text:
    Loblaw, Inc., Appellant, v Employers’ Liability Assurance Corp., Ltd., Respondent.
    Argued September 3, 1982
    decided October 14, 1982

      APPEARANCES OF COUNSEL

      Beth L. Hoffman and Chris G. Trapp for appellant.

      Diane F. Bosse for respondent.
   OPINION OF THE COURT

Memorandum.

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

The record shows that a medical evaluation commissioned by Loblaw in April, 1966 determined that the employee had suffered a permanent partial disability. In addition an appraisal of the potential liability made at Loblaw’s request concluded that this could result in a very expensive claim in view of the comparative youth of the employee. A little more than a year later Loblaw’s agent informed it that a reserve of $31,500 was warranted and a subsequent medical evaluation of the employee confirmed the permanence of the injury and its extent. Nevertheless Loblaw did not notify the insurance company until June 20, 1972.

On the particular facts of this case it cannot be said that the Appellate Division erred when it held, as a matter of law, that Loblaw’s ongoing obligation to give notice of any claims arising under the policy was not complied with when it failed to give notice until five years after being informed that this claim might exceed $25,000.

Fuchsberg, J.

(concurring). This appeal, directly involving the interpretation of the language of an insurance policy, presents us with an opportunity to provide much-needed clarification of the confusion which now so frequently attends the construction of such contracts. In the hope that it will prove useful on that score, I therefore venture to set out the views on which I base my vote.

The case comes to us in the context of a suit brought by the plaintiff, Loblaw, Inc., a retail chain, under a “workmen’s compensation excess insurance policy” issued to it by the defendant, Employers’ Liability Assurance Corporation. By its terms, Employers’ agreed to reimburse Loblaw for any amounts beyond $25,000 which the latter might be required to pay for any one accident; Loblaw qualified as a self-insurer for the $25,000 retention (Workmen’s Compensation Law, § 50 cf. Vehicle and Traffic Law, § 316 [liability “self insurance”]).

The pivotal question is whether Loblaw complied with the excess policy’s notice provision. In pertinent part, it reads: “The Self-Insurer, upon the occurrence of any accident which in the opinion of the Self-Insurer may involve liability on the part of the Company shall give immediate written notice thereof, with the fullest information obtainable at the time, to * * * the Company * * * The Self-Insurer shall give like notice with full particulars on any claim made or suit brought on account of such accident”.

Relevant too is the policy’s prescription that: “The Self-Insurer shall assume charge of the settlement or defense of any claim made or proceeding instituted against the Self-Insurer but the Company shall be given the opportunity and shall have the right, to be exercised at its own election and at its own expense, to be associated with the Self-Insurer in the defense and control of any claim or suit or proceeding relative to any accident where in the opinion of the Company there is a possibility of the loss exceeding the amount to be borne by the Self-Insurer”.

These clauses before us, we turn to the events governing this litigation, both those relating to the underlying compensation claim from which it emanates and those bearing directly on whether the notice necessary to implicate the excess coverage was given.

It all starts with an accident on February 24,1964, when a Loblaw employee, then in apparent good health, sustained a work-related back injury. It is undisputed that while, as first reported, the injury was relatively slight, over the next 14 months it took a troublesome course which led to three hospitalizations, one for back surgery, whose aftermath, according to a medical evaluation commissioned by Loblaw in April, 1966, was permanent partial disability. Concomitantly, an appraisal of the financial exposure the employee’s compensation claim then represented, made for Loblaw by the licensed insurance adjusting company which acted as its agent in such matters, advised it that the claim “can prove very expensive because here we have a fairly young man and this can go on forever”.

Up to this point, Loblaw had given no notice of the occurrence to Employers’. Nor did it do so when, on September 28, 1967, the agent advised Loblaw that a reserve of $31,500 was warranted. Indeed, though reports of intervening medical examinations produced equally pessimistic prognoses, the matter remained unreported to the excess carrier as late as December, 1970, when the agent not only drew its principal’s attention to the fact that the latter already had paid out $21,061.04 against this open-ended claim, but also politely, but expressly, suggested that it “might wish to contact the excess carrier”. Nevertheless, as is now conceded, it was not until June 20,1972 that notice was despatched to Employers’. The latter’s response, in July, was in the form of a letter reserving the right to disclaim, and, in October after investigation, the exercise of that purported right on the ground that its insured failed to timely comply with the notice clause. There followed this suit, for a declaration of rights and for all payments due under the policy.

After a nonjury trial, Supreme Court, Erie County, held, explicitly that, until “shortly” before it advised Employers’ of the ongoing claim, Loblaw entertained a genuine opinion that the claim “was not likely to exceed the retention figure” and, implicitly, that, so long as Loblaw held that opinion, no matter its subjectivity, no notice was required. On that rationale, the court entered an order (1) directing Equitable to reimburse Loblaw for $21,751.64, the sum by which the $25,000 retention had by then been exceeded, and (2) declaring that Employers’ was obligated as well to reimburse Loblaw for all future medical and compensation payments on account of this claim.

On appeal, however, the Appellate Division, Fourth Department, held, first, that Loblaw’s obligation under the agreement was not so limited but an ongoing one and, second, that, by May, 1969, it surely was derelict in not notifying Employers’. In reaching this second conclusion, it placed specific reliance on (1) medical diagnoses which, as of that date, well over five years after the accident, continued to certify the permanent nature of the claimant’s disabling injury, (2) on the $14,000 which the steadily mounting compensation payments then had already réached, and (3) on the fact that the 55-year-old claimant (who under the life expectancy tables of the United States National Center for Health Statistics had a life expectancy of 20.8 years [NY PJI2d, 1981 Cum Supp, p 225]) had many compensable years ahead of him. Accordingly, the court reversed the order from which the appeal was taken and, on the facts and on the law, dismissed the complaint. I agree that we should uphold this result, but on the ensuing analysis.

To that end, at the outset I observe that, judicial statements to the contrary notwithstanding, the interpretative principles applicable to a contract of insurance generally are indistinguishable from those to which courts may resort in treating with other contracts (e.g., Molycorp, Inc. v Aetna Cas. & Sur. Co., 78 AD2d 510). Therefore, absent an ambiguity admitting of extrinsic proof, and none was tendered here, its construction presents an issue of law to be decided by the court from its consideration of the policy itself, including those factual elements which may be said to be integral to it (Sutton v East Riv. Sav. Bank, 55 NY2d 550, 554-555; Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169, 172; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291).

Thus, while courts, given the fact that in most instances insurance policies are drawn unilaterally by their issuers, have frequent occasion to say that such an agreement is to be construed strictly in favor of the insured and against the insurer (e.g., Breed v Insurance Co. of North Amer., 46 NY2d 351, 353), this is no more than to restate, in an insurance milieu, the long-established proposition that a contract’s residual doubts or ambiguities are to be resolved against the party who prepared it (Evelyn Bldg. Corp. v City of New York, 257 NY 501, 513; Moran v Standard Oil Co., 211 NY 187, 196). The corollary, of course, then must be that, when the meaning of an insurance contract is plain and clear, not only are all parties including the insurer who supplied it, entitled to have it enforced according to its terms (Government Employees Ins. Co. v Kligler, 42 NY2d 863), but this entitlement is not to be subverted by straining to find an ambiguity which otherwise might not be thought to exist (1 Couch’s Cyclopedia of Insurance Law [2d ed], § 15:85; 13 Appleman, Insurance Law & Practice, §§ 7401-7402). So, if the only reasonable construction is one favorable to the insurer-drafter of the agreement, there should be no reluctance to follow it (Hollander v Nationwide Mut. Ins. Co., 60 AD2d 380, 384, mot for lv to app den 44 NY2d 646).

On the other hand, when there is ambiguity, the status of the party who authored the policy is not to be confused with that of a party who happens to be an insurer but issued no policy or of one in a position like that of Loblaw, who was merely a self-insurer.

It must be remembered however that Loblaw claimed no ambiguity. It follows that its contention that the policy nevertheless was to be read in its favor simply because it was the product of Employers’ draftsmanship is unconvincing. For Loblaw urges us to hold that the word “upon” in the “upon the occurrence of any accident” phrase of the notice clause be read so literally that the excess carrier’s coverage would be involved only “immediately after the occurrence took place or the claim was brought”. Since the injury, when it occurred, did not appear to be a serious or lasting one, so narrow a construction would compel us to hold that Loblaw, justifiably arriving at a negative opinion at that early stage, was relieved of any future obligation to give notice, no matter how large the claim later might turn out to be.

But in construing an agreement, whether it is facially clear is not the be all of things. The broader aim is “a practical interpretation of the expressions of the parties [so] that there be a ‘realization of [their] reasonable expectations’ (1 Corbin, Contracts, § 1)” (Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 400; see, also, 4 Williston, Contracts [3d ed], § 600, pp 284-285). To achieve this purpose, all the more so when the focus, as here, is on a particular provision, it hardly needs saying that the writing must be viewed in its totality (Fleischman v Furgueson, 223 NY 235, 239; Restatement, Contracts 2d, § 202, subd [2]). Moreover, a court must look for the meaning of the writing to “parties of the kind” who contracted it, bearing in mind the “interests” it was intended to further (4 Williston, op. cit., § 607, p 378; see Restatement, Contracts 2d, § 202, subd [1]).

So measured, it cannot be doubted but that Employers’, in conditioning its risk on Loblaw’s agreement to the notice provision, was serving its “interests”, among other things, in setting appropriate reserves and in protecting itself against the possibility of fraud or other abuse by timely investigation (see Security Mut. Ins. Co. of N. Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440; Utica Sanitary Milk Co. v Casualty Co. of Amer., 210 NY 399, 403). That these objectives were within the contemplation of “parties of the kind” we have here, one an insurance company and the other a supermarket chain operator, who, in the handling of the claims it reserved to itself as a self-insurer, presumably was alert to the self-evident problems stale claims could pose.

Furthermore, when one examines the rest of the agreement, the existence of this concern is all the clearer. The separate clause, by which Employers’ expressly reserved the “right * * * to be associated with the Self-Insurer in the defense and control of any claim” raising even a “possibility” that its cost would transgress excess limits, hardly envisions a passive role, dependent on the subjective judgment of Loblaw alone. Surely given the inexactness of medical science, the word “possibility” imposed an obligation to give notice when Loblaw knew or, by an objective standard, reasonably should have known that excess coverage would be involved. Also, when, by this standard, the facts prevailing at the time of the claim, or thereafter, did not warrant giving such notice, Loblaw still had to meet what I construe to be an ongoing obligation to do so if and when changed conditions did so warrant. Otherwise, unless an accident was undeniably catastrophic or near-catastrophic from the beginning, for all practical purposes the notice clause would be reduced to meaninglessness, a legally disfavored result (see Theatre Guild Prods. v Insurance Corp. of Ireland, 25 AD2d 109, 111, affd 19 NY2d 656).

It therefore cannot be said that the Appellate Division erred when it held, as a matter of law, that Loblaw had an ongoing obligation to give notice of claims which, reasonably, might involve Employers’ coverage. But it is unnecessary to pass on whether, either on the law or on the facts, Loblaw’s failure to give such notice by May, 1969 was a breach of this condition. Suffice it to say that, on the equally uncontested facts existing on December 20, 1970, when the $14,000 which had been expended by May, 1969 had reached over $21,000, the notice it despatched on June 20, 1972 was too late as a matter of law.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur; Judge Fuchsberg concurs in a concurring opinion; Judge Gabrielli taking no part.

Order affirmed, with costs, in a memorandum.

       When the policy issued what is now known as the “Workers’ Compensation Law” was still called the “Workmen’s Compensation Law” (L 1978, ch 79, § 1).


source: Caselaw Access Project

license: Public Domain

text:
    George Figliola et al., Appellants, v Anthony R. Ameruso, as Commissioner of the Department of Transportation of the City of New York, et al., Respondents.
    Decided October 14, 1982

      APPEARANCES OF COUNSEL

      Joseph Frost for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Joan E. Handler of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. Mandamus does not lie in the absence of a clear legal right.

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


text:
    In the Matter of Stephen L. Alaimo et al., Appellants, v David Axelrod, as Commissioner of Health of the State of New York, et al., Respondents.
    Decided October 14, 1982

      APPEARANCES OF COUNSEL

      Louis J. Balsamo for appellant.

      Robert Abrams, Attorney-General (.Alan W. Rubenstein of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, petition granted and respondents’ determination annulled (see Matter of Hodes v Axelrod, 56 NY2d 930, mot for rearg den 57 NY2d 775).

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


text:
    Harold Carlucci et al., Plaintiffs, and Osborne Hill Grocery, Inc., Appellant, v Poughkeepsie Newspapers, Inc., et al., Respondents.
    Decided October 14, 1982

      APPEARANCES OF COUNSEL

      Richard I. Goldsand for appellant.

      Robert C. Bernius for respondents.
   OPINION OF THE COURT

Memorandum.

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

We do not reach the issue of gross irresponsibility decided by the Appellate Division because we conclude, as a matter of law, that the article was not of and concerning the corporation. The reading public acquainted with the parties and the subject (see Sydney v Macfadden Newspaper Pub. Corp., 242 NY 208, 214) could not take the article, which never mentioned the corporation, stated that the individual named was the owner of the store and referred only to his gambling activity, as “of and concerning” the corporation, the more particularly because a corporation cannot be arrested.

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

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


text:
    Newsday, Inc., Respondent, v C. L. Peck Contractor, Inc., et al., Appellants. (And a Third-Party Action.)
    Decided October 14, 1982
   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 (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of Roosevelt Rhodes, Appellant, v George D. Salerno, as Chairman of the State Board of Elections, Respondent.
    Argued October 13, 1982
    decided October 15, 1982

      APPEARANCES OF COUNSEL

      Lanny E. Walter for appellant.

      Thompas P. Zolezzi for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the memorandum opinion of that court (90 AD2d 587).

We would only add that section 6-146 of the Election Law requires a candidate nominated by a political party other than of a party of which he is an enrolled member to accept or decline that nomination “in a certificate signed and acknowledged by him.” The statute further provides that failure to comply will render the nomination null and void. We have repeatedly said that statutory commands as to matters of content must be strictly complied with. (Matter of Ruiz v Sachs, 43 NY2d 894, 895; Matter of Hutson v Bass, 54 NY2d 772, 774; Matter of Frome v Board of Elections of Nassau County, 57 NY2d 741.) The courts enjoy no discretion to allow candidates to deviate from these legislative mandates.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Ira Gammerman et al., Appellants, v Board of Elections of the City of New York et al., Respondents. Shirley Levittan et al., Proposed Intervenors-Respondents.
    Argued October 15, 1982
    decided October 15, 1982

      APPEARANCES OF COUNSEL

      Paul H. Asofsky for Ira Gammerman and others, appellants.

      Frederick A.O. Schwarz, Jr., Corporation Counsel {Leonard Koerner of counsel), for Board of Elections of the City of New York, respondent.

      Herbert Rubin for Jack Rosenberg and others, respondents.

      Peter C. Hein for intervenors-respondents.
   OPINION OF THE COURT

Order affirmed, without costs. We agree with the Appellate Division that the defect of late filing is not curable for the reasons assigned.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Judge Fuchsberg dissents and votes to reverse in the following memorandum: The drastic result in this case is the consequence of the harsh rule this court enunciated in such cases as Matter of Rutter v Coveney (38 NY2d 993) and Matter of Higby v Mahoney (48 NY2d 15). Reiterating the views I expressed in those cases, I would find an exception for the extraordinary circumstances which confront us now and reverse.


text:
    In the Matter of James J. Leff, Appellant, v Board of Elections of the City of New York et al., Respondents. Shirley Levittan et al., Proposed Intervenors-Respondents.
    Argued October 15, 1982
    decided October 15, 1982

      APPEARANCES OF COUNSEL

      James J. Leff, appellant pro se.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Leonard Koerner of counsel), for Board of Elections of the City of New York, respondent.

      Victor Herwitz, respondent pro se, and for Jack Rosenberg, respondent.

      Herbert Rubin for Harold Baer, Jr., and others, respondents.

      Peter C. Hein for intervenors-respondents.
   OPINION OF THE COURT

Order affirmed, without costs (see Matter of Gammerman v Board of Elections of City of N. Y., 57 NY2d 888, decided herewith).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Judge Fuchsberg dissents and votes to reverse in the following memorandum: The drastic result in this case is the consequence of the harsh rule this court enunciated in such cases as Matter of Rutter v Coveney (38 NY2d 993) and Matter of Higby v Mahoney (48 NY2d 15). Reiterating the views I expressed in those cases, I would find an exception for the extraordinary circumstances which confront us now and reverse.


author:
Chief Judge Cooke
      Fuchsberg, J. Meyer, J.

text:
    In the Matter of Mohawk Finishing Products, Inc., Respondent, v State Division of Human Rights et al., Appellants.
    Argued September 1, 1982
    decided October 19, 1982

      APPEARANCES OF COUNSEL

      Sara Toll East and Ann. Thacher Anderson for State Division of Human Rights, appellant.

      Dennis B. Schlenker for Michele Cushing, appellant.

      William E. Moore for respondent.
   OPINION OF THE COURT

Memorandum.

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

It is not necessary for us on this appeal to decide what is the applicable standard for determining whether an employer has discriminated against an employee under our State statute because the employee opposed a practice forbidden under the Human Rights Law (Executive Law, § 296, subd 1, par [e]; subd 3-a, par [c]; subd 7) — i.e., whether it is the standard invoked by the Federal courts under the Federal legislation (that charges of retaliatory discrimination may be sustained if there is a finding that the employee believed that the employer had engaged in a forbidden practice and that there was a reasonable basis for such belief), or the rule applied in the Appellate Division in this case under our State statute (that such charges may be sustained only if it is later determined that the practice in question was indeed statutorily forbidden).

In this case, already once remitted to the appeal board “for the purpose of clarifying its findings of fact and decision” (70 AD2d 1016), neither the commissioner nor the board made a finding that there was a reasonable basis for complainant’s belief that the employer’s practices were forbidden. The only finding was that complainant “believed” that the practices were in violation of the statutory proscription. The board and complainant chose to proceed on the basis of this finding alone. It is not, however, a sufficient finding under the Federal standard. We could now make a factual determination that there was a reasonable basis for complainant’s belief only if we were to do so as a matter of law, but the record before us justifies no such determination. The Appellate Division standard was not met inasmuch as it was determined that the practices of which the employee complained did not in fact violate the Human Rights Law.

Accordingly, inasmuch as the board has met neither the Federal nor the Appellate Division standard in this case, there is no sufficient basis for the determination that this employer discriminated against complainant because she opposed practices forbidden by the Human Rights Law, and there is no need to determine which is the applicable standard.

Chief Judge Cooke

(concurring). The underlying issue should be addressed. Accordingly, I vote for affirmance for the reasons stated in the memorandum of the Appellate Division (83 AD2d 970).

Fuchsberg, J.

(dissenting). On this appeal, both parties and the amicus curiae have exhaustively briefed and argued the issue of the appropriate standard for invocation of the antiretaliation provision of the Human Rights Law (Executive Law, § 296, subd 1, par [e]). Meeting this question head on, I believe we now should hold that the statute makes it unlawful for an employer to discriminate against employees who oppose employment practices they reasonably believe to be discriminatory, and this though the practices in fact later are found to have been lawful. So deciding, the present case should be remitted to the State Division of Human Rights for a specific finding as to whether there was a reasonable basis for the employee’s belief that her employer was engaging in sex discrimination.

I respectfully suggest that it is neither fair nor wise for us to avoid reaching the underlying question, since the wording of the prior remittal by the Appellate Division to the board was cast in terms which did not focus on the legal question at the heart of this case. The court’s failure to do so, however jurisprudentially explained, sacrifices the claimant’s substantive rights to an intrajudicial procedural snare. Worse, I submit, it ill serves the strong anti-discriminatory policies the Human Rights Law was designed to advance (Executive Law, § 300).

The events which led to this proceeding had their beginning when Michele Cushing, who then had been a satisfactory member of Mohawk Finishing Products Corporation’s office staff for some six years, in response to a management request for employee questions or comments prepared and presented a petition in which she and other female employees complained of what they perceived to be sex discrimination in hiring and work benefit practices. The central concern of their communication was that, of the 32 women and 8 men who constituted the office force, all the men were on salary but all except one of the women were on a less well-compensated hourly basis. Be that as it may, as the State Division of Human Rights was to find in a factual determination, which in due course the Human Rights Appeal Board sustained as supported by substantial evidence, within a day after the petition was delivered Ms. Cushing was “terminated because she opposed practices which she believed to be discriminatory”; on this basis it granted her relief, including compensatory damages for her loss of wages. This award the division made though, at the same time, it further found no evidence that the disparity in the terms of employment of the male and female office employees was gender based.

On reviewing the board’s order of affirmance, a divided Appellate Division, declaring the order “inconsistent and confusing” in that the appeal board found “the employer * * * did not discriminate against its female office workers” while the statute forbade termination for opposing “practices forbidden by the Human Rights Law”, annulled the determination and remitted the matter to the board “for the purpose of clarifying its findings of fact and decision” (70 AD2d 1016, app dsmd 48 NY2d 1027, mot for lv to app den 49 NY2d 702). On this remand, the appeal board merely reaffirmed its position that the division’s determination had been supported by substantial evidence. Thereupon, the Appellate Division opined that only the second clause of section 296 (subd 1, par [e]), i.e., the one covering retaliation for actually having “filed a complaint, testified or assisted in any proceeding”, absolutely protects any individual (83 AD2d 970).

It is notable that the Appellate Division, neither in remanding nor in its ultimate decision, expressly indicated that it had given any consideration to the fact that the administrative decision may very well have been based on a statutory construction under which, so long as a person who opposes a forbidden practice acts, even if mistakenly, in good faith and with a reasonable belief that the practice involved is unlawful, “absolute protection” is provided by the first clause as well. After all, it is the Human Rights Division to whose enforcement the Legislature committed the section. And the power of an agency so circumstanced to play an interpretative role, though not unlimited, is, of course, now an established principle of administrative law (Matter of Burger King v State Tax Comm., 51 NY2d 614, 620; Ostrer v Schenck, 41 NY2d 782, 786; Matter of Howard v Wyman, 28 NY2d 434, mot for rearg den 29 NY2d 749).

Such an interpretation would hardly have been an esoteric one. Rather, it would have been especially apt since, in construing the comparable language of the antiretaliation provision of the Civil Rights Act of 1964 (US Code, tit 42, § 2000e-3, subd [a]), the model which guided New York’s draftsmen, Federal courts consistently have found that a “reasonable belief” reading of the first clause is in harmony with its purpose (e.g., Payne v McLemore’s Wholesale & Retail Stores, 654 F2d 1130, cert den 455 US 1000; Berg v La Crosse Cooler Co., 612 F2d 1041; Sias v City Demonstration Agency, 588 F2d 692; Hearth v Metropolitan Tr. Comm., 436 F Supp 685, 688; see, also, Albermarle Paper Co. v Moody, 422 US 405, 421).

Moreover, that such a holding may have been at the root of the administrative ruling, and so understood by the board, can have come as no surprise. Even if only implicit, it was obvious, at least after the board’s second affirmance. For the Appellate Division’s second order, the one before us now, was accompanied by an opinion which, distinguishing between the first and second clauses of the section and venturing the prediction that the court’s holding would not “frustrate the purposes behind the Human Rights Law” by “forc[ing] those employees who feel victimized by unlawful discrimination to act at their peril” (83 AD2d, p 971), in effect, though not in so many words, goes on to meet the substantive issue we are now called upon to review. Indeed, realistically read, the Appellate Division’s decision clearly reflects a doctrinal difference with the position the Human Rights Division urges upon us.

Returning, therefore, to the substantive issue, it is difficult to quarrel with the proposition that a narrow and overly literal interpretation of the clause at issue would put an employee who makes informal objection to what appears to be discriminatory treatment at the risk that, if it turned out that the situation was misjudged, a reprisal would follow. The resulting chill on the making of complaints, no matter the genuineness of the beliefs which prompted their presentation, seems self-evident. And, surely, by restricting the statutory safeguard to cases in which a formal administrative complaint has been lodged, resolution by conference, mediation or other personal interplay is more likely to be discouraged than not. All this would be totally at odds with the manifest remedial nature of the Human Rights Law.

Accordingly, bearing in mind that whatever it may or may not have intended to do implicitly, the Human Rights Division made no explicit finding with regard to the genuineness and reasonableness of the complainant’s belief that discrimination existed, I would reverse the order of the Appellate Division and remit to the State Division of Human Rights for express determination of the reasonableness question.

Meyer, J.

(dissenting). Although the commissioner’s finding, affirmed by the board, that complainant “believed she was opposing discriminatory practices by Respondent” does not include the word “reasonably” as a modifier of “believed”, the reasonableness of her belief is implicit from the findings, likewise affirmed, that a number of female employees other than complainant signed the petition she prepared and that all but one of 32 female employees received lower hourly rate pay and fewer fringe benefits than did the eight male and one female employees in salaried positions (cf. Sias v City Demonstration Agency, 588 F2d 692, 695-696). So to conclude is not to engage in forbidden fact finding on our part, but to recognize what logic, though not the commissioner’s words, compel. I would, therefore, reach the issue and like Judge Fuchs-berg adopt the Federal standard.

Accordingly, I also dissent and vote to reverse but, having concluded that reasonableness has, indeed, already been found, I would reinstate the board’s determination rather than remit.

Judges Jasen, Jones and Wachtler concur; Chief Judge Cooke concurs in result in a separate memorandum; Judge Fuchsberg dissents and votes to reverse and remit the matter in an opinion; Judge Meyer dissents and votes to reverse and reinstate the determination of the State Human Rights Appeal Board in another opinion; Judge Gabrielli taking no part.

Order affirmed, with costs, in a memorandum.

      . The amicus, The Equal Employment Opportunity Commission, is the Federal agency charged with the administration, interpretation and enforcement of the Federal laws prohibiting employment discrimination, including title VII of the Civil Rights Act of 1964, as amended (US Code, tit 42, § 2000e et seq.), the progenitor of our own Human Rights Law.

      . Section 296 (subd 1, par [el) of the Executive Law makes it an unlawful practice “to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under [the Human Rights Law] or because he has filed a complaint, testified or assisted in any proceeding under this article”. In addition to section 296 (subd 1, par |e]), which involves opposition to employment discrimination, other sections of the Human Rights Law have identical antiretaliation provisions, viz., section 296 (subd 3-a, par [cl) (age discrimination in employment) and subdivision 7 of section 296 (discrimination in housing accommodations).

      . Our dismissal was for lack of finality.

      . Section 704 (subd (al) of title VII (78 US Stat 257; US Code, tit 42, 8 2000e-3, subd [a]) provides, “It shall be an unlawful employment practice for an employer to discriminate * * * because [the employee! has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title”.


text:
    The People of the State of New York, Appellant, v Cecil Z., Respondent.
    Decided October 19, 1982

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (.Richard E. Haftel of counsel), for appellant.

      Henriette D. Hoffman and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

That court properly interpreted and applied the youthful offender statute in this instance. CPL 720.20 (subd 1) provides in pertinent part: “Upon conviction of an eligible youth, the court must order a presentence investigation of the defendant. After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender.”

This subdivision contemplates a two-determination procedure. First, as envisioned by the first sentence of the subdivision, there must be a determination at the time of conviction as to whether the defendant is an “eligible youth” (as defined in CPL 720.10, subd 2), and if he is found to be an eligible youth the court must order a presentence investigation. Second, in accordance with the prescription of the second sentence, “at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender”, making that determination in accordance with the criteria set forth in paragraphs (a) and (b) of subdivision 1.

CPL 720.10 (subd 2, par [c]), the operative statutory provision for present purposes, as part of its definition of “eligible” youth, provides that a defendant, otherwise qualified, shall be an eligible youth unless “such youth has previously been adjudicated a youthful offender following conviction of a felony”. This restriction, relating to the eligible youth determination, is applicable at the time of conviction.

We turn, then, to consideration of the facts of the present case in the light of this statutory scheme: On February 11, 1980 in consequence of his double plea defendant stood convicted of two crimes, a weapons charge and burglary. The court was required to determine whether he was an “eligible youth” and if so, to order a presentence investigation report. Thus, his status as an eligible youth was determined at that time, and of course, he had not then previously been adjudicated a youthful offender. Accordingly, the restriction in CPL 720.10 (subd 2, par [c]) did not apply. On June 12, 1980 at sentencing the court was called on to make a determination as to whether defendant was a youthful offender. Paragraph (c) was not then relevant inasmuch as it imposed a restriction only on the eligible youth determination and not the youthful offender determination. The sentencing court was therefore authorized in its discretion to determine that defendant was a youthful offender with respect to either or both convictions.

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

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


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    Philippe L. Maitrejean et al., Appellants, v Levon Properties Corporation et al., Respondents.
    Decided October 19, 1982

      APPEARANCES OF COUNSEL

      Charles T. Matthews for appellants.

      W. RobertDevine and Maris Veidemanis for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order, insofar as appealed from, affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 605).

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


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    In the Matter of B. Altman & Co., Respondent, v City of White Plains et al., Appellants.
    Decided October 19, 1982

      APPEARANCES OF COUNSEL

      Paul Bergin, Corporation Counsel, and Adolph Koeppel for appellants.

      Frederick J. Martin for respondent.
   OPINION OF THE COURT

Memorandum.

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

The valuation of assessed property is essentially a question of fact (Grant Co. v Srogi, 52 NY2d 496, 510). Accordingly, where, as here, the determinations of value made at nisi prius have been affirmed at the Appellate Division, those valuations must be upheld unless there has been an error of law in the use of an erroneous theory of valuation or unless the record does not contain evidence to support them (Matter of Seagram & Sons v Tax Comm. of City of N. Y., 14 NY2d 314, 317).

There is record support here for Special Term’s determination of value. Special Term essentially relied on petitioner’s expert’s appraisal method, which in part utilized nationwide abstracts of percentage lease rates in calculating income. The expert testified that the statistical data on which he based his opinion is widely relied on in the shopping center trade. As such, this data may be considered in determining value (see Matter of Woolworth Co. v Commissioner of Taxation & Assessment of City of Plattsburgh, 45 Misc 2d 701, mod 26 AD2d 759; see, also, Matter of Adcor Realty Corp. v Srogi, 54 AD2d 1096, mot for lv to app den 41 NY2d 806). That such data may be said to have been given controlling significance in this instance does not establish error of law, at least where, for articulated and acceptable reasons, the trial court rejected the evidence of comparables introduced by the taxing authority.

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

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


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    In the Matter of North Ridge Enterprises, Inc., Appellant, v Town of Westfield et al., Respondents.
    Decided October 19, 1982

      APPEARANCES OF COUNSEL

      Michael J. Bollender for appellant.

      Robert H. Daley for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. The record supports the town board’s determination for which there is a rational basis.

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


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    The People of the State of New York, Respondent, v Charles Hoover, Appellant.
    Decided October 19, 1982

      APPEARANCES OF COUNSEL

      William E. Hellerstein and John D.B. Lewis for appellant.

      Mario Merola, District Attorney (Debra S. Reiser of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed and a new trial ordered. The trial court erred in permitting the prosecution to elicit testimony regarding defendant’s statements in that the prosecution was duty bound to inform the defense of the existence of those statements, which in effect were used as direct evidence of guilt (People v Ricco, 56 NY2d 320), pursuant to CPL 710.30 (People v Briggs, 38 NY2d 319).

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


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    Sara Braun et al., Appellants, v St. Vincent’s Hospital and Medical Center et al., Defendants, and Lawrence Zingesser, Respondent.
    Decided October 19, 1982

      APPEARANCES OF COUNSEL

      Bert Bauman for appellants.

      Deborah F. Peters for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and the case remitted to the Appellate Division, Second Department, for further proceedings. On this record, there is no basis for setting aside, as a matter of law, the determination of Special Term that this doorman came within the contemplation of CPLR 308 (subd 2) (duPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 797).

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


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    Weir Metro Ambu-Service, Inc., Appellant, v Sophia Turner et al., Respondents.
    Decided October 19, 1982

      APPEARANCES OF COUNSEL

      Robert J. Dinerstein for appellant.

      Doris G. Traub for respondents.
   opinion of the court

Memorandum.

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

Plaintiff’s first cause of action failed to allege either the elements of scienter or deceit, each essential to a cause of action for fraud (24 NY Jur, Fraud and Deceit, § 140). Insufficient too, is the plaintiff’s second cause of action since the oral agreement on which it was based contravened the requirement that a contract to perform services for a medical facility which has been issued an operating certificate or certificate of approval be in writing (10 NYCRR 400.4 [a] [1]; see Tooker v Inter-County Tit. Guar. & Mtge. Co., 295 NY 386). Finally, as to the third cause of action, punitive damages may not be sought as a separate cause of action (see Trans-State Hay & Feed, Corp. v Faberge, Inc., 42 AD2d 535, affd 35 NY2d 669).

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

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


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    AFA Protective Systems, Inc., Respondent, v American Telephone and Telegraph Company, Inc., et al., Appellants.
    Decided October 19, 1982

      APPEARANCES OF COUNSEL

      Guy Miller Struve and Jim G. Kilpatric for American Telephone and Telegraph Company, Inc., appellant.

      Harold S. Levy for New York Telephone Company, appellant.

      William F. Sondericker for respondent.
   opinion of the court

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (20 NYCRR 500.2 [g]), order of the Appellate Division modified, with costs to defendants, by granting defendants’ motion for summary judgment to the extent of dismissing the complaint insofar as it seeks damages for loss of profit, and as so modified, affirmed. Question certified answered in the negative.

Questions of fact exist as to whether defendants’ representatives intended their statements to be opinions or positive statements of present intention, and as to whether plaintiff’s claims are time barred.

The issue of whether a “special relationship” exists sufficient to make out a cause of action for negligent misrepresentation should also be left to the finder of fact (White v Guarente, 43 NY2d 356; International Prods. Co. v Erie R. R. Co., 244 NY 331; Coolite Corp. v American Cyan-amid Co., 52 AD2d 486; see, also, Restatement, Torts 2d, § 552).

As for damages, the rule in this State is that all elements of profit are excluded from a computation of damages in an action grounded in fraud (Reno v Bull, 226 NY 546).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified, with costs to defendants, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.


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    In the Matter of Syd P. Krantz, Appellant, v Conciliation and Appeals Board of the City of New York et al., Respondents.
    Decided October 19, 1982

      appearances of counsel

      Syd P. Krantz, appellant pro se.

      Cullen S. McVoy and Ellis S. Franke for Conciliation and Appeals Board of the City of New York, respondent.

      Paskus, Gordon & Hyman for Leonard H. Mandel, respondent.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and judgment of Supreme Court, New York County, reinstated for the reasons stated in dissenting memorandum of Justice David Ross at the Appellate Division (86 AD2d 801, 803).

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


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    In the Matter of Ferman Dye, Appellant, v New York City Transit Authority, Respondent.
    Decided October 19, 1982

      APPEARANCES OF COUNSEL

      David B. Lubash for appellant.

      Robert A. Rifkin and RichardK. Bernard for respondent.
   OPINION OF THE COURT

Memorandum.

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

The determination upholding as against a claim of unconstitutionality the provision in the collective bargaining agreement for arbitration of employee disciplinary grievances accords with the law of this State (Antinore v State of New York, 40 NY2d 921). With respect to the challenge to the arbitrator’s award on the merits, review under article 78 is not available (see CPLR 7511). Appellant’s claim based on the alleged failure of respondent to have reinstated him to his former position in accordance with the terms of the arbitration award is not within the scope of this proceeding as defined by the petition.

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

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


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    Kansas City Fire and Marine Insurance Company, Plaintiff, v Hartford Insurance Group et al., Respondents, and Jefferson Insurance Company of New York, Appellant.
    Decided October 19, 1982

      APPEARANCES OF COUNSEL

      Howard V. Burke for appellant.

      Frank G. Godson for Hartford Insurance Group, respondent.

      James E. Kehoe for Blue Bird Coach Lines, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from and the order brought up for review should be reversed and judgment granted declaring that Hartford and Jefferson are to contribute in amounts in accordance with their settlement agreement. Mutual excess policies covering the same risk cancel each other out (Federal Ins. Co. v Atlantic Nat. Ins. Co., 25 NY2d 71). Here, neither clause contains language specifically making one an excess insurer over all other excess insurers covering the same risk, and neither one contains language the plain meaning of which would be distorted by the application of the general rule (contrast Lumbermens Mut. Cas. Co. v Allstate Ins. Co., 51 NY2d 651, with Public Serv. Mut. Ins. Co. v Firemen’s Fund Amer. Ins. Cos., 55 NY2d 868). Accordingly, the insurers have presented no basis upon which to alter the terms of their settlement agreement.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order appealed from and order brought up for review reversed, with costs, and judgment granted in accordance with the memorandum herein.


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    Kenneth S. Brew, Respondent, v James Mason, Appellant.
    Decided October 19, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie (NY Const, art VI, § 3, subd b, par [7]).


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    City of White Plains, Appellant, v Alfred Del Bello, as County Executive of the County of Westchester, et al., Respondents.
    Submitted September 13, 1982
    decided October 19, 1982
   Motion to dismiss plaintiff’s appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from is one of modification and plaintiff is not aggrieved by the modification (CPLR 5601, subd [a], par [iii]). Application by plaintiff for leave to appeal denied.


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    Katherine Q. Dwyer, an Infant, by Her Guardian ad Litem, F. Richard Decatur, Jr., et al., Appellants, v Frances Ahearn et al., Respondents.
    Submitted September 20, 1982
    decided October 19, 1982
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Chief Judge Cooke taking no part.


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    Ford Motor Credit Company, Appellant, v Hickey Ford Sales, Inc., et al., Respondents. (And Two Proceedings.)
    Submitted September 13, 1982
    decided October 19, 1982
   Motion to withdraw appeal granted, with costs to respondents. Cross motion to dismiss appeal denied.


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    In the Matter of the Report of the Grand Jury of the County of Montgomery Impaneled on April 30, 1979. Howard M. Aison, as District Attorney of Montgomery County, Respondent; Two Public Officials Named in the Above-Entitled Report, Appellants.
    Decided October 19, 1982
   Appeal dismissed, by the Court of Appeals sua sponte, upon the ground that it does not lie (CPL 190.90, subd 5) and no substantial constitutional question is directly involved as otherwise required by Matter of Second Report of November, 1968 Grand Jury of County of Erie (26 NY2d 200).


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    In the Matter of Donald Storms, Also Known as Clive A. James, Jr., Appellant, v Supreme Court of the State of New York et al., Respondents.
    Submitted August 2, 1982
    decided October 19, 1982
   On the court’s own motion, appeal dismissed, without costs, upon the ground that the constitutional question tendered is not directly involved on this appeal. Motion for assignment of counsel, etc., dismissed as academic.


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    In the Matter of Scott Levy, Appellant. City University of New York et al., Respondents.
    Decided October 21, 1982

      APPEARANCES OF COUNSEL

      Neal Forman for appellant.

      Robert Abrams, Attorney-General (Andrea G. Iason of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (88 AD2d 915).

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


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    Richard Woska, Appellant, v James K. Murray, Respondent.
    Decided October 21, 1982
    APPEARANCES OF COUNSEL

      John M. Martyn for appellant.

      E. Richard Rimmels, Jr., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. The adequacy of a verdict is beyond the province of this court to review (Zipprich v Smith Trucking Co., 2 NY2d 177).

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


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    City of New York, Respondent, v Unsafe Buildings and Structures, Rose-Polly Properties, Inc., Appellant, et al., Respondent.
    Decided October 21, 1982

      APPEARANCES OF COUNSEL

      Hubert F. Sullivan for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel ('Trudi Mara Schleifer of counsel), for petitioner-respondent.
   OPINION OF THE COURT

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

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer. Taking no part: Judges Gabrielli and Fuchsberg.


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    Halldor Gudmundson et al., Appellants, v Edward H. Axelrod, Respondent, et al., Defendant.
    Decided October 21, 1982

      APPEARANCES OF COUNSEL

      Malachy J. Duffy for appellants.

      Kenneth R. Larywon for respondent.
   OPINION of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and defendant’s motion for summary judgment denied. Questions of fact exist as to when plaintiff’s treatment was “completed” and as to whether the August 29,1974 visit was a timely return visit within the scope of the continuous treatment doctrine enunciated in McDermott v Torre (56 NY2d 399).

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


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    Rita Valentine, Appellant, v City of New York, Respondent, et al., Defendant.
    Decided October 21, 1982

      APPEARANCES OF COUNSEL

      Martin S. Rothman for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (George Ian Brandon of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs. We agree that, as a matter of law, insufficient time had elapsed after the end of this heavy storm to hold the city liable for failure to clear the sidewalks of snow and ice.

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


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    In the Matter of A. Walter Sildar et al., Appellants, v Board of Trustees of the Village of Huntington Bay et al., Respondents.
    Decided October 21, 1982

      APPEARANCES OF COUNSEL

      Charles T. Matthews for appellants.

      Richard C. Cahn, Village Attorney, for Board of Trustees of Village of Huntington Bay, respondent.

      Edgar Hills for Lawrence Mercantini and another, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. On the record before us it cannot be said that the Board of Trustees of the Village of Huntington Bay, acting in its capacity as the village planning board, acted arbitrarily or capriciously, or abused its discretion under the restrictive covenant.

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


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    In the Matter of Darryl Williams, Also Known as William Cyprus, Appellant, v Edward R. Hammock, as Chairman of the New York State Board of Parole, Respondent.
    Decided October 21, 1982

      APPEARANCES OF COUNSEL

      Robert J. Raubach and Matthew Muraskin for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court for entry of judgment granting the petition, vacating the parole violation warrant, and restoring petitioner to parole on the conditions heretofore in effect,

No timely notice, with accompanying necessary papers, was given to petitioner’s counsel prior to the final revocation hearing held on March 23, 1981, as mandated by section 259-i (subd 3, par [f], els [i], [in]) of the Executive Law and the regulations of the board (9 NYCRR 8005.18 [c]), and the time to hold such hearing expired immediately thereafter. Accordingly, the warrant should have been dismissed (People ex rel. Gonzales v Dalsheim, 52 NY2d 9). Our holding in People ex rel. Martinez v New York State Bd. of Parole (56 NY2d 588) is distinguishable. In that case the requests by the parolee for continuances were responsible in part for the board’s inability to conduct a timely revocation hearing.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, without costs, and matter remitted to Supreme Court, Nassau County, for entry of judgment in accordance with the memorandum herein.


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    In the Matter of Sarah Korein, Appellant, v Conciliation and Appeals Board of the City of New York et al., Respondents, and Ellis P. Eisenstein et al., Intervenors-Respondents.
    Decided October 21, 1982

      APPEARANCES OF COUNSEL

      Edward H. Heller for appellant.

      Ellis Franke and William E. Rosen for respondents.

      Rachel Potasznik for intervenors-respondents.
   OPINION OF THE COURT

Memorandum.

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

Whether the services provided by the landlord after March 15, 1976 conformed to the prior mandate of the Conciliation and Appeals Board was a question of fact, the board’s resolution of which, not being erroneous as a matter of law, is not subject to challenge in the courts (Fresh Meadows Assoc. v New York City Conciliation & Appeals Bd., 88 Misc 2d 1003, 1004, affd 55 AD2d 559, affd 42 NY2d 925). Nor is there any basis for judicial disturbance of the penalty imposed (Matter of Pell v Board of Educ., 34 NY2d 222).

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

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


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    John S. Vaughn, Appellant, v David Ross, Respondent.
    Decided October 21, 1982

      APPEARANCES OF COUNSEL

      Raymond E. Kerno and Richard Hartman for appellant.

      William A. Wingate for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (89 AD2d 602).

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


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    In the Matter of Buck Barnes, Respondent, v Bruce Ratner, as Commissioner of the Department of Consumer Affairs of the City of New York, et al., Appellants.
    Decided October 21, 1982

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Miriam Skolnik of counsel), for appellants.

      Ronald Podolsky for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, the revocation of petitioner’s license reinstated, and the petition dismissed.

At a Department of Consumer Affairs hearing to revoke petitioner’s general vendor license for four or more violations of the General Vendor Law in a two-year period (Administrative Code of City of New York, § B32-505.0, subd d), petitioner produced an Environmental Control Board (ECB) memorandum which announced a policy of dismissing all citations issued to vendors before December 1, 1980, for sales in specified zoning districts which vendors had not previously been informed were off limits. All of the 27 summonses which were being used as a predicate for the revocation had been issued to petitioner prior to the specified date, and petitioner testified that they all involved sales in the designated zones. The hearing officer informed petitioner that nothing in his records showed the zones in which the tickets had been issued and that determination of the validity of the individual summonses was a matter within the exclusive province of the ECB. The hearing officer suggested that petitioner go to the ECB to have the summonses reviewed, promising to reconsider the revocation of his license if petitioner were able to have the summonses dismissed. Petitioner agreed to follow this course. An order revoking petitioner’s license was later sent to him.

Petitioner then commenced this article 78 proceeding to annul respondent’s determination revoking his license. The Appellate Division unanimously granted the petition and directed respondent to reinstate petitioner’s license. The court ruled that the hearing officer had acted arbitrarily in the procedural sense when he revoked petitioner’s license without requiring rebuttal of petitioner’s contention that the summonses should be dismissed and without adjourning the hearing to determine the zones in which the summonses had in fact been issued. This ruling was erroneous.

At the hearing, petitioner never made a request for, nor was there a refusal of, an adjournment. As well, he advanced no contention that respondent commissioner was obligated to introduce evidence of the validity of the 27 summonses. He can point to no adverse procedural ruling by the hearing officer by which he was aggrieved. In fact, he acquiesced in the hearing officer’s position that the ECB had sole jurisdiction to dismiss the individual summonses, and he agreed to go to the ECB to have his 27 tickets reviewed and thereafter to come back for a rehearing. Consequently, it cannot accurately be said that the manner of the revocation was arbitrary simply because the hearing officer declined to determine whether the summonses were issued for sales in the specified zones.

Inasmuch as the Appellate Division erroneously annulled the commissioner’s determination on procedural grounds, it becomes necessary to determine whether there was substantial evidence to support the substantive decision (CPLR 7803, subd 4). In this case an ECB printout was received showing the issuance of the 27 summonses and petitioner’s default on them. Petitioner did not contest either the issuance of the tickets or his own default. As a result, there was adequate evidence in the record to support the conclusion that petitioner had four or more violations of the General Vendor Law in a two-year period so as to warrant revocation of his license.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Meyer dissents and votes to affirm for reasons stated in the memorandum at the Appellate Division.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment reversed, with costs, revocation of petitioner’s license reinstated and petition dismissed in a memorandum.


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    In the Matter of Claire Greenwald et al., Petitioners, and Toby Schiff et al., Appellants, v Board of Education of the East Ramapo Central School District et al., Respondents. Sheri Alpert et al., Intervenors-Respondents.
    Argued October 12, 1982
    decided October 21, 1982

      APPEARANCES OF COUNSEL

      Stephen A. Perelson and Mark C. Rushfield for appellants.

      Ernest Allen Cohen, David Greenberg, Seth Rosner, Allen B. Breslow, Carl Wanderman and Kathryn Rooney for respondents.

      Janet Axelrod, Robert D. Clearfield and Deborah A. Watarz for Sheri Alpert and others, intervenors-respondents.
   OPINION OF THE COURT

Judgments appealed from and order of the Appellate Division brought up for review affirmed, with costs. Appellants are not entitled to the relief they seek on this appeal, inasmuch as that relief was not requested and they expressly elected not to appeal “from that part of the order and judgment [Beisheim, Jr., J., dated Sept. 14, 1977] reinstating them to teaching positions as of June 30,1976”.

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


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    Nelson F. Veras, Appellant, v Truth Verification Corporation et al., Defendants, and City of New York, Respondent.
    Decided October 21, 1982

      APPEARANCES OF COUNSEL

      Wilson G. Graves for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Charles E. Dropkin of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the opinion by Justice Arnold L. Fein at the Appellate Division (87 AD2d 381).

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


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    In the Matter of Debby Bock, Appellant, v Arthur Cooperman, as Chairman of the Workers’ Compensation Board of the State of New York, et al., Respondents.
    Submitted September 20, 1982
    decided October 21, 1982
   Motion to dismiss petitioner’s appeal insofar as it is taken from orders of the Appellate Division dated January 5, 1982 and July 22, 1982 granted and that portion of the appeal dismissed, without costs, upon the ground that said orders do not finally determine the proceeding within the meaning of the Constitution.

Cross motion by petitioner to waive strict compliance with certain requirements concerning the papers on appeal granted only to the extent that the appeal from the Appellate Division order of reversal and dismissal of the petition may be prosecuted upon the original record and upon 10 copies each of the additional papers and appellant’s brief; motion otherwise denied.


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    In the Matter of Robert R. Kaufman, Appellant.
    Submitted September 20, 1982
    decided October 21, 1982
   On the court’s own motion, appeals from the Appellate Division orders dated June 24, 1982 and March 16, 1982 . dismissed, without costs, upon the ground that the orders appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion to consolidate appeals, etc., dismissed as academic.


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    The People of the State of New York, Appellant, v Charles Meriwether, Jr., Also Known as Rye Due, Respondent.
    Submitted October 4, 1982
    decided October 21, 1982
   Motion to vacate the Court of Appeals order of dismissal dated September 14, 1982 denied. Motion for an extension of time dismissed upon the ground that the Court of Appeals does not have power to grant the relief requested on application of the People (CPL 460.30, subd 1). [See 57 NY2d 777.]


text:
    Betty O. Muka, Appellant, v Neal R. Stamp, Respondent. Betty O. Muka, Appellant, v Cornell University Law School, Respondent. Betty O. Muka, Appellant, v Gary Thoron, Respondent. Betty O. Muka, Appellant, v John C. Barney, Respondent.
    Decided October 21, 1982
   Appeals transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Fourth Department. Direct appeals do not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    In the Matter of Michael Corso et al., Appellants, v Albany County Board of Elections et al., Respondents.
    Argued October 25, 1982
    decided October 25, 1982

      APPEARANCES OF COUNSEL

      Lewis B. Oliver, Jr., and Mark S. Mishler for appellants.

      Robert G. Lyman, County Attorney (William J. Conboy, II, of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs. On this record and considering the late date of the application made by the petitioners, we cannot say that the Appellate Division erred as a matter of law in denying relief.

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


author: Jasen and Jones, JJ.

text:
    In the Matter of Vander L. Beatty, Respondent, v Major Owens, Appellant, et al., Respondents.
    Argued October 25, 1982
    decided October 25, 1982

      APPEARANCES OF COUNSEL

      Victor A. Kovner for appellant.

      Harry R. Poliak for respondent.
   OPINION OF THE COURT

Memorandum.

Never before have we imposed the sanction of depriving a primary candidate of an election victory absent a showing of that candidate’s responsibility for the fraud or misconduct, nor does the record in this case warrant the imposition of such a sanction. Petitioner failed to present evidence sufficient to establish irregularities or misconduct under either the rule of Matter of De Martini v Power (27 NY2d 149) and Matter of Ippolito v Power (22 NY2d 594) or Matter of Lowenstein v Larkin (40 AD2d 604, affd 31 NY2d 654). Indeed, the Appellate Division acknowledged that the number of irregularities were not sufficient to change the result of the election or justify ordering a new election.

Jasen and Jones, JJ.

(dissenting memorandum). The order of the Appellate Division should be affirmed. We believe we are bound by the affirmed finding of fact at the Appellate Division that' the primary election was so permeated by fraud and irregularities “as to render it impossible to determine who was rightfully nominated.” Where there was such a breakdown in the election process as the courts below found occurred here, a new primary election should be held to determine the rightful Democratic candidate for the important office of Member of the House of Representatives (see Matter of Lowenstein v Larkin, 31 NY2d 654).

Chief Judge Cooke and Judges Gabrielli, Wachtler, Fuchsberg and Meyer concur; Judges Jasen and Jones dissent and vote to affirm in a separate memorandum.

Motion for leave to appeal granted. Order reversed, without costs, and petition dismissed in a memorandum.


text:
    Karen C. Porcello, as Administratrix of the Estate of Daniel J. Cheney, Deceased, Appellant, v Harold L. Brackett, as Administrator of the Estate of Harold L. Brackett, III, Deceased, Respondent.
    Argued October 6, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      David C. Hatch, Thomas J. Kellish and John W. Brandt for appellant.

      Henry S. Fraser for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (85 AD2d 917), noting our approval of the standard set forth therein.

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


text:
    In the Matter of Metropolitan Life Insurance Company, Appellant, v Tax Commission of the City of New York et al., Respondents.
    Argued October 7, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Sol Pottish for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stanley Buchsbaum, Edith I. Spivack and Gary Schuller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On the previous appeal to this court, we remitted the case to the Appellate Division for a factual determination of the market value of petitioner’s buildings. (Matter of Metropolitan Life Ins. Co. v Tax Comm. of City of N. Y., 53 NY2d 1050.) At that time, we noted that the question of market value and the subsidiary question of whether capitalization of net income should be determined on a single or multiple tenant basis were questions of fact. (Matter of Grant v Srogi, 52 NY2d 496.)

The Appellate Division’s decision now before this court reaches a different conclusion from that reached by Supreme Court. We are thus presented with the question of which factual determination more nearly comports with the weight of the credible evidence. On the record before this court, we conclude that the weight of the evidence supports the determination of the Appellate Division.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Paerdegat Boat and Racquet Club, Inc., Petitioner, and Electro-Thermal Systems, Inc., Appellant, v Joseph Zarrelli, Respondent.
    Argued October 6, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Pauline Levin Gold for appellant.

      Paul Hollender for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the mechanic’s lien discharged for reasons stated in the concurring in part and dissenting in part opinion by former Justice James D. Hopkins at the Appellate Division (83 AD2d 444, 449-452).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler. Judges Fuchsberg and Meyer dissent and vote to affirm for reasons stated in the opinion by Justice Moses M. Weinstein at the Appellate Division (83 AD2d 444; see, also, Department of Community Affairs & Economic Dev. v Davis & Sons, 412 A2d 939 [Del]).


text:
    The People of the State of New York, Respondent, v Robert Johnson, Appellant.
    Argued October 12, 1982
    decided November 9, 1982
    APPEARANCES OF COUNSEL

      Andrew C. Fine and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney {Philip Lerner, Michael Yoeli and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It was error to have admitted, over timely and specific objection, the testimony of the victim’s companion explicitly bolstering, and the testimony of two police officers implicitly bolstering, the victim’s identification of defendant (People v Trowbridge, 305 NY 471). The People, acknowledging the error, argue that defendant’s conviction should be affirmed inasmuch as the error was harmless. We agree.

Harmless error analysis proceeds in two stages. First, “unless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error” (People v Crimmins, 36 NY2d 230, 241). Second, as to nonconstitutional error — and the admission of bolstering testimony comes within this classification — for the error to be harmless the appellate court must conclude “that there is [no] significant probability * * * in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred” (People v Crimmins, 36 NY2d 230, 242, supra; accord People v Mobley, 56 NY2d 584).

In the present case we conclude that the requirements at both stages have been met. We recognize that the only direct evidence connecting defendant to the commission of the crimes charged was the identification testimony of the victim. Although such a single strand might be insufficient in some instances, in this case the victim’s identification was unusually credit-worthy. She first saw her attacker in the street under what she described as “bright” lighting conditions. Then, after she had been dragged into the vestibule of the nearby building where she was sexually assaulted, the light in the vestibule, provided by a fluorescent bulb, was “very good”. The assailant was facing her and she looked into his face. She had opportunities to observe him over a period of 15 or 20 minutes, while he and his two companions were sexually brutalizing her.

Twenty minutes later she was in the radio patrol car when the police apprehended defendant a block away from the scene of the crimes. Her identification of him was not impulsive. When the police officer first asked her to identify him she did not do so. It was only after he turned around and she got a good look at his face that she volunteered the unhesitating and unequivocal identification. There were some discrepancies in her description of the clothing of her attacker and the clothing worn by defendant when he was arrested, but they were not remarkable; if anything, they perhaps served to negative any inference that the victim’s description was designedly fabricated on a post hoc ergo propter hoc basis. In sum, the victim’s testimony must be characterized as solidly credible.

Such unequivocal identification, coupled with the fact that no evidence was introduced either to controvert or to explain defendant’s presence in the area in the early morning hours warrants our conclusion that the evidence of his guilt in this record was overwhelming.

Turning then to the second inquiry — is there a significant probability that the jury would have acquitted defendant had it not been for the explicit and implicit bolstering testimony — we answer in the negative. Although the bolstering testimony must be so classified, it confirmed only the bald fact of the identification. It went into no particulars of such identification or the means by which the victim reached her conclusion. Beyond the fact that she did identify him, there was nothing to shore up the reliability or probative worth of her identification. Unquestionably defendant had been identified; the erroneously admitted bolstering testimony went no further than to corroborate that uncontroverted fact.

For the reasons stated we conclude that, although the admission of the bolstering testimony was error, the error was harmless when measured against our standard for nonconstitutional error.

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

Order affirmed in a memorandum.


text:
    Peter R. Capalongo et al., Appellants, v Noel Desch et al., Respondents, et al., Defendants.
    Argued October 5, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Robert J. Hines for appellants.

      Robert J. Clune for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court and the order of the Appellate Division brought up for review should be affirmed, with costs.

It appears that the parties by stipulation and judgment of the Supreme Court entered thereon have discontinued, without prejudice, all aspects of the present action save only with respect to the Appellate Division’s grant of summary judgment to defendants-appellants Desch and May dismissing the first and second causes of action in the amended complaint. That dismissal is described in the opinion at the Appellate Division as addressed to the causes of action “seeking judgment rescinding the conveyance to Desch and directing a conveyance to plaintiffs” (81 AD2d 689, 690-691). The grant of summary judgment, so characterized, should be affirmed for the reasons stated in the memorandum opinion at the Appellate Division.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


author: Meyer, J.

text:
    Everett E. Lewis, Respondent, v Vladeck, Elias, Vladeck, Zimny & Engelhard, P. C., et al., Appellants, et al., Defendant.
    Argued October 5, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Robert Markewich and Gary Brown for appellants.

      Lawrence M. Kaye and Harry I. Rand for respondent.
   OPINION OF THE COURT

Memorandum.

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

When the members of the law partnership decided to continue their practice in the professional corporation form, they agreed, in a shareholders’ agreement dated June 16, 1975, that in the event of termination of employment the shares of the withdrawing shareholder would be transferred to the corporation and, in paragraph 4(b) thereof, that the parties would “cause the then accountant for the Corporation to value the shares involved and his evaluation shall be binding upon all parties as to the price to be paid therefor. The final Shareholders Agreement shall contain explicit directions for the method of the evaluation of the stock”. No final shareholders’ agreement was thereafter executed. When on September 23, 1977 plaintiff tendered his resignation he agreed to sell his “shares of stock to the corporation in the manner provided in the Shareholders Agreement dated June 16, 1975”.

The two sentences of paragraph 4(b) must be read together. As written they constitute no more than an agreement that the corporation’s accountant would value the shares in accordance with the explicit directions to be agreed on by the parties in a subsequent agreement; in substance this is no more than an agreement to agree. The parties did not agree, as appellants would have it, that the shares should be valued by the accountant in accordance with accepted accounting principles or as he otherwise professionally saw fit in the event of the inability or, as proved to be the case, the failure of the parties to reach agreement with respect to the explicit directions for the method of valuation. On September 23, 1977 when he left plaintiff merely agreed to carry forward the terms of the 1977 agreement including this inoperative provision.

In the absence of an enforceable agreement to the contrary it was not error, therefore, for the court to direct that plaintiff’s 32 shares, constituting 16% of the shares outstanding, be valued on the basis of a 16% interest in the net assets of the corporation including its accounts receivable, irrespective of what accounting method had been employed by the corporation in the maintenance of its own operating accounts. Moreover, inasmuch as the immediate progenitor of this professional corporation was a law partnership it was not unreasonable for the lower courts here to have concluded that, in the absence of statutory provision or agreement of the parties, the pattern of valuation of participating interests applicable to the partnership should be carried forward when the enterprise took on a corporate form (cf. Jackson v Hunt, Hill & Betts, 7 NY2d 180; Matter of Lester (Berman), 61 AD2d 935).

Meyer, J.

(dissenting). Were paragraph 4(b) all that this case involved I would agree with the majority. Here, however, the agreement contained an additional paragraph reading “5. It is understood that this Agreement shall continue in effect only until the final Shareholders Agreement shall be formulated and executed by the parties.”

The last sentence of paragraph 4(b) establishes beyond peradventure that the parties were aware that they had not provided explicitly for the method of evaluation. The preceding sentence of paragraph 4(b) makes clear that pending execution of the final agreement the evaluation was to be made by the accountant and his evaluation was to be binding, and paragraph 5 establishes that the interim method of evaluation by the accountant would continue only until the more explicit agreement was prepared. Unfortunately for plaintiff, no final agreement was ever prepared. That, however, does not militate against holding the parties to their interim agreement for evaluation by the accountant.

The only issue open to plaintiff, therefore, should be whether the method used by the accountant reasonably complied with the usual evaluation methods for, to give an absurd example, no one would argue that if he evaluated one shareholder’s stock at $100,000 a share because he had red hair and another’s at $1 because he did not, the parties would be bound by that. As the majority appears to agree, Special Term erred in holding the cash basis method used by the accountant “incorrect” solely on the ground that the rule declared in Jackson v Hunt, Hill & Betts (7 NY2d 180) and Matter of Lester (Berman) (61 AD2d 935) applied to this professional corporation. Plaintiff should be permitted to present evidence, if he can, establishing the impropriety of the evaluation method used by the accountant in valuing plaintiff’s shares, but until he has had that opportunity neither he nor defendants are entitled to summary judgment.

Accordingly, I would modify the order of the Appellate Division to deny plaintiff’s motion for summary judgment and, as so modified, would affirm.

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

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.

       We fail to comprehend how the terminal provision of paragraph 5, relied on in the dissent, can be said to breathe vitality into the inchoate provisions of paragraph 4(b).


text:
    William C. Roddy et al., Appellants, v Paul A. Schmidt et al., Respondents.
    Argued October 6, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Roger L. Paul and Michael Raphael for appellants.

      James A. Lombardo for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs-appellants seek to recover certain real and personal property, located in the State of Florida, which they transferred to defendants in payment of compensation for services rendered. Defendants were personally served in Florida, the State of their residence, and the Appellate Division granted their cross motion to dismiss the complaint for lack of personal jurisdiction (made in response to a motion by plaintiffs to compel an examination before trial).

In support of their assertion that the New York court has jurisdiction over defendants, plaintiffs advance two arguments. First, they contend that defendants were transacting business within the State of New York within the contemplation of CPLR 302 (subd [a], par 1). The record does not support this contention. The compensation paid defendants was for services which they had rendered to plaintiffs in connection with the design and implementation of a tax-saving plan pursuant to which plaintiffs would transfer assets in trust to a tax-exempt corporation organized under the laws of Georgia. After the plan was agreed on, real property located in the State of New York was conveyed to the charitable corporation as the trust res. Plaintiffs made no allegation that any of the negotiations with defendants leading to the establishment of the tax-saving program, to the conveyance of the real property, or to the agreement for compensation took place in the State of New York, and defendants assert that all such negotiations (and later the payment of the compensation) occurred in the State of Florida. None of the defendants was present in New York when the property was transferred to the charitable corporation. Plaintiffs do allege that defendants contacted New York banks for appraisals of the property, and it is true that one of the defendants came to New York to view the property with a representative of the charitable corporation, but no negotiations then took place. These activities, however, are not sufficient to provide a basis for jurisdiction under CPLR 302 (subd [a], par 1).

Second, defendants assert that jurisdiction may be sustained under the provisions of CPLR 302 (subd [a], pars 2, 3) — the commission of a tortious act within the State of New York or without the State causing injury to a person or property within the State. The tortious conduct is alleged to have consisted of fraud and deceit in obtaining the compensation, more particularly collusion between one defendant and the tax-exempt corporation and fraudulent misrepresentation by defendants as to their legal authority to carry on business in the State of New York. Whatever may be said of the legal sufficiency of these allegations, there is no showing that any of the misconduct charged took place in New York or that any injury was caused to person or property in New York.

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

Order affirmed, with costs, in a memorandum.

       The record contains no proof on behalf of plaintiff as to activities of defendants pertinent to the jurisdictional issues other than the conclusory allegations of their verified complaint. Most of the description of defendants’ activities has, therefore, been drawn from their own submissions.


text:
    New York Institute for the Education of the Blind, Appellant, v United Federation of Teachers’ Committee for the New York Institute for the Education of the Blind et al., Respondents.
    Argued October 7, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Herman E. Cooper and Jonathan L. Sulds for appellant.

      Elizabeth A. Truly and James R. Sandner for United Federation of Teachers’ Committee for the New York Institute for the Education of the Blind and another, respondents.

      Norbert M. Phillipps and James M. O’Neill for New York State Labor Relations Board, respondent.
   OPINION OF THE COURT

Order affirmed, with costs. In declining to entertain a declaratory judgment action in the circumstances of this case the Appellate Division did not abuse its discretion as a matter of law (CPLR 3001).

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


text:
    Olive Jones, Respondent, v City University of New York et al., Appellants.
    Argued October 8, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff of counsel), for appellants.

      Walter C. Whelan and Arthur Lichtman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case returned to the Court of Claims for consideration of respondent’s motion for permission to file a late claim.

It was error on the part of the courts below to have concluded that subdivision 2 of section 6224 of the Education Law (as it existed prior to the 1982 amendment, see below) operated to extend the 90-day period of limitation for filing claims (or notices of intention to file claims) prescribed in subdivision 3 of section 10 of the Court of Claims Act. The latter subdivision provides: “A claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the state while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after the accrual of such claim.”

Subdivision 2 of section 6224 (prior to the 1982 amendment) provided in pertinent part: “2. No notice of intention to file a claim or claim shall be served pursuant to subdivision four of this section, nor shall any other action or special proceeding, for any cause whatever, be prosecuted or maintained against the city university unless it shall appear by and as an allegation in the notice of intention to file a claim, claim, complaint or necessary moving papers that at least thirty days have elapsed since a demand setting forth the underlying basis for such matter was presented to the city university for adjustment, and that the officers or bodies having the power to adjust or pay such claim have neglected or refused to make an adjustment or payment thereof for thirty days, after such presentment.” Subdivision 4 of section 6224 (again prior to the 1982 amendment), the statutory provision which transferred to the Court of Claims exclusive jurisdiction over claims against senior colleges of the City University of New York, provided in pertinent part: “4. Exclusive jurisdiction is hereby conferred upon the court of claims to hear, audit and determine the claims of any person against the city university of New York (a) in connection with causes of action sounding in tort alleged to have been committed by a senior college of such university or any officer, agent, servant or employee of a senior college of such university in the course of his employment on behalf of such university * * * in the same manner and to the extent provided by and subject to the provisions of the court of claims act with respect to claims against the state, and to make awards and render judgments therefor.” The consequence of the enactment of this subdivision 4 (L 1979, ch 305, § 1) was that a tort claimant against a senior college of the City University was confronted with two strictures of time. First, subdivision 2 of section 6224 mandated a 30-day waiting period after presentation of a preliminary administrative demand to the City University, a stricture at the beginning of the time spectrum. Second, subdivision 3 of section 10 of the Court of Claims Act mandated that the claim, or notice thereof, be filed in the Court of Claims within 90 days after the accrual of the claim, a stricture at the end of the time spectrum. The lower courts held that the 30-day period prescribed in subdivision 2 of section 6224, operated to extend the 90-day period of subdivision 3 of section 10. This was error.

The two sections are to be read together, and each is to be given effect according to its express terms. In substance, the 30-day waiting period (presumably to afford an opportunity for prelitigation settlement) is carved out of the 90-day period within which the claim or notice thereof must be filed.

If there were any doubt that this was the proper interpretation to be placed on these statutory provisions in effect when this case was in the Court of Claims and at the Appellate Division, all such doubt was dispelled by the enactment of chapter 711 of the Laws of 1982, effective July 22,1982. In the provision of subdivision 4 that claims against senior colleges of the City University should be determined “in the same manner and to the extent provided by and subject to the provisions of the court of claims act with respect to claims against the state”, there was inserted after the word “act” the phrase “including time limitations”. Moreover, inasmuch as the 1982 amendment, in present respects at least, was made applicable to pending actions, whatever may have been the prior law, it is now dispositive of the appeal before us.

In this case, respondent’s claim accrued on November 15, 1979, the day she suffered the injuries which are the basis of her claim. Her claim, however, was not filed with the Court of Claims until February 29, 1980, after the expiration of the applicable 90-day period. It was error to have concluded that such filing was timely. As the State acknowledges, respondent is entitled, however, to have the matter returned to the Court of Claims for consideration of her motion for permission to file a late claim.

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

Order reversed, with costs, and case remitted to the Court of Claims for further proceedings in accordance with the memorandum herein. Question certified not answered as unnecessary.

      . The statement in the opinion in the Court of Claims that this provision was not to be found in subdivision 4 of section 6224 was incorrect, and its conclusion, reasoned from the omission of such a provision as was included in section 361-b of the Public Authorities Law, was correspondingly flawed.

      . The 1982 amendment also removed the prior requirement that an administrative demand for relief be presented to the City University; the requirement of presentation of administrative demand was retained as to junior colleges only.


text:
    In the Matter of the Claim of Herman Davis, Claimant, v New York City Board of Education, Respondent. Workers’ Compensation Board, Appellant.
    Argued October 5, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Morris N. Lissauer, Peter H. Schiff and Henriette Frieder of counsel), for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen Burstein and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (85 AD2d 815).

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


text:
    In the Matter of Crater Club, Inc., Appellant, v Adirondack Park Agency, Respondent, and Estate of Rosann S. Berry, Intervenor-Respondent.
    Argued October 6, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      G. Gordon Davis for appellant.

      Robert Abrams, Attorney-General (Francis J. Keehan, Peter H. Schiff and James A. Sevinsky of counsel), for respondent.

      Stephen Berry for intervenor-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (86 AD2d 714).

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


text:
    Martin B. Schaffer, Appellant, v Herbert B. Evans, as Chief Administrator of the Unified Court System of the State of New York, et al., Respondents.
    Argued October 7, 1982
    decided November 9, 1982

      APPEARANCES OF COUNSEL

      Martin B. Schaffer, appellant pro se.

      Paul A. Feigenbaum, Michael Colodner and Kenneth Falk, for Herbert B. Evans, as Chief Administrator of the Unified Court System of the State of New York, respondent.

      Robert Abrams, Attorney-General {William J. Kogan and Peter H. Schiff of counsel), for Edward V. Regan, as Comptroller of the State of New York, respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that plaintiff’s causes of action against the State officials are primarily claims against the State for money damages and as such could only be entertained in the Court of Claims (Court of Claims Act, § 9, subd 4). Nor can it be said that the Appellate Division abused its discretion in not converting this complaint requesting monetary compensation for past services into an article 78 proceeding.

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

Order affirmed, with costs, in a memorandum.