of the City of New York, et al., Respondents.
    Submitted August 15, 1977;
    decided September 13, 1977
   Motion to dismiss the appeal taken as of right granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that no substantial constitutional question is directly involved.

Motion for a preference dismissed as academic.

Motion to sua sponte deny leave to appeal to the Court of Appeals denied.


text:
    In the Matter of Rodney L. Zobrist, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Submitted August 15, 1977;
    decided September 13, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, for mootness.


text:
    The People of the State of New York ex rel. Gloria Cusano, Appellant, v Stanley Leone et al., Respondents.
    Submitted September 6, 1977;
    decided September 13, 1977
   Motion to dismiss the appeal herein denied.


text:
    Town of Babylon et al., Appellants, v Donald Middleton, as Regional Director of the New York State Department of Environmental Conservation, et al., Respondents.
    Submitted August 29, 1977;
    decided September 13, 1977
   On the court’s own motion, appeal taken as of right dismissed, without costs, and affirmation of intention to move for permission to appeal vacated upon the ground that no appeal lies to the Court of Appeals from the nonfinal and nonreviewable order of the Appellate Division vacating the temporary restraining order.

Motion to vacate statutory stay dismissed as academic.


text:
    In the Matter of M & G Convoy, Inc., Respondent, v State Tax Commission, Appellant.
    Argued August 31, 1977;
    decided October 4, 1977

      Louis J. Lefkowitz, Attorney-General (Francis V. Dow and Ruth Kessler Toch of counsel), for appellant.

      Jack J. Geller, Harold Fein and Robert C. Macek for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Jones, Wachtler and Fuchsberg. Judges Gabrielli and Cooke dissent and vote to reverse on the dissenting opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (55 Ad2d 204, 206; see, also, Complete Auto Tr. v Brady, 430 US 274).


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    MGD Graphic Systems, Inc., Respondent, v New York Press Publishing Co., Inc., Appellant.
    Submitted September 1, 1977;
    decided October 4, 1977

      Joel L. Cohen and Arthur N. Field for appellant.

      Edward F. Hayes, III, Paul J. Pennoyer, Jr., and William E. Walter for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


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    The People of the State of New York, Respondent, v Rodel Grant, Appellant.
    Argued September 2, 1977;
    decided October 4, 1977

      Bertrand J. Kahn and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Douglas Eric Grover of counsel), for respondent.
   Concur,- Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Francis J. Braun, Appellant, v New York Life Insurance Company et al., Respondents.
    Argued September 1, 1977;
    decided October 4, 1977

      Grover W. Radley, Jr., for appellant.

      Robert J. Lutz and Thomas F. O’Donnell for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


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    Locator-Map, Inc., Plaintiff, and Franklin B. Resseguie et al., Respondents, v Wayne N. Adams et al., Appellants.
    Argued August 29, 1977;
    decided October 4, 1977

      Richard F. Place for appellants.

      Franklin B. Resseguie, respondent pro se, and Israel Margolis for respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


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    The People of the State of New York, Appellant, v Vino Green, True Name Henry Dunn, Respondent.
    Argued September 6, 1977;
    decided October 4, 1977

      Robert M. Morgenthau, District Attorney (Robert M. Pitler, Peter L. Zimroth and Richard M. Seltzer of counsel), for appellant.

      Arthur M. Unterman and Milton M. Rosenberg for respondent.
   Memorandum. The order of the Appellate Division should be reversed.

On the last appeal the only question we had before us was whether the warrants authorized a search of the defendant outside the Lucas apartment. We held that the search was beyond the scope of the warrants and did not address the question of probable cause to arrest. Although the People had argued, in the alternative, that the search could be justified as incident to an arrest based on probable cause, we could not reach that issue since it had not been raised at the original hearing. Upon remand the trial court conducted a further hearing and found that the police had information from a reliable informant that the defendant and Lucas were drug dealers and that narcotics had been observed at the premises. In our view this was sufficient to establish probable cause to believe that the defendant had committed a crime. Thus the arrest, and the incidental search were lawful.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for review of the facts.

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

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


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    In the Matter of the Arbitration between Opark Construction Corporation, Appellant, and Eureka Constructors, Inc., Respondent.
    Argued August 29, 1977;
    decided October 4, 1977

      Alfred J. Swan for appellant.

      Jerrold Morgulas for respondent.
   Memorandum. The order of the Appellate Division should be affirmed, with costs.

The contract negotiated by the parties provided specifically for arbitration of any dispute arising in connection with the delay claim here asserted. Although the parties subsequently entered into a settlement agreement, its effect upon the delay claim is in dispute. Since a valid provision to arbitrate exists, the issue of whether the delay claim was released by the settlement agreement is for the arbitrator to determine. (Matter of Riccardi [Modern Silver Linen Supply Co.], 45 AD2d 191, affd 36 NY2d 945.)

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

Order affirmed.


text:
    In the Matter of the Claim of Richard G. Glamm, Appellant, v City of Amsterdam, Amsterdam Fire Department, Respondent. Workmen’s Compensation Board, Respondent.
    Argued August 31, 1977;
    decided October 4, 1977

      Paul L. Wollman for appellant.

      Joseph Jacobs for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Richard W. Beck, Jr., et al., on Behalf of Themselves and All Others Similarly Situated, et al., Appellants, v FMC Corporation et al., Respondents.
    Argued August 29, 1977;
    decided October 4, 1977

      Irving Fudeman for appellants.

      Sheldon Hurwitz and John J. Quackenbush, Jr., for FMC Corporation, respondent.

      Lawrence H. Wagner for Niagara Mohawk Power Corporation, respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Max Goldberg, Individually and as Administrator of the Estate of Craig D. Goldberg, Deceased, Appellant, v Camp Mikan-Recro et al., Respondents.
    Argued August 29, 1977;
    decided October 4, 1977

      Arthur N. Seiff for appellant.

      Steven Di Joseph, Thomas R. Newman and Barry G. Saretsky for respondents.
   Memorandum. Order affirmed. In this case, as distinguished from Vastola v Maer (39 NY2d 1019) and Caffaro v Trayna (35 NY2d 245), the original suit was not brought by one with the capacity to sue for the infant’s personal injuries, the infant then being deceased and no personal representative of his estate having been appointed. Accordingly, when the personal representative was appointed and the "second amended” summons served, both subsequent to the expiration of the Statute of Limitations, there was no pre-existing action to which it could "relate back” (see CPLR 203, subd [e]; Vastola v Maer, supra; Caffaro v Trayna, supra).

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

Order affirmed, with costs, in a memorandum.


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    James V. Alaimo, Respondent, v First Federal Savings and Loan Association of Rochester, Appellant.
    Argued August 29, 1977;
    decided October 4, 1977

      Dirk S. Adams for appellant.

      Richard S. Mayberry for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of the Estate of James F. Whipple, Deceased. Anna E. Whipple, Appellant; Janice M. Whipple et al., Respondents.
    Argued August 31, 1977;
    decided October 4, 1977

      Donald W. Kramer for appellant.

      William W. Millington for respondents.
   Memorandum. The order should be affirmed.

In providing a general bequest for the wife, the will did so in terms of a fraction of the "estate remaining after the deduction of debts, funeral and administrative expenses”. It in no other way qualified the definition of "estate” so as to create a different base for the computation of the amount of that bequest.

In the absence of the expression of a contrary intention (cf. Wetmore v Parker, 52 NY 450, 463; Matter of Ginsburg, 27 Misc 2d 586, 588), a will speaks from the time of death (Beetson v Stoops, 186 NY 456, 460; Matter of Gernon, 35 Misc 2d 12, 13). In this case, the decedent, upon his death, ceased to have any interest which he could pass by will in the two parcels of realty which he and his wife had come to hold as tenants by the entirety (5A Warren’s Weed New York Real Property, Tenancy by Entirety, § 1.05). Consequently, the two parcels were not part of his "estate” (see Sulz v Mutual Reserve Fund Life Assn., 145 NY 563, 574; Matter of Basile, 63 Misc 2d 845, 846) and may not be used in determining the amount of the widow’s general bequest.

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

Order affirmed, with costs to respondents payable out of the estate, in a memorandum.


text:
    In the Matter of Henry Calvi, Appellant, v James R. Dumpson, as Commissioner of the Department of Social Services of the City of New York, et al., Respondents.
    Argued September 2, 1977;
    decided October 4, 1977

      Arthur C. Snitjer, Emilio Gautier and Ira S. Schneider for appellant.

      Louis J. Lefkowitz, Attorney-General (William J. Leé, Samuel A. Hirshowitz and Herbert J. Wallenstein of counsel), for James R. Dumpson, respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

The hearing officer and the Commissioner of Social Services assigned an incorrect reason for denial of reimbursement for burial expenses. Normally if there were not a reversal there should be a remittal. (Matter of Barry v O’Connell, 303 NY 46; cf. Matter of Montauk Improvement v Proccacino, 41 NY2d 913.) Where, however, as here, petitioner’s claim must fail as a matter of law in view of the affirmed finding of fact that the deceased was not a " 'recipient of public assistance and care’ ” within the meaning of subdivision 4 of section 141 of the Social Services Law, no useful purpose would be served by a remittal.

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

Order affirmed, without costs, in a memorandum.


text:
    Kevin J. Collins, Appellant, v Bertram Yacht Corp., A Division of Whittaker Corporation, et al., Respondents.
    Argued September 1, 1977;
    decided October 4, 1977

      Donald E. Byrne for appellant.

      Allen N. Ross for respondent.
   Memorandum. Order affirmed. The grant of summary judgment, " 'the procedural equivalent of a trial’ ” (Capelin Assoc. v Globe Mfg. Co., 34 NY2d 338, 341; Falk v Goodman, 7 NY2d 87, 91), results in a final judgment on the merits, which bars another action between the same parties based upon the same cause of action (Dye v Lincoln First Bank of Rochester, 38 NY2d 769, 771; 6 Carmody-Wait 2d, NY Prac, § 39:39, p 492). On this record, we cannot say that the Appellate Division’s denial of the plaintiffs application to vacate the judgment entered after plaintiffs default on the summary judgment motion constituted an abuse of discretion (see Hitchcock v Peaslee, 145 NY 547; Williams v Montgomery, 60 NY 648; Cohen and Karger, Powers of the New York Court of Appeals, § 151, p 596).

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Roberto Rojas, Appellant.
    Submitted September 2, 1977;
    decided October 4, 1977

      Elliot Schnapp and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Ann Elizabeth Lewis and Robert M. Pitler of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    The People of the State of New York, Respondent, v Dominic T. Torre, Appellant.
    Argued September 2, 1977;
    decided October 6, 1977

      Hal R. Lieberman and William E. Hellerstein for appellant.

      Thomas R. Sullivan, District Attorney (George E. McVay of counsel), for respondent.
   Memorandum. The order of the Appellate Division is reversed and a new trial ordered. The primary question at trial was whether the defendant was justified in striking the victim (Penal Law, § 35.15). During trial, defendant explained that he was drawn to the scene of the altercation when he heard his brother calling out, and upon arrival, he saw his brother lying on the ground with the victim, James Kelly, standing over him and kicking him. He further testified that he climbed over a fence which separated him from the scene of the incident, and approached Kelly who turned abruptly and swung at him with a hammer which was held in his left hand, and when defendant backed off Kelly again struck at him with a screwdriver he held in his other hand. At this point the defendant grabbed the nearest instrument and swung at Kelly, striking him in the head. Kenneth Cellilo, an eyewitness to the incident, corroborated the defendant’s testimony that Kelly first swung at him with a hammer. The justification statute (Penal Law, § 35.15), as applicable in this case, sets forth two types of justification: self-defense and the defense of another. The defendant quite correctly asserted at trial that he was entitled to a charge of justification under both categories. In determining the requirements of the court’s charge, the defendant is entitled to the most favorable view of the evidence (People v Steele, 26 NY2d 526, 529), and on the basis of the above testimony a jury could have credited the defendant’s story and found that he acted in self-defense. Although the court’s charge tracked the statutory language on justification, a fair reading of the charge clearly indicates that. the jury was advised only on justification in defense of another, without any instruction on the self-defense claim. This limitation was reversible error since the trial proof adequately raised the alternative ground of self-defense as a question of' fact for the jury (People v Shanis, 36 NY2d 697, 698). The court was obliged to make it clear that this case involved both types of justification, and failure to do so requires a new trial.

The defendant also challenges a court ruling that certain Grand Jury testimony, part of which was used by the prosecution on cross-examination to impeach a defense witness, was inadmissible on redirect. The witness, Thomas Torre, testified at trial that the victim kicked him as he lay on the ground and the prosecution, in order to impeach this witness, introduced a portion of his Grand Jury testimony in which he made no mention of the kicking. On redirect, the defense offered further Grand Jury testimony of Thomas Torre in which he specifically mentioned the kicking incident but the court ruled this testimony inadmissible as an improper attempt to bolster the witness’ direct examination (see Crawford v Nilan, 289 NY 444). The rule against bolstering direct testimony was inapplicable in this situation and the court’s exclusion was error. The defense sought to explain the Grand Jury testimony used on cross-examination by showing that additional parts of that testimony included statements about the kicking incident. Where only a part of a statement is drawn out on cross-examination, the other parts may be introduced on redirect examination for the purpose of explaining or clarifying that statement (People v Regina, 19 NY2d 65, 70; People v Buchanan, 145 NY 1, 24; see Feblot v New York Times Co., 32 NY2d 486, 498; Richardson, Evidence [10th ed], § 523). The redirect examination related directly to the subject matter of the cross-examination, bore upon the question of justification, and was, therefore, proper. Since justification was the primary issue in this case, we cannot say that refusal to admit the further Grand Jury testimony was harmless error.

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

Order reversed, etc.


text:
    Flushing National Bank, Respondent, v Pinetop Building Corp. et al., Appellants.
    Argued September 6, 1977;
    decided October 6, 1977

      Robert M. Calica for appellants.

      Philip Rogers and André L. Ferenzo for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Isabel Madrid, Appellant, v City of New York et al., Respondents.
    Argued September 7, 1977;
    decided October 6, 1977

      Bernard Meyerson and Elliott A. Roberts, P. C., for appellant.

      W. Bernard Richland, Corporation Counsel (Irving Cohen and L. Kevin Sheridan of counsel), for respondents.
   Memorandum. The order of the Appellate Division should be affirmed.

The facts presented in this record, assessed in the light most favorable to the plaintiff (see Sagorsky v Malyon, 307 NY 584, 586), fail to reveal any evidence of notice, either actual or constructive, necessary to cast respondents in damages (e.g., Silva v American Irving Sav. Bank, 31 AD2d 620, affd 26 NY2d 727). A light drizzle on a damp October morning preceding the five-minute interval between the opening of Bellevue Hospital’s out-patient clinic and plaintiffs fall on its terrazzo entrance created neither an inherently dangerous condition nor a sufficient opportunity to remedy a dangerous situation if there had been one. In the absence of any showing of notice to or lack of due care by respondents, the courts below properly concluded that plaintiff had failed to make out a prima facie case. (See Powell v Gates-Chili Cent. School Dist, 41 NY2d 827, 829; cf. Miller v Gimbel Bros., 262 NY 107,108-109.)

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

Order affirmed, with costs, in a memorandum.


author: Fuchsberg, J. (dissenting).

text:
    Margaret J. Reno, Appellant, v Ismail F. D’Javid, Respondent.
    Argued September 2, 1977;
    decided October 6, 1977

      Juris G. Cederbaums, Gino E. Gallina and Eric J. Weiss for appellant.

      Richard A. Young, Peter C. Kopff and Stephen J. Pribula for respondent.
   Memorandum. Order affirmed, without costs, on the memorandum at the Appellate Division. In response to the dissenting opinion only one comment is necessary. The more grievous violation at issue is not that of the statute prohibiting abortions, itself the object of a changing legislative view, but of the paramount public policy imperative that the law, whatever its content at a given time or for however limited a period, be obeyed.

Fuchsberg, J. (dissenting).

I would reverse the order ap-

pealed from and reinstate Special Term’s order denying defendant’s CPLR 3212 motion to dismiss.

It is unnecessary, it seems to me, to reach the question of the applicability of the absolutist doctrine on which the majority relies in this case. No one can disagree with it as a matter of general principle.

The statute legalizing abortion in New York was enacted on April 11, 1970 effective as of July 1 of that year. The abortion here was performed on the plaintiff, an unmarried young woman, by the defendant physician on the intervening June 6. Assuming that the changing legislative view had not yet marked a shift in public policy as of that date and that, in any event, it did not serve to undermine the general requirement that the law be obeyed, the issue still remains as to whether there was post-abortion negligence in the nature of abandonment and whether that, rather than the abortion itself, was the proximate cause of the condition which brought the plaintiff to the threshold of death and the need for surgical removal of her reproductive organs.

The motion papers show that the plaintiff’s uterus had been perforated by the defendant. Since the perforation occurred during the abortion, the defendant may be insulated from civil liability to the plaintiff for that conduct. However, as the actor, it may be inferred that he knew it had happened and it could also be found that he was aware of the copious bleeding that ensued. To have terminated his care at that point, without any provision at all for further and immediate medical attention, could be found to constitute tortious conduct independent of the abortion per se (see Henrie v Griffith, 395 P2d 809 [Okla]; Androws v Coulter, 163 Wash 429). Accordingly, I believe the motion should have been denied at this stage of the case and the parties permitted to develop the facts more fully at trial.

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

Order affirmed, without costs, in a memorandum.


text:
    American Industrial Contracting Co., Inc., Appellant, v Travelers Indemnity Company, Respondent, et al., Defendant.
    Argued September 6, 1977;
    decided October 6, 1977

      Harris Birnbaum and Barry N. Birnbaum for appellant.

      Harry P. Sacks, Stuart M. Levine and Jeffrey A. Aronson for respondent.
   Memorandum. Order affirmed, with costs, on the memorandum at the Appellate Division. Appellant’s reliance on Rovello v Oroñno Realty Co. (40 NY2d 633) is mistaken. That case dealt only with the propriety of using affidavits in support of a motion to dismiss the complaint for legal insufficiency, that is, for failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7). In this case, where the motion, pursuant to paragraph 1 of subdivision (a), was one to dismiss on the ground that a defense is founded upon documentary evidence, the Rovello case has no application.

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

Order affirmed, with costs, in a memorandum.


text:
    Richard S. Leghorn, Respondent, v Stuart R. Ross, Appellant.
    Argued September 6, 1977;
    decided October 6, 1977

      David Simon for appellant.

      Edward Nathan for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

Although parol evidence is admissible to defeat a motion for summary judgment, no such evidence, or other evidence, aside from conclusory statements, was submitted.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Tenant’s Advisory Committee of Sky View Towers, Appellant, v Roger Starr, as Administrator of the Housing & Development Administration of the City of New York and as Commissioner of the Department of Development, et al., Respondents.
    Argued September 7, 1977;
    decided October 6, 1977

      Jessee I. Levine for appellant.

      W. Bernard Richland, Corporation Counsel (Carolyn E. Demarest and Leonard Koerner of counsel), for Roger Starr, respondent.

      Bernard Meyerson and Herman B. Zipser for Sky View Housing Corporation, respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Massachusetts Mutual Life Insurance Company, Appellant, v Robert E. Tate, Respondent.
    Argued September 1, 1977;
    decided October 6, 1977

      David R. Crow for appellant.

      Peter J. Byrnes for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke. Judge Fuchsberg dissents and votes to affirm in the following opinion.

Fuchsberg, J. (dissenting).

On the record in this case, I would adopt the findings made by the Appellate Division in its opinion, which extensively reviewed the facts and testimony presented in the trial court.

Most particularly I am persuaded to this viewpoint when I consider the role of Dr. Ferrell. Although a physician, he was also the personal friend of decedent, Mrs. Tate, and of her husband, and it appears that it was as a friend that he volunteered to consult with them on problems of a marital rather than medical nature. These consultations took place years before the policy was issued, and a lay person such as the decedent is likely to characterize them as "counseling” rather than "treatment”. There is no evidence that the marital tensions which led to the consultations had ever given rise to a diagnosis of "involutional melancholia” at any time before decedent applied for insurance.

It must be recognized that it has become increasingly common, indeed popular, for people to resort to psychologists and psychiatrists for advice in dealing with the ordinary stresses and tensions of everyday life. Similar counseling is done by members of the clergy, social workers, school counselors, various gurus, and at times even lawyers. There is no question that the insurance policy would be enforceable if the Tates had gone to any of these for help in keeping their marriage together, and it is difficult to believe it should be any different purely because the friend they went to for such help in this case happened to be a doctor. Indeed, whatever Dr. Ferrell’s own view of the capacity in which he was acting may have been, it is understandable that the decedent, when she applied for the policy, very well might not look at it as that of physician.

The insurer’s handling of the other information on decedent’s application is also significant on the issue of what it would have regarded as material when assessing risks. With complete accuracy, Mrs. Tate, who ultimately was to die of pneumonia, disclosed that she had undergone surgery for removal of a cyst on her lung and that her father had died of pneumonia at the age of 34. Yet neither of these disclosures deterred the company from selling her the policy.

With these considerations in perspective, the Appellate Division appears to have been well-justified in regarding the failure to report the visits with Dr. Ferrell as not material and, therefore, in choosing between the findings of fact at Trial Term and those at the Appellate Division, I would select the latter (see 7 Weinstein-Korn-Miller, NY Civ Prac, par 5501.16).

Order reversed, etc.


text:
    Grid Realty Corp., Respondent, v Thomas Fazzino et al., Defendants, and Dorothy Fazzino et al., Appellants.
    Argued September 7, 1977;
    decided October 6, 1977

      Bernard M. Rosen for appellants.

      Joseph D. Stim and P. J. Warmuth for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Richard Adams et al., Respondents, v "Horace” Acker, Individually and Trading Under the Name of "Horace” Acker Realty Co., et al., Defendants, and Norman Levy et al., Appellants. Fernley Realty Corp. et al., ThirdParty Plaintiffs-Appellants, v Grand Union Company, Third-Party Respondent, et al., Third-Party Defendants.
    Submitted July 25, 1977;
    decided October 6, 1977
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see CPLR 5602; Cohen and Karger, Powers of the New York Court of Appeals, § 11, p 42).


text:
    Breitman Iron Works, Inc., Plaintiff, v T. L. Rubsamen & Co., Inc., Respondent, and Frank Stork, Appellant.
    Submitted September 6, 1977;
    decided October 6, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order sought to be reviewed involves a pure question of discretion of the type not reviewable by the Court of Appeals.


text:
    Charles J. Bulson, an Infant, et al., by Charles R. Bulson, Their Parent and Natural Guardian, et al., Appellants, v State of New York, Respondent.
    (Claim No. 55229.)
    Submitted August 8, 1977;
    decided October 6, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division was not on a question of law reviewable by the Court of Appeals (CPLR 5601, subd [a], par [i]; Guaspari v Gorsky, 29 NY2d 891).


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for Phase II of Stage III of the Fulton Park Urban Renewal Project, in the Borough of Brooklyn. Abraham Kerievsky et al., Doing Business as Thatford Cabinet Co., Respondent.
    Submitted September 12, 1977;
    decided October 6, 1977
   Motion to dismiss the appeal taken as of right denied (CPLR 5601, subd [a], par [iii]; Dalrymple v Shults Chevrolet, 39 NY2d 795, 796).


text:
    The People of the State of New York, Respondent, v Richard Robles, Appellant.
    Submitted September 12, 1977;
    decided October 6, 1977
   Motion for extension of time within which to move for reargument granted. Motion for reargument denied, in the absence of manifest injustice (see People v Rivera, 16 NY2d 879, denying reargument on the ground that retroactive application after the appeal process had been exhausted would not be accorded to this court’s holding in People v Donovan, 13 NY2d 148, also a case excluding a defendant’s inculpatory statement during detention and while defendant was represented by a lawyer). [See 27 NY2d 155.]


text:
    The People of the State of New York ex rel. Lucille Robinson, Appellant, v Warden, New York City Correctional Institution for Women, Respondent.
    Submitted August 8, 1977;
    decided October 6, 1977
   Motion for leave to appeal dismissed upon the ground that the relator having been released, her liberty is no longer restrained so as to entitle her to the extraordinary writ of habeas corpus (see People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    Richard Zipay et al., Appellants, v H. Coolidge Benson et al., Defendants and Third-Party Plaintiffs-Respondents. Dyer Fitts Construction Co., Inc., Third-Party Defendant-Respondent. (And Another Action.)
    Submitted August 29, 1977;
    decided October 6, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the Appellate Division order granting a new trial, here brought up for review, did not "necessarily affect” the final judgment, as required by CPLR 5601 (subd [d]) (Martin v Alabama 84 Truck Rental, 33 NY2d 685; Cohen and Karger, Powers of the New York Court of Appeals, § 79, p 344).


text:
    The People of the State of New York, Appellant, v Joseph Stroller, Respondent.
    Argued September 8, 1977;
    decided October 11, 1977

      Robert M. Morgenthau, District Attorney (Harry I. Katz and Peter L. Zimroth of counsel), for appellant.

      Chester L. Mirsky and Kurt Anderson for respondent.
   Memorandum. The police were obligated to respond to the call and investigate the complaint of a man armed with a gun. At night in a high crime area they found the defendant who matched the description given by the caller. When, upon inquiry by the police, the defendant gave an unintelligible, unresponsive reply, the officer could then make a limited pat down search in the nature of a frisk, not to discover evidence of a crime, but in order to pursue his investigation without fear of violence (see, People v Stewart, 41 NY2d 65).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for review of the facts.

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

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


text:
    In the Matter of Edward Strausman et al., Doing Business as Barclay Apartments, Appellants, v Robert E. Herman, as Assistant Commissioner, State Rent Administration, New York State Division of Housing and Community Renewal, Respondent.
    Argued September 1, 1977;
    decided October 11, 1977

      Robert F. Dolan for appellants.

      Martin A. Shlufman and Harold Zucker for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Henry Clark et al., Appellants, v Commissioner of the New York State Department of Social Services, Respondent.
    Argued September 8, 1977;
    decided October 11, 1977

      Stanley Mailman and Lee M. Fuller, Jr., for appellants.

      Louis J. Lefkowitz, Attorney-General (John Q. Driscoll and Ruth Kessler Toch of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    The People of the State of New York, Respondent, v Gerard Thomas Masci and William Higgins Haase, Appellants.
    Argued September 6, 1977;
    decided October 11, 1977

      Livingston L. Hatch for Gerard Thomas Masci, appellant.

      Henry C. Van Acker for William Higgins Haase, appellant.

      Joseph W. Kelley, District Attorney (Bernard Kobroff of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Concourse Nursing Home et al., on Their Own Behalf and on Behalf of All Other Nursing Homes Similarly Situated, Appellants, v Hollis S. Ingraham, as Commissioner of Health of the State of New York, et al., Respondents.
    Argued September 8, 1977;
    decided October 11, 1977

      Stanley H. Lowell and Richard L. Brenner for appellants.

      Louis J. Lefkowitz, Attorney-General (Amy Juviler and Samuel A. Hirshowitz of counsel), for respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Florence McLane, as Executrix of Thomas J. McLane, Deceased. George E. Boisvert, as Ontario County Commissioner of Social Services, Appellant; Nellie A. McLane, Respondent.
    Argued September 9, 1977;
    decided October 11, 1977

      Harrison S. Downs, Sr., for appellant.

      Sam C. Bonney for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Eugene J. (Anonymous), Appellant.
    Argued September 9, 1977;
    decided October 11, 1977

      Stanley Q. Casey, John F. Middlemiss, Jr., and Leon J. Kesner for appellant.

      Howard E. Pachman, County Attorney (Anton J. Borovina of counsel), for respondent.
   Memorandum. Order affirmed, without costs. Appellant’s furtive movements behind an unoccupied automobile adjacent to farm fields justified limited police inquiry, including the request for identification, even though up to that point there might not have been probable cause for a search or arrest (see People v De Bour, 40 NY2d 210, 216-218, 220; cf. People v Morales, 42 NY2d 129, 135). It is true that the limited inquiry led defendant to produce two knives as he emptied his pockets in compliance with a police demand for identification, but disgorging of the knives did not make the inquiry a "search”. Once the police saw the knives and associated defendant with a warrant poster describing a suspected rapist, there was, of course, ample cause to hold defendant for custodial interrogation.

Appellant’s other contention, that his waiver of rights during custodial interrogation was not knowing and voluntary, is foreclosed by the findings of fact below, findings supported by the evidence.

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

Order affirmed.


text:
    Frank Barbarita, as Representative Broker of Frank Barbarita, Inc., Appellant, v Mario M. Cuomo, as Secretary of State of the State of New York, et al., Respondents.
    Submitted July 25, 1977;
    decided October 11, 1977
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601).


text:
    In the Matter of Albert J. Corbeil, Respondent, v Ronald J. Canestrari, as Mayor of the City of Cohoes, et al., Appellants.
    Decided October 11, 1977
   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 (Matter of Steele v Board of Educ., 40 NY2d 846; Matter of Clayton v Board of Educ., 40 NY2d 842).


text:
    In the Matter of Horn & Hardart Company et al., Appellants, v Philip Ross, as Industrial Commissioner of the State of New York, et al., Respondents.
    Submitted August 1, 1977;
    decided October 11, 1977
   Motion to dismiss the appeal taken as of right herein granted and the appeal dismissed, without costs, upon the ground that appellants are not aggrieved by the modification at the Appellate Division.

Motion for an order limiting time within which appellants may seek leave to appeal denied.


text:
    In the Matter of Jonas P. Relin, an Attorney, Appellant. New York State Bar Association, Respondent.
    Submitted August 15, 1977;
    decided October 11, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed upon the ground that no substantial constitutional question is directly involved, with $20 costs and disbursements on the motion to the appellant. The motion to dismiss was not made until 11 months after the appeal was taken and over five months after the filing of the record and appellant’s brief, without explanation therefor in the motion papers.


text:
    United National Bank, Respondent, v Curtiss T. Ettinger et al., Appellants.
    Decided October 11, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 11, pp 42-43).


text:
    In the Matter of Edward O’Daniel, Appellant, v Albert T. Hayduk et al., Constituting the Board of Elections of Westchester County, Respondents, and John A. De Rario, Respondent. (Proceeding No. 1.) In the Matter of Joseph W. Christiana, Appellant, v Albert T. Hayduk et al., Constituting the Board of Elections of Westchester County, Respondents, and Wilfred J. Manzo, Respondent. (Proceeding No. 2.)
    Argued October 12, 1977;
    decided October 13, 1977

      William P. Sirignano, Jack A. Addesso and Herbert N. Posner for appellants.

      Louis A. Brevetti for John A. De Rario and another, respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Falchook Markets, Inc., et al., Respondents-Appellants, v Warner Reciprocal Insurers et al., Appellants-Respondents, and Taaffe & Travers Associates, Inc., Respondent.
    Argued August 31, 1977;
    decided October 13, 1977

      Milton B. Pfeffer for appellants-respondents.

      Robert S. Newman for respondents-appellants.

      Roy E. Pomerantz for Taaffe & Travers Associates, Inc., respondent.
   Memorandum. The order of the Appellate Division is modified by remitting the case to Supreme Court for a determination of actual damages upon proper proof, and as so modified, it is affirmed, with costs to plaintiffs.

In response to plaintiffs’ motion for summary judgment in an action on a fire insurance policy issued by Warner Reciprocal Insurers, no triable issue of fact as to the existence and ownerhip of the policy by Falchook Markets, Inc., nor as to whether Falchook was bound by the mortgagee’s unauthorized tender of the policy for cancellation, was created by the insurer, and the determination by the Appellate Division granting summary judgment to Falchook will not be disturbed (CPLR 3212; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.05). However, only provable damages may be recovered and since no proper proof of the actual damage was submitted, the matter should be remitted for a determination of damages. In light of our affirmance of the grant of summary judgment, we need not reach the contingent cross appeal by plaintiffs.

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

Order modified and the case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed, with costs to plaintiffs.


text:
    The People of the State of New York, Respondent, v Clement Erwin, Appellant.
    Submitted September 9, 1977;
    decided October 13, 1977

      Theodore Rosenberg for appellant.

      Eugene Gold, District Attorney (Ellen M. Coin of counsel), for respondent.
   Memorandum. The order of the Appellate Division is reversed, the judgment vacated, the motion to suppress granted and the case remitted to Supreme Court for further proceedings on the indictment. The court, after a pretrial hearing, improperly denied defendant’s motion to suppress certain evidence as the products of an illegal search and seizure. Although the officers had reasonable cause to stop defendant for driving through a red light, the subsequent search was not incident to a lawful arrest (cf. People v Copeland, 39 NY2d 986; People v Troiano, 35 NY2d 476). A search incident to arrest is justified in the interest of protecting the officer’s safety by assuring that a defendant, in custody, has no weapons or other instruments which might be used to assault the officers or effect an escape (United States v Robinson, 414 US 218), and because the arrest itself constitutes a major intrusion upon the rights of the individual (People v Perel, 34 NY2d 462, 467). Although there may have been reasonable cause to effectuate an arrest for a traffic infraction, no such arrest was made and indeed, Officer Bennett testified that he did not even intend to issue a summons, but was merely "going to give him a warning”. There being no arrest the subsequent search of defendant’s person and his automobile can be justified only if independent reasonable cause existed. At the hearing, Officer Bennett testified that when he asked to see defendant’s motor vehicle registration, the defendant reached under the waistline of his pants, pulled out several packets of drugs and hurled them into the air, but the suppression court found this testimony "really incredible”. Credibility is a question of fact not generally subject to review in this court (People v Richardson, 41 NY2d 886, 887). The Appellate Division affirmed, and in doing so, it is notable that no new findings were made, even if it be assumed they had the power to do so. Given a finding that the officers’ testimony was not worthy of belief, a review of the record reveals no other evidence whatsoever which would be sufficient to provide reasonable cause for the subsequent search of the defendant’s person and his automobile. Under these circumstances the motion to suppress should have been granted.

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

Order reversed, etc.


text:
    In the Matter of Seena Cappetta et al., Appellants. John J. Santucci, as District Attorney of Queens County, Respondent.
    Argued October 3, 1977;
    decided October 13, 1977

      Melvin Rubin for appellants.

      John J. Santucci, District Attorney (Jon M. Bevilacqua of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed, with costs.

Petitioner’s challenges to the two subpoenas duces tecum, one addressed to him and the other to his bank, were properly rejected. As to the former, Supreme Court found that "petitioner is employed by the Board of Education as a municipal servant * * * he is a public servant dealing with public funds, responsible for public records”. The Appellate Division found no occasion to disturb this finding, nor do we. Accordingly, the records sought to be produced were those of the board of education, the employing institution, and hence were not petitioner’s private property subject to his personal privilege against self incrimination (Beilis v United States, 417 US 85, 88-90; United States v White, 322 US 694, 699).

Additionally, the records sought from petitioner fall within the "required records exception” to the privilege against self incrimination (Shapiro v United States, 335 US 1). Petitioner was required to maintain records with respect to public moneys received and dispersed by him. It is of no significance for present purposes that the obligation of record-keeping was imposed by administrative regulation rather than by State statute.

As to the subpoena addressed to petitioner’s bank, it is clear that the records sought are not subject to the constitutional privilege against unreasonable searches and seizures (United States v Miller, 425 US 435). By similar token, inasmuch as the documents are the business records of the bank and not the personal property of petitioner, to require their production by the bank cannot be said to constitute a denial of petitioner’s privilege against self incrimination.

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

Order affirmed.

       Originally a District Attorney’s "request” subpoena was served on petitioner, returnable at the District Attorney’s office. After the institution of the present proceeding, that subpoena was withdrawn.


text:
    In the Matter of Wendy Sabot, Appellant, v Abe Lavine, as Commissioner of the State of New York Department of Social Services, et al., Respondents.
    Argued August 31, 1977;
    decided October 13, 1977

      Wendy Sabot, appellant pro se.

      Louis J. Lefkowitz, Attorney-General (Peter A. Berkowsky, Samuel A. Hirshowitz and Herbert J. Wallenstein of counsel), for respondents.
   Memorandum. The judgment of the Appellate Division should be reversed.

In our view these sums deposited in the children’s accounts are not available resources within the meaning of the statute or implementing regulation (10 NYCRR 352.23) which must be exhausted before public assistance can be made available. The sums involved are not only trivial accumulations, the record shows that they are the result of small deposits—generally $5 or $10—representing, indisputably, birthday and holiday gifts from relatives and casual employment by the children themselves. It is, of course, reasonable and obvious to expect a person, applicant, recipient, or beneficiary, to utilize his own resources before receiving public assistance. But the broad humanitarian purpose of the Social Services Law does not contemplate that a person must be stripped bare, emotionally and economically, of the small sums and personal paraphernalia of trivial value and of uncertain recurrence, before applying for public assistance. Somewhere the line must be drawn. Thus it would be absurd and cruel, and therefore unintended by statute or regulation, to consider grandfathers’ watches, family pictures, family heirlooms of nominal value, toys, bicycles and small gifts to children as available "resources” which must be sold and consumed before public assistance will be made available. Any statute or regulation, but particularly social legislation, however broad, must be interpreted and enforced in a reasonable and humane manner in accordance with its manifest intent and purpose. Neither the applicable and controlling statute, nor the regulations adopted to implement the statute, in the absence of express language to the contrary, may be given an unreasonable and absurd interpretation (see, e.g., Matter of Dowling, 219 NY 44, 56; Matter of Rouss, 221 NY 81, 91; Williams v Williams, 23 NY2d 592, 599).

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

Judgment reversed, with costs, and the petition granted in a memorandum.


author: Per Curiam.

text:
    In the Matter of James F. Doherty, Respondent-Appellant, v Edward J. Mahoney et al., Constituting the Board of Elections of the County of Erie, Respondents-Appellants, and George K. Arthur et al., Appellants-Respondents, et al., Respondents.
    Argued October 12, 1977;
    decided October 13, 1977

      James Denman for James F. Doherty, respondent-appellant.

      Thaddeus J. Szymanski, County Attorney (Martin A. Schnorr of counsel), for Board of Elections of County of Erie, respondent-appellant.

      Carmen Putrino for George K. Arthur, appellant-respondent.

      Robert Boasberg for Herbert L. Bellamy, appellant-respondent.

      Leonard Berkowitz for Richard F. Okoniewski, appellant-respondent.
   Per Curiam.

In the September 8, 1977 primary in the City of Buffalo, seven candidates competed for nominations by the Democratic Party for three councilman-at-large positions. The official canvass resulted in the following tally: Arthur 29,621; Okoniewski 22,647; Bellamy 20,835; Doherty 20,611; Voskerichian 13,381; Iraci 12,355; and Vanderlip 8,969.

Candidate Doherty, who received the fourth highest number of votes, instituted this proceeding pursuant to subdivision 2 of section 330 of the Election Law seeking a new primary election on the ground that the primary had been characterized by such irregularities or fraud as to render it impossible to determine who was rightfully nominated. Following a fact-finding hearing Special Term, although it found no fraud on the part of any of these candidates, determined that there were approximately 1,053 irregular voters in three city council districts.

Special Term, reasoning that the respective margins of Arthur and Okoniewski over the third highest candidate were such that the irregularities could not change the result as to said two highest vote-getters and that there was no possibility that the alleged irregularities would have changed the result as to Voskerichian, Iraci and Vanderlip so as to move them ahead of Doherty or Bellamy to secure the third nomination, dismissed the petition as to Arthur, Okoniewski, Voskerichian, Iraci and Vanderlip and ordered that the certification of Arthur and Okoniewski as successful candidates was proper. In a second order, it directed a new primary election for the third Democratic nomination for councilman-at-large, same to be restricted to the three districts in which the irregularities were found. The Appellate Division, without disturbing Special Term’s findings of fact, modified these orders by granting the petition as to all respondents and by ordering that the new election include all seven candidates and that it be held city-wide.

Subdivision 2 of section 330 of the Election Law empowers the court to direct a new primary election where the original primary "has been characterized by such frauds or irregularities as to render impossible a determination as to who rightfully was nominated or elected”. The preamble of the section authorizes the Supreme Court to make such order as justice may require. The Charter of the City of Buffalo provides for the filling of "a vacancy in the office of * * * councilman-at-large” (see Local Laws, 1932, No. 4, §25, as amd by Local Laws, 1961, No. 6, § 7) and thus envisions that each councilman-at-large seat shall be separate from the others. Since there was no "likelihood that the questioned votes produced or could produce a change in the result” as to the two highest vote-getters (Matter of Ippolito v Power, 22 NY2d 594, 598), these two had won the primary, the voters’ choice as to these two should be respected, and it was not unjust to provide that they not be subjected to another primary election. Conversely, the same reasoning should be applied to the three candidates receiving the three lowest vote totals.

This result is consistent with that arrived at in Matter of Monkarsh v Kurtz (44 Ad2d 700), where candidate Schrieber at a village election received the largest number of votes among the candidates for two two-year positions as trustee and petitioner and the intervenor tied for second. The court stated that Schrieber must be certified as a winning candidate and remanded the proceeding to Special Term for findings as to alleged irregularities as between petitioner and the intervenor only, stating that if the alleged irregularities had a material effect on the outcome of the election, then a new election between these two candidates only must be held.

In the instant matter, the nomination is city-wide in scope and the new primary should encompass the same area. Moreover, those eligible to vote at the new primary, because of the passage of time, may well be different than those participating at the original.

Accordingly, the order of the Appellate Division, which modified the October 5, 1977 order of Supreme Court, Erie County, should be reversed and that October 5, 1977 order reinstated; and the order of the Appellate Division, which modified the October 6, 1977 order of Supreme Court, Erie County, should be modified by providing that the new citywide primary election to be held on October 18, 1977 shall include only petitioner Doherty and respondent Bellamy and, as so modified, that order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

Order which modified the October 5, 1977 order of Supreme Court, Erie County, reversed, without costs, and the October 5, 1977 order reinstated.

Order which modified the October 6, 1977 order of Supreme Court, Erie County, modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.


text:
    In the Matter of Faymor Development Co., Inc., Appellant, v Board of Standards and Appeals of the City of New York, Respondent.
    Submitted July 18, 1977;
    decided October 13, 1977
   Motion for leave to appeal dismissed upon the ground that appellant is not aggrieved by the determination of the Appellate Division (CPLR 5511; Cohen and Karger, Powers of the New York Court of Appeals, §91, p 395; Matter of Lee v Walsh, 37 NY2d 408).


text:
    International Mining Corporation et al., Respondents, v Aerovias Nacionales De Colombia S.A. et al., Appellants.
    Submitted August 8, 1977;
    decided October 13, 1977
   Motion for leave to cross appeal dismissed upon the ground that movant is not aggrieved by the determination at the Appellate Division (CPLR 5511; Cohen and Karger, Powers of the New York Court of Appeals, § 91, p 395; Matter of Lee v Walsh, 37 NY2d 408).


text:
    In the Matter of Pearl River Teachers Association et al., Appellants, v George Westbrook et al., Individually and Constituting the Pearl River Union Free School District, et al., Respondents.
    Submitted August 15, 1977;
    decided October 13, 1977
   Motion for leave to appeal dismissed upon the ground the order sought to be appealed from involves the exercise of discretion of a type not reviewable by the Court of Appeals.


text:
    Reynolds Securities, Inc., Respondent, v Underwriters Bank and Trust Company, Defendant, and Andre Rostworowski, Appellant.
    Submitted August 29, 1977;
    decided October 13, 1977
   Motion granted insofar as it seeks leave to appeal from the order of the Appellate Division which dismissed an appeal from the judgment of Supreme Court, New York County; motion dismissed insofar as it seeks leave to appeal from the order of the Appellate Division which affirmed an order denying a motion to vacate the judgment, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Frank Stork, Appellant, v Alexander Yunis, Respondent.
    Submitted August 15, 1977;
    decided October 13, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from is not appealable as of right (NY Const, art VI, § 3; CPLR 5601).


text:
    In the Matter of Robert J. Baker et al., Respondents, v Thomas M. Monahan, Jr., as a Commissioner of Elections for the County of Rensselaer, Appellant, et al., Respondent.
    Argued October 14, 1977;
    decided October 17, 1977

      Richard A. Hanft for appellant.

      Richard J. Farley, Jr., for petitioners-respondents.
   Memorandum. The order of the Appellate Division should be reversed, without costs, and the petition dismissed.

The mandate of subdivision 12 of section 143 is explicit. The Legislature has directed, as all concede that it has power to do, that failures to comply with the time prescriptions of the Election Law shall be fatal defects. The intent and effect was to make it "crystal clear that the time limitations for filing are mandatory” and to foreclose the judiciary from fashioning exceptions, however reasonable they might be made to appear (Matter of Carr v New York State Bd. of Elections, 40 NY2d 556).

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

Order reversed, etc.


text:
    In the Matter of John T. Biscone, on Behalf of Himself and All Others Similarly Situated, et al., Appellants, v George P. Scaringe et al., Constituting the Albany County Board of Elections, and Frank C. Carrk et al., Respondents.
    Argued October 14, 1977;
    decided October 17, 1977

      Frank V. Bicera for appellants.

      Thomas J. Spargo for respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Norman J. Wolf, Jr., Respondent, v Remo Acito et al., Constituting the State Board of Elections, Respondents, and Frank J. Boccio et al., Appellants.
    Argued Ocotber 14, 1977;
    decided October 17, 1977

      Richard Boecio for Frank J. Boecio, appellant.

      Cornelius J. Kelleher, Jr., for Richard A. Grimm, Jr., appellant.

      John Tabner for Norman J. Wolf, Jr., respondent.

      James B. Cantwell and Thomas P. Zolezzi for New York State Board of Elections, respondent.
   Memorandum. We conclude that the State Board of Elections acted erroneously in the manner of conducting the drawing requested by petitioner because, in the nature of the drawing chosen, petitioner bore an unequal risk of obtaining an unfavorable position of the ballot. The board, of course, had to take into account the mechanical limitations of the voting machine, and hence could not place petitioner’s name in column 2. At least Special Term’s method proposed no unfair weighting on any of the candidates. While we agree with the Appellate Division’s conclusion that the State board did not follow the directive of section 104 of the Election Law, we do not regard it as practically desirable that a new lottery should be conducted.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court, Albany County, reinstated.

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

Order reversed, etc.


text:
    In the Matter of M. Hallsted Christ, Respondent, v Isabel R. Dodd et al., Constituting the Nassau County Board of Elections, and Vincent D’Agostino, Appellant.
    Argued October 14, 1977;
    decided October 17, 1977

      Arthur D. Goldstein for appellant.

      Frank A. Firtz, Jr., for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke. Taking no part: Judge Wachtler.


author: Cooke, J. (dissenting).

text:
    Elizabeth Jensen, Respondent, v City of New York, Appellant.
    Argued August 29, 1977;
    decided October 18, 1977

      W. Bernard Richland, Corporation Counsel (Morris Einhorn and L. Kevin Sheridan of counsel), for appellant.

      Alan R. Gaines for respondent.
   Memorandum. Judgment appealed from and the order of the Appellate Division modified to strike the remand for determination of damages, and otherwise affirmed, with costs to plaintiff.

The applicable principle has been well stated by Mr. Justice Arthur D. Brennan in Roer Constr. Corp. v City of New Rochelle (207 Misc 46, 51): "[W]here, as here, the city has, without the payment of any compensation therefor, deprived the plaintiff of the use and enjoyment of all of its lands for a period of indefinite duration, the resolution and official map affecting such deprivation constitute an unconstitutional interference with vested rights of property and are, therefore, void.” (Emphasis in original.)

At the time this action was brought, as in the Roer case, the bulk of plaintiff’s property was included in the city’s official street map, and plaintiff was therefore prohibited from obtaining a building permit (General City Law, § 35). It is true that, unlike the situation in the Roer case, plaintiff here never sought a building permit. On the facts of this case, the distinction is of little moment. Plaintiff, an aged widow, had no interest in any new construction on her property, and hence no reason to seek a building permit. Her desire was to sell the premises, including her home, or at least to make badly needed repairs. But the mapping restrictions made the property virtually unsaleable, and made banks unwilling to provide financing for repairs. The result is no less a deprivation of the use and enjoyment of plaintiffs property than if she had sought and been denied a building permit. The official map, then, deprives plaintiff of use of her property without due process of law, and, as it affects plaintiffs property, is therefore void (Forster v Scott, 136 NY 577, 582-585; Roer Constr. Corp. v City of New Rochelle, 207 Misc 46, 50-51, supra; see Matter of Caperton v Village of Lawrence, 161 Misc 23, 25-26; cf. Headley v City of Rochester, 272 NY 197, 206; Rochester Business Inst. v City of Rochester, 25 AD2d 97, 101-102).

Since there has been no actual "taking” of plaintiffs property, however, there are no compensable damages. Plaintiffs relief is limited to the declaration of invalidity (see Matter of Charles v Diamond, 41 NY2d 318, 329-332; French Investing Co. v City of New York, 39 NY2d 587, 594-595, app dsmd 429 US 990; cf. Keystone Assoc. v State of New York, 39 AD2d 176, 178, affd on opn below 33 NY2d 848).

Cooke, J. (dissenting).

I dissent and vote to reverse the judgment appealed from and the order of the Appellate Division brought up for review and to dismiss the complaint. It is respectfully submitted that the majority’s determination not only veers from a prevailing body of law but creates a dangerous precedent for other similar situations.

Plaintiff, a widow in her late seventies and depending almost entirely on Social Security income, owned an irregularly shaped plot of 10,792 square feet fronting on Woodrow Road in a sparsely developed area in the Eltingville section of Staten Island. On the parcel were two structures: one, a six and one-half room frame house over a hundred years old and with a partial basement in which were two sump pumps; and, the other, a four room raised bungalow from which plaintiff concededly had no income since 1966 "as a result of a serious water problem”, the bungalow being "in an area where there is a high water table and no storm or sanitary sewers to alleviate the problem.”

In 1964, the City of New York, after a public hearing at which no opposition developed, adopted a revised map providing for a street system of the area, a part of which proposed a substantial widening of Woodrow Road and a new street designated as Anaconda Street which intersected with Woodrow Road. As a result, both of plaintiffs structures and 78% of her property area lay within the bed of these streets as proposed under the map. Significantly, it is undisputed that . the City of New York has neither appropriated any portion of plaintiff’s property to a public use nor has it denied a permit to plaintiff under section 35 of the General City Law for a building in such streets or highways.

It is settled, as a general rule of law, that mere plotting or planning in anticipation of a public improvement does not constitute a taking or damaging of the property affected (see, e.g., Matter of Mazzone, 281 NY2d 139, 147; Matter of City of New York [Avenue "D"], 200 NY 536, 543; United States v Sponenbarger, 308 US 256, 267-268; Bauman v Ross, 167 US 548, 597; Condemnation-Preimprovement Planning, 37 ALR3d 127, 132, § 3). However, this general rule is subject to exceptions, one being that, where the legal impact of a planning map so restricts the use of the property permanently or for an indefinite time in such a manner as to render the property useless for any reasonable, purpose, there is an unconstitutional taking (Arverne Bay Constr. Co. v Thatcher, 278 NY 222, 232; Rochester Business Inst. v City of Rochester, 25 AD2d 97, 102; see Condemnation—Preimprovement Planning, 37 ALR3d 127, 131, 163).

Forster v Scott (136 NY 577) was decided in 1893. It dealt with a then existing statute which provided (p 582): " 'No compensation shall be allowed for any building, erection or construction which at any time, subsequent to the filing of the maps, plans, or profiles mentioned * * * may be built * * * upon * * * any street, avenue, road, public square or place exhibited upon such maps, plans or profiles’.” It was held that, if the law were valid, "it virtually imposed a restriction upon the use of the property because it enacted that it could not be used for building purposes, except at the risk to the owner of losing the cost of the building at some time in the future” (p 583) and that "[a]s the plaintiff * * * was virtually deprived of the right to build upon his lot by the statute in question * * * it was to that extent void as to him, and created no incumbrance upon it” (pp 584-585).

Thereafter and in 1926, a substantial change in the legal picture appeared when the Legislature, by chapter 690 of the Laws of 1926, added article 3, entitled "Official Maps and Planning Boards”, to the General City Law. That article empowers the legislative body of every city to "establish an official map or plan of the city showing the streets, highways and parks theretofore laid out, adopted and established by law” (§ 26) and "whenever and as often as it may deem it for the public interest, to change or add to the official map or plan of the city so as to lay out new streets, highways or parks, or to widen or close existing streets, highways or parks” (§ 29). The adoption or revision of a general map pursuant to these provisions of the General City Law does not have the effect of divesting the title of the owner of land in the bed of a street as shown on the map; it does not have the effect of placing upon the city a duty to begin presently condemnation proceedings to acquire such land; and the city is under no compulsion to open any street shown on the map unless and until the legislative body of the city decides that it is actually needed (Headley v City of Rochester, 272 NY 197, 200-201).

In Headley, it was pointed out that a statutory requirement that a city must acquire title to the land in the bed of the streets shown on the general map or plan would create practical difficulties which would' drastically limit, if not render illusory, any power conferred on the city to adopt a general map or plan which will make provision for streets which will be needed only if present anticipations of the future development of the city are realized (p 201). On the other hand, it was observed that, to leave the land in private ownership and without compensation to the owner and encumber it with restrictions upon its use which would result in diminution in its value, might be inequitable and perhaps even beyond the power of the State (pp 201-202). To meet this difficulty, the Legislature provided in section 35 of the General City Law: "For the purpose of preserving the integrity of such official map or plan no permit shall hereafter be issued for any building in the bed of any street or highway shown or laid out on such map or plan, provided, however, that if the land within such mapped street or highway is not yielding a fair return on its value to the owner, the board of appeals or other similar board in any city which has established such a board having power to make variances or exception in zoning regulations shall have power in a specific case * * * to grant a permit for a building in such street or highway which will as little as practicable increase the cost of opening such street or highway, or tend to cause a change of such official map or plan, and such board may impose reasonable requirements as a condition of granting such permit, which requirements shall inure to the benefit of the city.”

Under the provisions of the General City Law, the owner of land in the bed of a street shown on a map remains as free to alien the land or to use it as said owner sees fit, the same as before the map was adopted, except in one respect—if the owner desires to improve the property by erecting a building for which a permit is required, the grant of such a permit is surrounded by conditions or restrictions which in many cases will act as an obstacle to such use of the land (Headley v City of Rochester, 272 NY 197, 203, supra). If the restriction placed upon the property is necessary to promote the general welfare and does not deprive the owner of use for a reasonable purpose, then an attack under section 35 must fail (Rochester Business Inst. v City of Rochester, 25 AD2d 97, 102, supra; cf. Matter of Winepol v Town of Hempstead, 59 Misc 2d 768, 769 [Meyer, J.]; see 40 Albany L Rev 447, 463, n 83).

Here, in neither her pleadings nor proof, does plaintiff make claim that she has been deprived of the enjoyment of her land by the inability to erect a structure thereon or that she has been prevented from obtaining a permit for such a purpose. The function of the court is limited to determining the rights of the persons or of property which are actually controverted in the particular case before it; to complain of a ruling one must be made a victim of it; and a person, to defeat a law, cannot invoke an apprehension of what might be done under it and which, if done, might not receive judicial approval (Oriental Blvd. Co. v Heller, 27 NY2d 212; New York Mobile Homes Assn. v Steckel, 9 NY2d 533, 538; Headley v City of Rochester, 272 NY 197, 204, supra).

The gravamen of plaintiff’s complaint seems to be that defendant’s action in adopting the map has rendered the property unmarketable so that the premises can neither be conveyed or mortgaged. This mere inability to sell or mortgage, because of a reduced value resulting from the map adoption, is not compensable. "A reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership. They cannot be considered as a 'taking’ in the constitutional sense” (Danforth v United States, 308 US 271, 285). "This reasoning * * * has been applied time and time again to deny compensation based upon the asserted theory that the threat of condemnation constitutes an actual taking * * * and the rule has evolved in this State denying direct recovery for the manifestation of an intent to take * * * or threat to condemn” (City of Buffalo v Clement Co., 28 NY2d 241, 255-256 [1971]).

It is undisputed that plaintiff made no application for a permit pursuant to section 35 of General City Law. Absent proof that plaintiff applied, as permitted in said section, for a permit to erect a building in one of the mapped streets, and that the application was denied, she has not spelled out a cause of action for the determination of whether, under the circumstances, there has been a taking or deprivation without just compensation (Platt v City of New York, 276 App Div 873; Kresge Co. v City of New York, 194 Misc 645, 648, affd 275 App Div 1036; Vangellow v City of Rochester, 190 Misc 128, 132, 136 [Van Voorhis, J.]). This failure by plaintiff to apply for such a permit is in marked contrast to the situation in Roer Constr. Corp. v City of New Rochelle (207 Misc 46), relied on by the majority, where there was an application for and a denial of a building permit (pp 49-50).

Since the proof demonstrated that plaintiff was not aggrieved by an inability to erect a building upon her premises or to use same for a reasonable purpose, since her inability to sell or mortgage because of reduced value is not compensable and since there was no application for a permit under section 35, summary judgment should have been granted to defendant rather than plaintiff.

The net result would be no different if a municipality envisioned plans on a wider scale, not to encompass a major portion of a single parcel or even a few parcels, but to envelop an entire neighborhood. Surely, the vagaries of changing needs, public attitudes and economic conditions could visit substantial delay upon the proposed project, but even the impending impact of the cloud cast upon the neighborhood’s future would not in itself entitle a single owner to a declaration of the plan’s unconstitutionality as to him. The economic forces which might deter financing or sale of the property subject to the implied threat of condemnation would not dissipate by such a declaration since these powers would never contemplate that an island would be allowed to remain in the area once the plans were implemented. Hence, the effect of any such declaration as to a single property would be a futile gesture to the aggrieved owner, won at the cost of erasing imaginary lines, which at present lack being or substance, and replacing them with a declaration by the court which will not bar ultimate implementation of the plan in its entirety by condemnation.

Indeed, in this light, the court, by declaring the map unconstitutional as to plaintiff, furnishes no assurance that the implied threat of condemnation which plaintiff contends to have impaired salability and mortgageability of her fee will be removed.

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

Judgment appealed from and the order of the Appellate Division brought up for review modified, with costs to plaintiff, in accordance with the memorandum herein and, as so modified, affirmed.

         Since generally, in the absence of statutory provisions to the contrary, the damages are assessed as of the date that the property is taken (see 19 NY Jur, Eminent Domain, § 143), plaintiff would be compensated for the value of any improvements made under a permit issued pursuant to section 35 of the General City Law. The recording of the map "does not restrict in any way the use or improvement of lands * * * before * * * condemnation * * * nor does it limit the damages to be awarded in such proceedings” (Bauman v Ross, 167 US 548, 597; emphasis added).


text:
    The People of the State of New York, Respondent, v Larry Gurley, Appellant.
    Argued September 7, 1977;
    decided October 18, 1977

      Myron Beldock, Kathleen Wresien and Nancy S. Baxter for appellant.

      Eugene Gold, District Attorney (Ellen M. Coin of counsel), for respondent.
   Memorandum. The order of the Appellate Division is affirmed.

Defendant’s present claim of error regarding the trial court’s charge and that certain evidence was improperly received in evidence is unavailing. It is manifest that no alleged errors were preserved for our review by either exception or proper objection. His failure to take appropriate exception or to request further clarification at a time "when the court had an opportunity of effectively changing” any instruction preserved no question of law in connection therewith reviewable by this court (CPL 470.05, subd 2; People v Robinson, 36 NY2d 224, 228-229; People v Kibbe, 35 NY2d 407, 413-414). We have examined defendant’s other arguments which we find to be without merit.

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

Order affirmed.


author: Cooke, J. (dissenting in part).

text:
    In the Matter of Marshall R. Speed, Appellant-Respondent, v Paul J. Regan, as Chairman of the New York State Board of Parole, Respondent-Appellant.
    Argued September 2, 1977;
    decided October 18, 1977

      Nathaniel A. Barrell and Charles D. Halvorsen for appellant.

      Louis J. Lefkowitz, Attorney-General (Frederick R. Walsh and Jean M. Coon of counsel), for respondent-appellant.
   Concur: Judges Gabrielli, Jones, Wachtler and Fuchs-berg. Judge Cooke dissents in part and votes to modify in the following opinion in which Chief Judge Breitel and Judge Jasen concur.

Cooke, J. (dissenting in part).

I dissent in part and vote for modification of the order of the Appellate Division, by deleting that part thereof which held petitioner entitled to the reasons for the establishment of his minimum period of imprisonment and by ordering a dismissal of the petition.

Petitioner pleaded guilty to the class B felony of manslaughter in the first degree, committed on September 2, 1972. He was sentenced in Supreme Court, Erie County, on May 9, 1973 to an indeterminate sentence of zero to 25 years. On March 13, 1974, a minimum. period of imprisonment hearing was conducted, following which three members of the Parole Board fixed appellant’s minimum period of imprisonment at four years.

Petitioner thereafter commenced this article 78 proceeding against the Chairman of the New York State Board of Parole, by a petition dated February 24, 1975, for a judgment requiring the "furnishing to each and every prisoner requesting release on parole, written reasons for the denial thereof.” After a hearing in Supreme Court, Wyoming County, judgment was entered, determining that "no minimum period of imprisonment has ever legally been set by the State for this inmate” and directing: (1) that petitioner "be returned to Supreme Court, Erie County for resentence with the Court setting the minimum sentence as it has power to do under Penal Law § 70.00”; and (2) that, in default of such resentence within 60 days, petitioner be discharged from custody. On appeal, the Appellate Division, Fourth Department, reversed said judgment and remitted the matter to the Board of Parole for the giving of reasons why the board established his minimum period of imprisonment at four years.

The Appellate Division was correct in holding that it was error for Supreme Court, Wyoming County, to direct that petitioner be returned to the Supreme Court, Erie County, "for resentence with the Court setting the minimum sentence as it has the power to do under Penal Law § 70.00” and that, upon failure to so resentence, petitioner be discharged. Section 70.00 (subd 3, par [b]) of the Penal Law provides, inter alia, that, where the sentence is for a class B felony and the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that the ends of justice and best interests of the public require that the court fix a minimum period of imprisonment, the court may fix such a minimum. When the minimum is so fixed, "the court shall set forth in the record the reasons for its action”. Paragraph (c) of said subdivision then goes on to provide: "In any other case [other than as specified in paragraphs (a) or (b)], the minimum period of imprisonment shall be fixed by the state board of parole in accordance with the provisions of the correction law.” The fixing of the minimum period of imprisonment under paragraph (b) is a "matter entirely within the court’s discretion”, the purpose of the language of the paragraph being to indicate that a minimum does not have to be imposed as a matter of course (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 70.00, p 199). The effect of the Supreme Court, Wyoming County, judgment directing resentence with a "setting [of] the minimum sentence * * * under Penal Law § 70.00” would be destructive of the discretion reposed in the sentencing court. Supreme Court, Wyoming County, lacked authority to order petitioner’s parole release, or to make it conditional on a resentence in the sentencing county, since the parole of residents of State correctional facilities is a matter committed to the discretion of the Parole Board and cannot be obtained upon application of such a resident (Correction Law, § 214, subds 1, 4).

It is submitted, however, that the Appellate Division, relying on Matter of Festus v Regan (50 AD2d 1084), was in error in holding that petitioner was entitled to be given reasons why the board established his minimum period of imprisonment at four years. Section 212 of the Correction Law is devoid of statutory direction that reasons be ascribed for setting the minimum period of imprisonment by the Board of Parole. A court assumes a great responsibility in reading into a statute words which are not there and, in the absence of clear necessity, it is a legally incorrect thing to do (Matter of Palmer v Spaulding, 299 NY 368, 372; see McKinney’s Cons Laws of NY, Book 1, Statutes, § 92). It is obvious that there is no necessity to engraft any such requirement upon the Legislature’s enactment since a substantial body of case law supports the proposition that the due process and equal protection clauses do not compel a furnishing to petitioner by the Board of Parole of a written statement of reasons for fixing his minimum period of imprisonment (see People ex rel. Artese v New York State Bd. of Parole, 54 AD2d 1047; Matter of Festus v Regan, 40 NY2d 1091 [dismissing appeal taken on constitutional grounds from order pursuant to decision at 50 AD2d 1084]; cf. Matter of Briguglio v New York State Bd. of Parole, 24 NY2d 21, 26; Matter of Cummings [Michael] v Regan, 45 AD2d 415, 416-417, revd 36 NY2d 969, 971; Menechino v Oswald, 430 F2d 403, 408-409, cert den 400 US 1023). Indeed, neither does petitioner raise or urge any constitutional issue before this court, nor does he supply any statutory citation requiring a written statement of reasons by the board upon fixation of a minimum period of imprisonment.

Although the Board of Parole, about 22 months subsequent to the setting of petitioner’s minimum period, adopted a policy of giving reasons, retroactive effect would be a matter for the Legislature and the board’s new policy should not be retroactively applied by the courts, since it would have a devastating effect upon the parole system and since due process is not involved in the nonadversary administrative determination of the minimum period of imprisonment (see People ex rel. Artese v New York State Bd. of Parole, 54 AD2d 1047, supra; cf. People ex rel. Donohoe v Montanye, 35 NY2d 221, 225; People ex rel. Calloway v Skinner, 33 NY2d 23, 32-33; Matter of Bye, 12 Cal 3d 96, 111-112, cert den sub nom. Procunier v Bye, 420 US 996).

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v Anthony Giammarino, Appellant.
    Argued September 9, 1977;
    decided October 18, 1977

      Henry M. Gargano for appellant.

      Eugene Gold, District Attorney (Beth S. Lasky and Laurie Stein Hershey of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    The People of the State of New York, Respondent, v Barclay Farenga, Vincent Nastase and Peter Savino, Appellants.
    Argued September 9, 1977;
    decided October 18, 1977

      Albert C. Aronne and Jeffrey A. Rabin for appellants.

      Eugene Gold, District Attorney (Suzan Picariello of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

The tax investigator’s testimony, taken as a whole in conjunction with information supplied to him by his supervisor, furnished the requisite probable cause for him to enter the driveway and observe the activity there (cf. People v Rizzo, 40 NY2d 425; People v Hanlon, 36 NY2d 549, 557-559; People v Malinsky, 15 NY2d 86, 91; People v Coffey, 12 NY2d 443, cert den 376 US 916).

Furthermore, though a private driveway leading to a home is not outside the area entitled to protection against unreasonable search and seizure (US Const, 4th Arndt; NY Const, art I, § 12; see United States v Magana, 512 F2d 1169, cert den 423 US 826; cf. People v Doerbecker, 39 NY2d 448, 452), the record in this case reveals that the driveway here was one in which the defendants’ activities were carried on in such an overt manner that the suppression court had a right to find that the investigator, in positioning himself there, had not invaded an area as to which defendants had a logical expectation of privacy (see People v Doerbecker, supra, p 452; United States v Magana, supra, p 1171; Wattenburg v United States, 388 F2d 853, 857; cf. Mancusi v De Forte, 392 US 364; People v Abruzzi, 42 NY2d 813, affg on opn at 52 AD2d 499). Also, the truck and other vehicles then available to the defendants for speedy and wholesale removal of the large stock of cigarettes presented exigent circumstances which made search and seizure of the contents of the garage in which they were located permissible without a warrant (cf. People v Vaccaro, 39 NY2d 468, 472-473; People v Clements, 37 NY2d 675, 679, cert den 425 US 911).

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

Order affirmed.


text:
    Theodore W. Kraus, as Administrator of the Estate of Theodora Kraus, Deceased, et al., Respondents, v Ford Motor Company, Appellant.
    Argued October 11, 1977;
    decided October 18, 1977
   Appeal dismissed, with costs. The stipulation for judgment absolute tendered on this appeal is not unconditional as is required by CPLR 5601 (subd [c]) (see, e.g., Lanman v Lewiston R. R. Co., 18 NY 493).


text:
    In the Matter of Association of Surrogate’s and Supreme Court Reporters Within the City of New York et al., Appellants, v City of New York et al., Respondents.
    Submitted September 26, 1977;
    decided October 18, 1977
   Motion to dismiss the appeal granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved (see Cohen and Karger, Powers of the New York Court of Appeals, § 55, pp 252-254).


text:
    In the Matter of Theodore Rosenberg, Respondent, v John F. Keenan, as Special State Prosecutor, Appellant.
    Submitted August 22, 1977;
    decided September 7, 1977
   Motion for leave to appeal treated as an application pursuant to CPL 460.20 and assigned by the Chief Judge to Judge Hugh R. Jones for determination.


text:
    The People of the State of New York, Appellant, v Theodore Rosenberg, Respondent.
    Submitted October 11, 1977;
    decided October 18, 1977
   Motions for stay pending appeal granted to the extent of staying so much of the order of the Appellate Division as prohibits prosecution of an appeal by the Special Prosecutor and directs the District Attorney for Kings County to assume prosecution of the indictment. [See Matter of Rosenberg v Keenan, 42 NY2d 1094; People v Rosenberg, 42 NY2d 1097.]


text:
    Donald Schanbarger, Appellant, v State of New York, Respondent.
    (Claim No. 59399.)
    Submitted August 22, 1977;
    decided October 18, 1977
   Motion for leave to appeal dismissed upon the grounds that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and involves a question of discretion of the type not reviewable by the Court of Appeals.


text:
    In the Matter of Joseph G. Cairo, Jr., Appellant, v Stanley Harwood et al., Constituting the Board of Elections of the County of Nassau, and Ralph G. Caso, Respondents. (And Another Proceeding.)
    Submitted October 14, 1977;
    decided October 19, 1977

      Joseph G. Cairo, Jr., pro se, John P. Clearly and Paul Macielak for Joseph G. Cairo, Jr., appellant.

      Aldo J. Caperna for Ralph G. Caso, respondent.
   Memorandum. The order of the Appellate Division is affirmed, without costs.

The requirement of section 138 (subd 2) of the Election Law that sheets of an independent nominating petition shall be in substantial compliance with the form set forth in that section, has been met. While strict compliance with the section would eliminate extensive litigation, it should be noted that this case does not involve either an omission of required information (cf. Matter of Vari v Hayduk, 42 NY2d 980) or an omission of the declaration of support and nomination (cf. Matter of Christiana, 120 Misc 423).

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

Order affirmed.


text:
    In the Matter of Eli Wager, v New York State Board of Elections et al. In the Matter of Angelo D. Roncallo et al., Appellants, v Secretary of State of the State of New York et al., and Eli Wager et al., Respondents.
    Argued October 14, 1977;
    decided October 19, 1977

      Paul W. Lynch for appellants.
    A. Thomas Levin for respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke. Taking no part: Judge Wachtler.