text:
    Associated Builders and Contractors, Inc., et al., Appellants, v City of Rochester, Respondent, and Rochester Building Trades Council, by Christopher J. Farrell, as President and on Behalf of All Building Trades Employees of Member Unions of the Rochester Building Trades Council, Intervenor-Respondent.
    Argued February 6, 1986;
    decided March 27, 1986

      APPEARANCES OF COUNSEL

      Paul J. Yesawich, III, and James M. Quinn for appellants.

      Louis N. Kash, Corporation Counsel (Gary J. O’Donnell of counsel), for respondent.

      Donald D. Oliver and Bernard T. King for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the cross motion of defendant City of Rochester denied, plaintiffs’ motion for summary judgment granted and the case remitted to Supreme Court, Monroe County, for the entry of judgment declaring Ordinance 82-450 invalid and enjoining its enforcement.

General Municipal Law § 103 and similar legislative enactments requiring competitive bidding "evince a strong public policy of fostering honest competition in order to obtain the best work or supplies at the lowest possible price” (Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 192-193; see, General Municipal Law § 100-a). So strong is that policy that a seller who obtains a contract in violation of it may be barred from any recovery on the contract or, if that be too draconian a measure, required to repay the difference between his contract price and the low bid (Gerzof v Sweeney, 22 NY2d 297; see, Matter of New York State Assn. of Plumbing-Heating-Cooling Contrs. v Egan, 65 NY2d 793).

A municipal ordinance, such as Ordinance 82-450, which establishes a precondition to the award of a contract to the lowest responsible bidder, is inconsistent with General Municipal Law § 103 and, therefore, invalid, unless its establishment as a precondition is expressly authorized by "an act of the legislature or by a local law adopted prior to September first, nineteen hundred fifty-three” (General Municipal Law § 103 [1]). Such is not the case with respect to apprentice training. Ordinance 82-450 was first adopted on September 28, 1982, and although Labor Law article 23 states the "public policy of the state of New York to develop sound apprenticeship training standards and to encourage industry and labor to institute training programs” (Labor Law § 810), the article is applicable only after the contractor or craft "has voluntarily elected to conform with its provisions” (§ 817). And although Labor Law § 220, the prevailing rate of wages statute, in subdivision (3), recognizes the right to pay an apprentice less than the prevailing rate, provided the apprentice receives "supplements in accordance with the prevailing practices” and the apprentice "is individually registered in an apprenticeship program which is duly registered with the industrial commissioner”, we have held that the purpose of that section, and particularly of the supplements, is to equalize minimum labor costs between union contractors and nonunion employers who held an unfair advantage through lower labor costs (Matter of Action Elec. Contrs. Co. v Goldin, 64 NY2d 213, 222), that that "purpose is fulfilled when a contractor pays in cash, totally or partially, the cost of prevailing supplemental benefits to his employees”, and that the section was not concerned "to protect workers from their possible failure to put their additional cash towards a benefits plan” (id.). That this is the correct construction of the statute with respect to apprentices is made indelibly clear by subdivision (3-e) of section 220, which requires that "[a]ny employee listed on a payroll at an apprentice wage rate, who is not registered as above, shall be paid the wage rate determined by the New York State Department of Labor for the classification of work he actually performed.”

Reading the three statutory provisions together, we conclude that the predominate purpose of the State Legislature was the protection of the public fisc by requiring competitive bidding (General Municipal Law § 103), that apprentice training, while a desirable end, was not intended by the State Legislature to affect the qualification of an otherwise responsible low bidder, and that, therefore, Ordinance 82-450 is invalid because in conflict with General Municipal Law § 103. Matter of Skyway Roofing v County of Rensselaer (79 AD2d 1078, lv denied 53 NY2d 606) does not require a different conclusion for, as was pointed out by the dissenting justice below, the holding of the Appellate Division in that case was that because apprentice training was already required by statute, the county ordinance was superfluous. While we now disagree with the suggestion that such training is required by statute, our denial of leave in that case, even if the Appellate Division’s decision is read more broadly, is without precedential effect (Matter of Dobbs Ferry Union Free School Dist. [Dobbs Ferry United Teachers], 51 NY2d 861).

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

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    The Flintkote Company, Respondent, v American Mutual Liability Insurance Company et al., Appellants, et al., Defendants. (Action No. 1.) American Mutual Liability Insurance Company, Appellant, v The Flintkote Company, Respondent, and Commercial Union Insurance Company et al., Appellants, et al., Defendants. (Action No. 2.)
    Decided March 27, 1986

      APPEARANCES OF COUNSEL

      Stuart I. Parker for American Mutual Liability Insurance Company, appellant.

      Lawrence T. DAloise, Jr., for Midland Insurance Company, appellant.

      Marian C. Rice for Commercial Union Insurance Company, appellant.

      Edwin L. Smith for Admiral Insurance Company, appellant.

      Jean-Pierre van Lent for Fireman’s Fund Insurance Company, appellant.

      Elizabeth Comacchio for Highlands Insurance Company, appellant.

      John M. Nonna for North Star Reinsurance Company and another, appellants.

      Michael E. Twomey for Liberty Mutual Insurance Company, appellant.

      Franklin Meyer for Home Insurance Company, appellant.

      Joseph T. McLaughlin for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for reasons stated in the opinion by Justice Leon D. Lazer at the Appellate Division (103 AD2d 501). Question certified in action No. 2 answered in the affirmative.

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


text:
    The People of the State of New York, Respondent, v Charles Branigan, Appellant.
    Argued February 4, 1986;
    decided March 27, 1986

      APPEARANCES OF COUNSEL

      Jeffrey Stein and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (John H. Larsen, Barbara D. Underwood and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On September 17, 1981, Officers David Enders and Jules Alper stopped the car defendant was driving, because the car had a cracked windshield, void stickers and no front license plate. Enders approached defendant and asked for his license, the car registration and insurance card. Defendant stated that the car was not his, and that he had no license. Defendant then produced a laminated plastic card with his picture on it, searched through papers scattered on the front seat in an apparent effort to locate a document, and — behaving strangely, in the officer’s view — mumbled to his passenger, codefendant James McBride. After 30 seconds to a minute, Enders ordered the defendant out of the car for "safety reasons”. McBride remained in the front passenger seat while Alper stood outside the passenger door. When Enders asked defendant where the papers for the vehicle were, he answered "in there,” pointing toward the front seat of the car. The officer entered the vehicle looking for the documents. The front seat and floor were strewn with papers. He looked through some papers, and then saw the butt of a .380 caliber automatic pistol beneath a small rug under the driver’s seat. Defendant and McBride were placed under arrest and searched. Defendant had 20 rounds of .380 caliber ammunition on his person, and McBride had 15 rounds of .9 mm ammunition. A further search of the car by Alper uncovered a .9 mm

pistol. Criminal Term denied defendant’s suppression motion, after which defendant pleaded guilty to one count of criminal possession of a weapon in the third degree. The Appellate Division affirmed his conviction, without opinion.

By law, defendant was required to carry a registration certificate while operating the vehicle. Failure to produce the certificate is presumptive evidence of operating an unregistered vehicle, which is punishable by a fine or imprisonment (see, Vehicle and Traffic Law § 401 [1], [4], [18]). Here, defendant had no license and no standard identification; he could produce no registration certificate or proof of insurance although given an opportunity to do so. He immediately disavowed the ownership of the car. The vehicle itself had void stickers, a cracked windshield and no front license plate. The officer observed that defendant behaved strangely while in the vehicle, and ordered him out because he feared for his safety in permitting defendant to remain in the vehicle. When defendant was outside the car, Officer Enders asked where the registration certificate was, and defendant responded "in there,” pointing toward the front seat of the vehicle. For want of any standard identification, defendant could not simply be issued a summons. For reasons of safety, Officer Enders could not permit defendant to return to the vehicle to look further for the certificate; defendant’s own search of the area had in any event already proved futile. Moreover, defendant indicated that the certificate was in the vehicle, and its general location. In the limited circumstance presented by these facts, and in light of the diminished expectation of privacy with respect to the contents of automobiles (see, People v Belton, 55 NY2d 49, 53), the officer was justified in looking for the document in the area specified by defendant rather than having to arrest him (compare, People v Ellis, 62 NY2d 393, 396, and People v Copeland, 39 NY2d 986, with People v Marsh, 20 NY2d 98, 100). We thus do not reach the remaining issues raised by defendant.

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

Order affirmed in a memorandum.

       The suppression court said of Enders’ testimony: "It was coherent, it was cogent, it was credible, and I repeat, uncontradicted.” There was no other testimony at the suppression hearing.


text:
    Jose A. Alicea, Jr., Appellant, v Ogden Newspapers, Inc., Respondent.
    Decided March 27, 1986

      APPEARANCES OF COUNSEL

      John L. Goodell for appellant.

      William A. Evans for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (115 AD2d 233).

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


text:
    In the Matter of Susan Sreter, Doing Business as Nassau Nursing Home, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants.
    Decided March 27, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Clifford A. Royael of counsel), for appellants.

      Howard D. Stave for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to appellants, by vacating so much thereof as enjoined appellants from recouping purported Medicaid over-payments for the years 1970-1973 and remitted the matter to the Commissioner of Health to determine the amount of repayment, and by directing appellants to hold a hearing in accordance with the governing regulations (10 NYCRR 86-2.7 et seq.), and, as so modified, affirmed (see, Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169).

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


text:
    Rosemary Leary, Appellant, v City of Rochester, Respondent.
    Decided March 27, 1986

      APPEARANCES OF COUNSEL

      Wayne M. Harris and Steven E. Malone for appellant.

      Louis N. Kash, Corporation Counsel (Gary J. O’Donnell of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (115 AD2d 260).

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


text:
    In the Matter of Fannie Zivitz, Claimant, v J & S Meat Corporation et al., Respondents. Workers’ Compensation Board, Appellant.
    Decided March 27, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Howard B. Friedland of counsel), for appellant.

      Ronald S. Einziger for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (114 AD2d 709).

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


text:
    Cross Properties, Inc., Respondent-Appellant, and Farsowin Ltd., et al., Respondents, v Brook Realty Co., Inc., Appellant-Respondent, and Country Dollar Corporation et al., Respondents-Appellants, et al., Defendants.
    Decided March 27, 1986
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601 [former a] [i]); and cross appeals dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    Arthur Cabrera et al., Respondents, v Frank Ferranti et al., Appellants.
    Decided March 27, 1986
   Appeal pursuant to CPLR 5601 (d) from an judgment entered June 12, 1985 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the judgment appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Long Island Liquid Waste Association, Inc., et al., Appellants, v A. Barton Cass, as Administrative Head of Suffolk County Sewer District, et al., Respondents.
    Submitted March 17, 1986;
    decided March 27, 1986
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and CPLR 5602 (a) (2) applies to a nonfinal order in a proceeding, not in an action.

Motion for a stay dismissed as academic.


text:
    In the Matter of Lorenzo F. Padilla, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted March 3, 1986;
    decided March 27, 1986
   On the court’s own motion, appeal from order of disbarment dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

Motion for an order remanding petitioner’s officers to an "independent” disciplinary committee dismissed upon the ground that this court does not have jurisdiction to entertain the motion.

Motion to strike petitioner’s brief and to stay disbarment, etc., dismissed as academic.


text:
    Pablo Lopez et al., Respondents, v Precision Papers, Inc., et al., Defendants, and Clark Equipment Co., Inc., Appellant. (And Third- and Fourth-Party Actions.)
    Argued February 4, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Herbert Rubin, Michael Hoenig, David B. Hamm and Jack E. Toliver for appellant.

      Cheryl Eisberg Moin, Emilio Nunez, Harry H. Lipsig, Jay W. Dankner and Pamela Anagnos Liapakis for respondents.
   OPINION OF THE COURT

Memorandum.

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

The record presents triable issues of fact concerning whether the forklift, as marketed with an attached but removable overhead safety guard, was "not reasonably safe” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108) for the uses intended or reasonably anticipated by the manufacturer (see, Micallef v Miehle Co., 39 NY2d 376, 385-386).

As correctly noted by the Appellate Division in denying defendant’s motion for summary judgment (CPLR 3212), this court’s holding in Robinson v Reed-Prentice Div. (49 NY2d 471) does not compel a different result. In contrast with the detaching of the removable safety guard in this case, Robinson involved "[mjaterial alterations [i.e., cutting a 6-inch by 14-inch access hole in the safety gate of a plastic molding machine] which work[ed] a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature” (49 NY2d, at p 481). There is evidence in this record that the forklift was purposefully manufactured to permit its use without the safety guard.

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

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


text:
    Hawkins, Delafield & Wood et al., Appellants, v Philip R. Michael, as Commissioner of Finance of the City of New York, Respondent.
    Argued February 11, 1986;
    decided March 20, 1986

      APPEARANCES OF COUNSEL

      Charles L. Kades, Thomas W. Pippert and James R. Eustis, Jr., for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Glenn Newman, Charles Himmelman and Fred B. Ringel of counsel), for respondent.

      Chester J. Straub and Roger D. Netzer for Willkie Farr & Gallagher, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

A determination of the Commissioner of Finance should be upheld unless shown to be erroneous, arbitrary or capricious (see, Matter of Holy Spirit Assn. v Tax Commn., 55 NY2d 512, 518; Matter of Koner v Procaccino, 39 NY2d 258, 264-265). Here, the Commissioner denied the deductions claimed by petitioners on the ground that section S46-6.0 (3) of the New York City unincorporated business tax (Administrative Code of City of New York § S46-6.0 [3]) disallows deductions for "amounts paid or incurred to a proprietor or partner for services or for use of capital”. In view of the finding that the retirement payments in question constituted deferred compensation for services performed by the payees or for use of their capital while they were actively engaged in the conduct of the partnership business, and inasmuch as section S46-6.0 (3) contains no language limiting its scope to payments actually made while the payees were still active partners, the Commissioner’s determination was the correct interpretation and application of the statutory provision and, therefore, properly confirmed (see, Matter of Grace v New York State Tax Commn., 37 NY2d 193, 195-197).

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

Judgment affirmed, with costs, in a memorandum.


text:
    Barbara De Zego et al., Appellants, v Donald F. Bruhn, M. D., P. C., et al., Defendants, and Albert Tydings, M. D., P. C., Respondent.
    Argued February 12, 1986;
    decided March 20, 1986

      APPEARANCES OF COUNSEL

      Kathleen M. Beckett for appellants.

      John D. Kelly, Stephen P. Burke, Robert J. Walker and John F. Hastings for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that plaintiffs failed to meet their burden of proving service outside the State (see, CPLR 313) pursuant to CPLR 308 (1). The affidavits of service are devoid of the requisite factual and descriptive information to show that plaintiffs’ summons and complaint were delivered to defendant personally (see, CPLR 306 [a], [b]). Moreover, even if, as plaintiffs contend, the affidavits were entitled to a general presumption of regularity (see, CPLR 4520), that presumption was overcome by defendant’s sworn testimony which plaintiffs failed to rebut with any additional evidence (see, Richardson, Evidence § 72 [Prince 10th ed]). Regarding other methods of service, plaintiffs’ affidavits do not even purport to establish service upon defendant through a person of suitable age and discretion pursuant to CPLR 308 (2), and, inasmuch as it was conceded at oral argument that a professional corporation is not involved in this case, it is unnecessary to consider whether plaintiffs satisfied the requirements for service upon such a corporation. Accordingly, the complaint was properly dismissed for plaintiffs’ failure to obtain personal jurisdiction over defendant.

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

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


text:
    Donald Liverpool, as Administrator of the Estate of Annie Liverpool, Deceased, Appellant, v Arverne Houses, Inc., et al., Defendants, and Herbert Fisch, Respondent.
    Decided March 25, 1986

      APPEARANCES OF COUNSEL

      Lawrence E. Jacobson for appellant.

      David P. Franks for respondent.
   OPINION OF THE COURT

Memorandum.

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

As we recently explained in Duffy v Horton Mem. Hosp. (66 NY2d 473), "[i]t is one thing to permit an amendment to relate back as applied to parties before the court. It is quite another thing to permit an amendment to relate back when a new party is sought to be added by amendment against whom the Statute of Limitations has run” (id., at p 477). Inasmuch as the party sought to be added as a defendant in plaintiffs second amended complaint was a stranger to the litigation prior to the expiration of the applicable Statutes of Limitations, plaintiffs claim against that party was necessarily barred as untimely. Moreover, although CPLR 1009 provides a 20-day period within which a plaintiff need not obtain leave of the court to amend the complaint to assert direct claims against a new third-party defendant, the statute does not relieve a plaintiff from the operation of the Statutes of Limitations otherwise applicable to the claims asserted.

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

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


text:
    M. W. Zack Metal Company, Appellant, v International Navigation Corporation of Monrovia et al., Defendants, and Newcastle Protection & Indemnity Association et al., Respondents.
    Decided April 1, 1986

      APPEARANCES OF COUNSEL

      Anthony B. Cataldo for appellant.

      Helen M. Benzie for Federal Insurance Company and another, respondents.

      Joseph F. De May, Jr., for Newcastle Protection & Indemnity Association and others, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (112 AD2d 865). We add that there was no prejudice to plaintiff in the Appellate Division’s having dealt with the motions as ones for summary judgment even though Special Term’s consideration of them was only as motions to dismiss for failure to state a cause of action. Defendants’ motion and cross motion were stated to have been made pursuant to CPLR 3212. Moreover, plaintiff’s answering affidavit acknowledged in several places that defendants’ motions were for summary judgment and plaintiff responded to the motions by setting forth factual data in support of the allegations of the complaint (Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 103; O’Hara v Del Bello, 47 NY2d 363, 367-368; see, Rich v Lefkovits, 56 NY2d 276, 281-283).

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


text:
    In the Matter of Martin Connell et al., Appellants, v Town Board of the Town of Wilmington et al., Respondents, and Grace Altieri et al., Intervenors-Respondents.
    Decided April 1, 1986

      APPEARANCES OF COUNSEL

      Richard V. Meath for appellants.

      William H. Kissel for respondents.

      James M. Brooks for intervenors-respondents.

      Robert Abrams, Attorney-General (Ezra I. Bialek and Robert Hermann of counsel), for New York State Department of Environmental Conservation, amicus curiae.

   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, on the ground that the proceeding is untimely (CPLR 217; Press v County of Monroe, 50 NY2d 695; Solnick v Whalen, 49 NY2d 224, 229-230). We do not reach the other issues in this case.

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


text:
    The People of the State of New York, Respondent, v Willie (William) Ingram, Appellant.
    Argued February 13, 1986;
    decided April 1, 1986

      APPEARANCES OF COUNSEL

      David T. Wasserman and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Richard E. Haftel and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of felony murder and burglary in the third degree, charges arising from his early morning entry into the residence of Melvin Cooper. He contends that the People failed to prove that he caused Cooper’s death during the course of the burglary. The entry was made after defendant and his companions surveyed the house for some time before the break-in to determine if anyone was inside. Apparently their initial activities awakened Mr. Cooper for after defendant entered through a window he was confronted by Cooper pointing a gun at him. Cooper ordered defendant to lie face down on the floor and then notified the police. After the police came and took defendant into custody, Cooper collapsed. He died shortly afterwards at the hospital. Defendant was charged with causing Cooper’s death by myocardial infarction during the course of burglarizing the Cooper house.

The People established that Cooper had a history of heart trouble, confirmed by postmortem findings of an enlarged heart and narrowed arteries, that he exhibited signs of stress during the incident and that he collapsed suddenly during it. Moreover, the hospital record established that on his arrival Cooper was in shock, he had elevated blood pressure, and his heart beat was irregular. Based upon this evidence the People’s medical expert stated her opinion that Cooper died of myocardial infarction precipitated by the stress of finding a burglar in his home. We conclude that her testimony linking the burglary and the infarction was sufficient under applicable legal standards, i.e., it was not "so baseless or riddled with contradiction that it was unworthy of belief as a matter of law” (see, People v Anthony M., 63 NY2d 270, 281; People v Stewart, 40 NY2d 692, 699). The inability of the witness to discover any postmortem clinical signs that the infarction occurred, other than a slight change in the color of the heart muscle, does not require a contrary finding. She explained that clinical evidence of infarction does not appear in the body unless the incident occurred at least 12 hours prior to death. Because Cooper died shortly after the incident no clinical signs of infarction would be expected in his case.

Defendant’s contention that he may not be guilty of felony murder unless the fact of death and also the manner in which it occurred was a foreseeable consequence of the burglary is not preserved for review because his counsel failed to except to the charge as given or request additional instructions on the point. Similarly, defendant failed to challenge his sentence before the trial court and inasmuch as his claim is that his sentence constituted cruel and inhuman punishment it is not properly before us (cf. People v Morse, 62 NY2d 205, 214; People v Fuller, 57 NY2d 152, 156, n 3).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York ex rel. Steven W. Roides, Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Appellants. (And 14 Additional Proceedings.)
    Decided April 1, 1986

      APPEARANCES OF COUNSEL

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

      Norman P. Effman and Leigh E. Anderson for respondents.

      Ellen M. Yacknin and David C. Leven for Prisoners’ Legal Services of New York, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

In these 15 separate article 78 proceedings challenging prison disciplinary board determinations that respondents, then inmates at Attica Correctional Facility, violated institutional rules, respondents contend that the inmate behavior rules were not filed with the Secretary of State at the time of the alleged violations, that the rules were therefore ineffective, and that the findings of guilt must for that reason be annulled. Appellant does not dispute that the rules were unfiled. In this situation, the rules were of no effect whatever, and findings of guilt based on them must be vacated in accordance with Matter of Jones v Smith (64 NY2d 1003). While respondents first urge this argument on appeal, appellant suggests no factual showing or legal counterstep that might have been made if the argument had been tendered below.

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

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


text:
    Aetna Casualty and Surety Company, Appellant, v Bekins Van Lines Co., Respondent and Third-Party Plaintiff. Gerald Smith, Third-Party Defendant.
    Argued February 12, 1986;
    decided April 1, 1986

      APPEARANCES OF COUNSEL

      John P. DAmbrosio for appellant.

      Eric A. Portuguese and Steven B. Prystowsky for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the motion of defendant Bekins for summary judgment dismissing Aetna’s complaint denied, and plaintiff’s cross motion for summary judgment in the principal sum of $14,161.87 granted.

Gerald Smith, the third-party defendant, engaged Bekins, a common carrier, to ship his personal belongings, including a Mercedes Benz automobile, from Houston to New York City. For this purpose, Smith opted for a so-called "released value” of $58,000. In addition Smith had an automobile policy, issued by Aetna, covering the Mercedes Benz.

The contents of the truck carrying Smith’s possessions were completely destroyed by fire. Smith filed a claim with Aetna and received $14,161.87 for the loss of the automobile. Subsequently, he claimed an actual loss of $119,475 with Bekins. While Bekins was investigating the loss, it received notice of Aetna’s subrogation claim. Bekins determined that Smith’s loss exceeded the released value of $58,000, and, therefore, paid the full released value directly to Smith.

Aetna then brought this action asserting that Bekins should have paid $14,161.87 to Aetna pursuant to Aetna’s notice of the insurer’s right of subrogation. Bekins impleaded Smith as a third-party defendant. Special Term granted Bekins’s motion for summary judgment and denied Aetna’s cross motion holding that Bekins’s liability was limited to the $58,000 it had already paid. The Appellate Division affirmed, by a divided court.

Bekins’s payment of the entire $58,000 "released value” to Smith was in violation of Aetna’s subrogation rights (see, Ocean Acc. & Guar. Corp. v Hooker Electrochemical Corp., 240 NY 37, 47). Therefore, the settlement between Bekins and Smith, after Aetna informed Bekins of its subrogation rights, has no effect upon Aetna’s rights against Bekins (Hamilton Fire Ins. Co. v Greger, 246 NY 162; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., supra; Connecticut Fire Ins. Co. v Erie Ry. Co., 73 NY 399; Insurer — Rights Against Third Person, Ann., 92 ALR2d 102, 124) and Aetna is entitled to recover the full amount of Aetna’s claim from Bekins which Bekins improperly paid to Smith (Hamilton Fire Ins. Co. v Greger, supra). In the present circumstances, Aetna and Be-kins are not coinsurers.

Although it appears that Bekins would be entitled to reimbursement of the full $14,161.87 from Smith, since Bekins has not appealed to this court, we are unable to grant such affirmative relief (Little Joseph Realty v Town of Babylon, 41 NY2d 738, 746; People v Consolidated Edison Co., 34 NY2d 646, 648). Bekins, of course, may apply at Special Term for a judgment over against Smith for the additional payment it must make to satisfy Aetna’s subrogation rights.

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v John C. Lawlor, Respondent.
    Decided April 1, 1986
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the Appellate Term’s determination of reversal was not on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal (CPL 450.90 [2] [a]). Although the Appellate Term stated that its reversal was on the law, it was based on a claimed error which was not preserved and does not present a question of law for review by this court (People v Dercole, 52 NY2d 956). In view of the dismissal of the appeal we have not reached the merits and our disposition may not be considered approval of the ruling below that defendant was not properly informed of his statutory right to be represented by an attorney.


text:
    Eleanor R. Bohlman, Respondent, v John W. Bohlman et al., Appellants.
    Submitted March 17, 1986;
    decided April 1, 1986
   Motion for leave to appeal from that part of the order of the Appellate Division which affirmed the order of Supreme Court denying defendants’ motion to vacate that court’s judgment, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Motion for leave to appeal from that part of the order of the Appellate Division which dismissed the appeal taken from that court’s judgment, dismissed upon the ground that an appeal does not lie from a judgment entered upon an uncontested inquest (CPLR 5511).

Motion for a stay dismissed as academic.


text:
    Carol J. Capone, Appellant, v Chesebrough Pond’s, Inc., Respondent.
    Submitted March 3, 1986;
    decided April 1, 1986
   Motion for leave to appeal dismissed. Dismissal of the appeal taken as of right for lack of prosecution was a determination on the merits of all claims which could have been litigated had that appeal been timely argued or submitted (see, Matter of Crescenzi, 64 NY2d 774).

Judge Hancock, Jr., taking no part.


text:
    In the Matter of Barney Cassidy et al., Appellants, v New York City Department of Correction et al., Respondents.
    Submitted March 10, 1986;
    decided April 1, 1986
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that movants are not aggrieved by the order of the Appellate Division (CPLR 5511).


text:
    In the Matter of Vivian Morgan, Appellant, v City of Elmira et al., Respondents.
    Decided April 1, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the order of reversal, absent a dissent by at least two Justices or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, §D.


text:
    The People of the State of New York, Appellant, v Louis Pisculli et al., Respondents.
    Decided April 1, 1986
   Appeal dismissed, by the Court of Appeals sua sponte, upon the ground that the Appellate Term order from which permission to appeal has been granted has been superseded by a subsequent order of Appellate Term and the People as appellants are not adversely affected by the subsequent order (CPL 450.90 [1]).


text:
    The People of the State of New York, Respondent, v Pablo Casiano, Appellant.
    Argued March 24, 1986;
    decided April 3, 1986
    APPEARANCES OF COUNSEL

      Thomas H. Busch for appellant.

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

Memorandum.

The order should be reversed and the matter remitted to the Appellate Division for a de nova consideration of defendant’s appeal.

Several nonfrivolous issues can be identified in the record of the trial court proceedings which resulted in defendant’s conviction. Nevertheless, his assigned appellate counsel filed an Anders/Saunders brief (see, Anders v California, 386 US 738; People v Saunders, 52 AD2d 833), claiming that the appeal was frivolous. He did so without (a) consulting with defendant or (b) analyzing the issues presented by the record. Although the Appellate Division, based on its review of defendant’s pro se brief, found that the record presented appealable issues, it found none warranted reversal, and affirmed the conviction without assigning new counsel to present the appeal.

Defendant did not waive his right to counsel and the Appellate Division’s failure to make a new assignment after discovering nonfrivolous issues were present deprived him of his right to the effective assistance of counsel on appeal. Our decision in People v Gonzalez (47 NY2d 606) is controlling on the issue and should have been followed (see also, Evitts v Lucey, 469 US 387; Anders v California, supra). Inexplicably, the District Attorney’s brief does not even cite, let alone distinguish, this recent decision or other pertinent decisions discussing this issue. As we have noted before, neither a review of the record by the Appellate Division nor a pro se brief can substitute for the single-minded advocacy of appellate counsel (see, People v Gonzalez, supra, pp 610-611). A new assignment of counsel and reconsideration of the appeal is required.

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

Order reversed, etc.


text:
    In the Matter of Angelo Cortez, Appellant, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, Respondent.
    Decided April 3, 1986

      APPEARANCES OF COUNSEL

      John D. Charles for appellant.

      Robert Abrams, Attorney-General (Martin A. Hotvet, Robert Hermann and Peter H Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In Matter of Garcia v LeFevre (64 NY2d 1001), we held that because inmate Garcia was not given any reason for the hearing officer’s decision not to allow his witnesses to testify in his presence at the Tier III disciplinary hearing, the determination violated the Commissioner’s own regulations and was, therefore, irrational. Here, unlike in Garcia, the petitioner was provided with a form which indicated that, because both he and all his witnesses were Special Housing Unit inmates, the witnesses would not be allowed to testify in the presence of the accused because to do so would "jeopardize institutional safety or correctional goals” (7 NYCRR 254.5 [b]). After petitioner commenced this article 78 proceeding, the disciplinary report cards of petitioner and the inmate witnesses documenting the assaultive and dangerous propensities of both the inmate and his witnesses were attached to respondent’s answer.

The better practice, and one which should be followed in the future, would be for prison officials, before closing the hearing, to document their reasons for conducting the testimony of the inmate’s witnesses outside the presence of the inmate on the administrative record so that the inmate may evaluate them before commencing proceedings for judicial review. One of the important purposes of documentation, however, is to satisfy the court of the validity and reasonableness of the order of exclusion and that it is not a mere after the fact rationalization. Inasmuch as the inmate and witness report cards in this case amply demonstrated that fact, the prison officials’ determination should be upheld.

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

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


text:
    Gary Shamley, Appellant, v ITT Corporation et al., Respondents.
    Decided April 3, 1986
    APPEARANCES OF COUNSEL

      Gary Shamley, appellant pro se.

      Russell G. Tisman and Claude M. Tusk for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and defendant’s cross motion to dismiss the action with prejudice denied.

Plaintiff commenced this action against defendants, his former employer and several supervisory personnel, asserting causes of action for, inter alla, defamation and prima facie tort. The original complaint was dismissed, with leave to move to replead for failure to comply with CPLR 3014 and 3024 (a). After plaintiff’s motion for leave to replead was denied, plaintiff moved for return of the security , bond he had posted for costs as a nonresident pursuant to CPLR 8501 (a) and stated that he would not replead his complaint in State court, but would instead commence an action in Federal court. Prior to defendants’ response, plaintiff filed suit in Federal District Court in New Jersey, alleging the same causes of action asserted in this action and additional claims for employment discrimination. Defendants opposed the motion and cross-moved for an order dismissing the action in State court "with prejudice” under CPLR 3217 (b), releasing the security bond to them as partial reimbursement for costs and awarding additional costs, disbursements and counsel fees. The court granted plaintiff’s motion for release of his security upon payment of one bill of costs to defendants and also dismissed plaintiff’s action with prejudice. It denied the branch of defendants’ cross motion that sought additional costs and counsel fees.

Plaintiff appealed from so much of Supreme Court’s order as granted defendants’ cross motion to dismiss his action with prejudice. The Appellate Division affirmed, without opinion, but provided in its order that it interpreted the dismissal with prejudice as a bar only to a new action in State court. The principal issues on this appeal are whether it was an abuse of discretion as a matter of law for the court to have granted defendants’ cross motion for a dismissal with prejudice and whether, as plaintiff suggests, such a dismissal will be res judicata as to his pending claims in Federal court.

A dismissal with prejudice cannot be sustained here. CPLR 3217 authorizes a voluntary discontinuance by court order on motion of "a party asserting a claim” (CPLR 3217 [b]). This provision cannot be the basis for a dismissal motion by a party defending a claim unless the party asserting the claim consents or joins in the motion (see, CPLR 3217 [b]; Recommendations Relating to Voluntary Discontinuance, 19th Ann Report of NY Judicial Council, 1953, at 201, 207; Grimmett v Board of Educ., 36 Misc 2d 874, 875; Bell v Broadway Sav. Bank, 129 NYS2d 23, 25; 4 Weinstein-Korn-Miller, NY Civ Prac If 3217.09, at 32-355 — 32-356). Plaintiff did not request a discontinuance when he moved to recover his security bond; indeed he clearly opposed defendants’ cross motion in his answering affidavit. Thus, there was no basis for Special Term to apply the statute relating to voluntary discontinuances and apply it as one authorizing involuntary dismissals.

In view of this disposition of the case, we need not reach plaintiff’s assertion that because a dismissal with prejudice is res judicata as to a subsequent action in State court it will, under traditional rules of full faith and credit and the provisions of 28 USC § 1738, bar his pending claims in Federal court (compare, Schultz v Boy Scouts of Am., 65 NY2d 189, 204; Migra v Warren City School Dist. Bd. of Educ., 465 US 75, 80-81, with Brown v Bullock, 17 AD2d 424, 428).

We have considered the parties’ remaining contentions and, to the extent they are preserved, we find that they lack merit.

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

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


text:
    Murray Burnett et al., Appellants, v Warner Bros. Pictures, Inc., et al., Respondents, et al., Defendant.
    Argued February 12, 1986;
    decided April 3, 1986

      APPEARANCES OF COUNSEL

      Patricia J. Murphy and Michael J. Zissu for appellants.

      Donald S. Zakarin and Philip R. Hoffman for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (113 AD2d 710).

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


text:
    Vincent D. Bytner, Appellant, v Capital Newspapers, Division of the Hearst Corporation et al., Respondents.
    Decided April 3, 1986

      APPEARANCES OF COUNSEL

      Robert E. Ganz for appellant.

      Peter L. Danziger and Thomas F. Gleason for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that the civil rights cause of action was properly dismissed by Special Term on the ground that the publication was newsworthy and not for the purpose of advertising or trade. (See, Stephano v News Group Pub., 64 NY2d 174, 184.) The defamation cause of action was, likewise, properly dismissed. The contested photograph and caption are not reasonably susceptible of a meaning defamatory to the public figure misidentified in the caption as the individual depicted in the photograph. (See, James v Gannett Co., 40 NY2d 415, 419-420.)

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

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


text:
    Donald R. Peters, Appellant, v David Newman, Respondent.
    Submitted March 24, 1986;
    decided April 3, 1986
   Motion to dismiss appeal granted and appeal dismissed for untimeliness, with costs and $20 costs of motion. It is noted that the extension of time pursuant to CPLR 5514 (a) will not apply where the dismissal is for untimeliness.


text:
    Cynthia Reinisch, Appellant, v Metropolitan Life Insurance Company et al., Respondents.
    Submitted March 24, 1986;
    decided April 3, 1986
   Motion to vacate the Court of Appeals order of dismissal dated March 15, 1984 denied. [See, 62 NY2d 617.]


text:
    Lorraine Witt et al., Appellants, v Jack G. Agin et al., Defendants, and Henry Schneer, Respondent.
    Argued March 20, 1986;
    decided April 29, 1986

      APPEARANCES OF COUNSEL

      Martin Diennor and Paul F. McAloon for appellants.

      Mark J. Bunim and Ivy S. Fischer for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (112 AD2d 64) insofar as they pertain to defendant Schneer.

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


text:
    The People of the State of New York, Respondent, v Frank W. Miles, Appellant.
    Argued March 21, 1986;
    decided April 29, 1986

      APPEARANCES OF COUNSEL

      Joseph M. Ingarra for appellant.

      Michael Kavanagh, District Attorney (Joan Lamb and Michael Kirk of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. The findings below of no joint investigation were not erroneous as a matter of law (see, People v Fuschino, 59 NY2d 91, 99-100).

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


text:
    Margaret Beare, Plaintiff, v William J. Byrne, Defendant and Third-Party Plaintiff-Respondent, et al., Defendant. Orange County, Third-Party Defendant-Respondent. (And a Fourth-Party Action.)
    Argued March 20, 1986;
    decided April 29, 1986

      APPEARANCES OF COUNSEL

      James G. Sweeney, County Attorney, for appellant.

      Richard I. Cantor for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (103 AD2d 814).

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


text:
    Allstate Insurance Company, Respondent-Appellant, v Farmers Insurance Group et al., Defendants, and U.S. Fire Insurance Company, Appellant-Respondent.
    Argued March 17, 1986;
    decided April 29, 1986

      APPEARANCES OF COUNSEL

      William H. Morris and Gerald P. McMorrow for appellant-respondent.

      Stephen J. Smirti, Jr., William M. Savino and Diane M. Trippany for respondent-appellant.
   OPINION OF THE COURT

Order modified, with costs to defendant U.S. Fire Insurance Company, by reinstating the judgment of Supreme Court, New York County, and, as so modified, affirmed (State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369).

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


text:
    Ethel Scull, Respondent, v Robert C. Scull, Appellant.
    Argued March 25, 1986;
    decided April 29, 1986

      APPEARANCES OF COUNSEL

      Peter M. Fishbein, Stanley H. Fuld and Thomas Epstein for appellant.

      Myrna Felder and Raoul Lionel Felder for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the opinion by Justice Arnold L. Fein at the Appellate Division (94 AD2d 29). The weight of the evidence more nearly comports with the findings made by the Appellate Division.

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


text:
    Harrison J. Smith, Jr., Respondent, v James Sipe, as President of Security Unit Employees, Council 82, AFSCME, AFL-CIO, Appellant.
    Argued March 21, 1986;
    decided April 29, 1986

      APPEARANCES OF COUNSEL

      Christopher H. Gardner for appellant.

      Louis M. Klein for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and defendant’s motion to dismiss the complaint granted for the reasons stated in the dissenting memorandum of Presiding Justice A. Franklin Mahoney at the Appellate Division (109 AD2d 1034, 1036-1037). Question certified answered in the affirmative.

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


text:
    829 Seventh Avenue Company, Appellant, v Eve Reider, Respondent.
    Argued March 17, 1986;
    decided April 29, 1986

      APPEARANCES OF COUNSEL

      Jeffrey R. Metz and Patricia D. De Cicco for appellant.

      Richard B. Feldman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the order of the Appellate Term granting final judgment of possession to petitioner landlord reinstated, with costs. The question certified should not be answered as unnecessary.

The issue presented on this appeal is whether the respondent adduced legally sufficient proof that she had been "living with” her grandmother at the time of the grandmother’s death.

On May 1, 1982, respondent in this holdover proceeding moved into a rent-controlled one-bedroom apartment in Manhattan of which her grandmother was the statutory tenant. She slept on a sofa bed in the living room, shared household chores with her grandmother and contributed $100 in cash toward each month’s rent. Before moving in with her grandmother, the respondent had resided in a studio apartment in Rego Park, Queens, which she leased for $350 per month and furnished with her own furniture and other household goods. On May 1, 1982, the tenant orally sublet her Queens apartment to a friend for $250 per month.

After the grandmother’s sudden hospitalization in mid-August 1982 the respondent paid the September rent and after the grandmother’s death on September 29, 1982, the respondent paid the October rent, both payments being made with her checks and accepted by the landlord. After the respondent informed the landlord of her grandmother’s death, her November rent payment was rejected. Service of a notice of termination of license and notice to quit followed the rejection.

The respondent claims she is entitled to remain in possession of the apartment pursuant to New York City Rent and Eviction Regulations § 56 (d), which provides: "No occupant of housing accommodations shall be evicted under this section where the occupant is either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant”.

Section 56 (d), by its terms, protects only members of a deceased statutory tenant’s family. Thus the "living with” requirement must be read to mean living with such statutory tenant in a family unit, which in turn connotes an arrangement, whatever its duration, bearing some indicia of permanence or continuity (Goodhue House Co. v Bernstein, NYLJ, Dec. 7, 1981, p 14, col 3).

In the present case, the respondent never put her name on her grandmother’s mailbox, and did not advise either the doorman or the landlord of her cooccupancy. She left all her furniture in the Rego Park apartment, maintained her telephone number there, and kept her bank accounts at a Rego Park bank. These facts, found by the courts below on virtually uncontradicted proof, are indicia only of transience and temporary occupancy. The Appellate Division erred, therefore, in determining that section 56 (d) protected the respondent from eviction as a holdover.

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

Order reversed, with costs, and the order of the Appellate Term reinstated in a memorandum. Question certified not answered as unnecessary.


text:
    The People of the State of New York, Respondent, v Mark Robert Wroblewski, Appellant.
    Argued March 18, 1986;
    decided April 29, 1986

      APPEARANCES OF COUNSEL

      Carolyn Connors Balowitz, Rose H. Sconiers and John A. Ziegler for appellant.

      Richard J. Arcara, District Attorney (Louis A. Haremski and John J. De Franks of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. The finding of probable cause made by the Appellate Division involves a mixed question of law and fact which, there being support for its conclusion in the record, is beyond our power of review (see, People v Bigelow, 66 NY2d 417, 420-421). On the remaining issues, we affirm for the reasons stated in the opinion by Justice (as he then was) Stewart F. Hancock, Jr., at the Appellate Division (109 AD2d 39).

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


text:
    Anthony L. Jordan Health Corporation, Doing Business as Anthony L. Jordan Health Center, Respondent, v David Axelrod, as Commissioner of Department of Health, et al., Appellants.
    Argued March 19, 1986;
    decided April 29, 1986

      APPEARANCES OF COUNSEL

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

      Teresa D. Johnson for respondent.
   OPINION OF THE COURT

Memorandum.

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

Medicaid reimbursement rates for petitioner, a diagnostic and treatment center, are calculated by respondents pursuant to Public Health Law § 2807 for a rate period of April 1 through March 31. These rates — prospective in nature — are determined by adjusting the cost data of each facility for a base year. While 1978 had been used as the base year in determining petitioner’s 1982-1983 reimbursement rate, owing to a change in the law enacted March 31, 1983, respondents used 1981 as the base year for petitioner’s 1983-1984 reimbursement rate. However, respondents did not actually determine petitioner’s 1983-1984 rate until December 1, 1983, at which time respondents advised petitioner that, with its 1981 costs below its 1978 costs, petitioner’s perpatient reimbursement rate would be reduced for 1983-1984, retroactive to April 1, 1983. Retroactive application of the reduced rate resulted in a substantial overpayment, which petitioner paid respondents under protest; it then commenced this article 78 proceeding for a refund and other relief. Supreme Court granted the petition and the Appellate Division affirmed.

Section 2807 (7) (a) of the Public Health Law requires that respondents give notice of new rates of Medicaid reimbursement at least 60 days "prior to the beginning of an established rate period for which the rate is to become effective.” Retroactive reimbursement rates are inconsistent with this provision, the general purpose of the prospective rate system being "to permit providers of nursing home and health-related services to conduct their operations in full reliance upon the rates certified by the commissioner” (Hurlbut v Whalen, 58 AD2d 311, 319, lv denied 43 NY2d 643). The bill passed on March 31, 1983 — the Laws of 1983 (ch 53) — requiring respondents to use 1981 rather than 1978 as the base year, neither authorized retroactive reimbursement rates, as the Legislature might have provided had it so intended (see, Matter of Kaye v Whalen, 44 NY2d 754, rearg denied 44 NY2d 949, appeal dismissed 439 US 922), nor repealed the notice provision of section 2807 (7) implemented just three months earlier (L 1982, ch 536). Nor can a provision for retroactive application simply be read into chapter 53 when to do so would create a conflict with Public Health Law § 2807 (7) (a) (see, Ball v State of New York, 41 NY2d 617; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 391).

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

Order affirmed, with costs, in a memorandum.


text:
    Laura S. Brown, Respondent, v William H. Brown, Appellant.
    Submitted February 24, 1986;
    decided April 29, 1986
   Motion for leave to appeal from an order of the Appellate Term dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (CPLR 5602 [a] [1]).