author: Simons, J.

text:
    Joan Sage, Appellant, v Fairchild-Swearingen Corporation, Defendant and Third-Party Plaintiff-Respondent; Broome County Aviation, Inc., Third-Party Defendant; Commuter Airlines, Inc., Third-Party Defendant-Respondent.
    Argued November 12, 1987;
    decided December 17, 1987

      POINTS OF COUNSEL

      Anna K. Holmberg for appellant.

      Carol K. Young and Marshall S. Turner for defendant and third-party plaintiff-respondent.

      Nathaniel F. Knappen for third-party defendant-respondent.
   OPINION OF THE COURT

Simons, J.

Plaintiff, Joan Sage, an employee of third-party defendant Commuter Airlines, Inc., was injured while working in an aircraft owned by Commuter and manufactured by defendant Fairchild-Swearingen Corporation. The accident happened after plaintiff finished unloading baggage from the aircraft and attempted to lower herself from the cargo compartment. While doing so, she caught her finger on a hanger or hook attached to the doorway of the cargo compartment injuring the finger so severely that it had to be amputated. She subsequently instituted this action against defendant seeking to recover damages for her injuries on the theories of negligence and strict products liability based on a design defect. Defendant impleaded plaintiff’s employer, charging it with negligence and failing to provide plaintiff with a safe place to work. The action was tried before a jury and resulted in a verdict for plaintiff on the products liability claim. The jury found that the hanger was a replacement part made and installed by Commuter’s employees but that it was substantially the same design and had substantially the same characteristics as the hanger originally installed by defendant. Finding the hanger defectively designed and that the design caused plaintiff’s injuries without any fault on her part, the jury awarded plaintiff $185,000 in damages and apportioned fault 75% to defendant and 25% to the third-party defendant.

The Appellate Division, relying on our decision in Robinson v Reed-Prentice Div. (49 NY2d 471), reversed and dismissed the complaint because the hanger on which plaintiff caught her finger had not been manufactured by defendant. It also stated that were it not dismissing the complaint as a matter of law, it would find the verdict for plaintiff against the weight of evidence.

There should be a reversal and reinstatement of the complaint. However, because of the Appellate Division’s factual determination that the verdict was against the weight of the evidence, the matter should be remitted for a new trial.

The accident happened at Tompkins County Airport in Ithaca, New York, at about 9:00 p.m. on October 21, 1980. A Metro II 19-seat Commuter aircraft had just landed and plaintiff, pursuing her duties as a station agent, entered the aft hatch and began to unload passenger baggage by placing it on a baggage cart on the ground below. When she completed her work, plaintiff sat on the sill of the doorway, grasped the aft side of the doorframe with her left hand, and jumped. As she did so, the third finger of her left hand caught on a ladder hanger placed on the doorframe. She was suspended in air, hanging by her finger, until she freed herself with her other hand.

The door to the cargo compartment was located to the rear of the passenger section and was about five-feet wide. A freestanding ladder, six-feet long, used for entering and exiting the compartment, was supplied with the aircraft but was not available on the night of the accident. The aircraft was designed so that during flight the ladder was stowed by hanging it across the doorway and parallel to the ground suspended on two hangers, one on either side of the compartment doorway. The hangers were "u” or "v” shaped, with a 1.3-inch opening at the top and were affixed to the frame of the door by rivets. As originally constructed, a 1/16-inch plastic grommet was glued to the inside of the hanger to prevent the metal of the ladder from scraping against metal of the hanger.

Sometime before trial, the aft ladder hanger had been replaced by another made by Commuter’s employees. They did this by flattening the original part with a roller and then cutting a new part to duplicate the original design. The replacement was attached to the doorway of the cargo compartment in the same location and in the same manner as the original. Employees of defendant testified that they assumed the ladder would not be used at all times and that the hangers would break and be replaced. More importantly, defendant’s representatives acknowledged that once a hanger broke it was not expected that the purchaser would buy a new part from defendant because a replacement could easily be fabricated by the purchaser. Defendant’s witnesses also acknowledged that although there was no grommet on the aft hanger at the time of the accident, that would have no effect under the circumstances.

Plaintiff’s expert testified that the hanger presented a "very serious hazard to any personnel who are coming anywhere near it” because it protrudes into the space where personnel have to be, "right at the edge of the compartment” where people are getting in and out of the cargo area. The "placement of that hook [made] it a very inadequate solution to its function.” Moreover, the hook itself was dangerous, the expert stated, because it was only 1/16-inch thick and because its "u” or "v” shape guided whatever came in contact with it — in this case plaintiff’s finger — to the narrowed space at the bottom of the hook’s opening. Commuter’s chief of maintenance testified and he agreed with the expert’s opinion that the design was defective.

The jury also had before it design prints and specifications for the doorway and the ladder, several photos of the cargo compartment, the replacement hanger and duplicate hangers manufactured by defendant of the same design as the original.

At the conclusion of plaintiff’s evidence, defendant moved to dismiss the complaint contending the hook which injured her was a replacement part and, therefore, that it was not liable under the substantial modification rule of Robinson v Reed-Prentice Div. (49 NY2d 471, supra). The court denied the motion, stating plaintiff made out a prima facie case because defective design, not defective manufacture, was involved. The court reasoned that if the jury found the replacement part was substantially the same as the original, that its design was defective and that it caused plaintiff’s injuries, she would be entitled to a verdict.

In its charge at the conclusion of the trial, the court advised the jury that plaintiff’s claim was based both on the defective design of the hanger and of the doorway to the cargo compartment. It instructed the jury that it must first determine whether the hanger was a replacement part and, if so, whether it was substantially the same as the part designed by defendant as original equipment. It explained to the jury that a manufacturer is not liable for plaintiffs damages when its product has been altered but that it could be liable if the replacement part was substantially the same in design and location as the original. The court also submitted interrogatories to the jury which included the three following questions relating to defendant’s liability for defective design: "(1) On October 21, 1980 was the aft hanger a replacement part? (2) On October 21, 1980 was the aft hanger of substantially same design having substantially the same characteristics as the aft hanger as originally designed by Fairchild? (3) Was the design of the aft hanger defective, which defect was a proximate cause of the accident and plaintiffs injury?” Although the verdict sheet referred only to the defective hanger, the court explained to the jury in its charge that the question of whether the hanger was defective referred not only to the design of the hanger itself but also to its location in the opening of the cargo compartment. The jury answered all three questions "yes” and, after answering the remaining questions on comparative fault and third-party liability, it determined the verdict and apportioned the damages.

Imposition of strict liability against a manufacturer rests largely on public policy. The justification for it is that the seller, by marketing his product, has undertaken a special responsibility toward members of the consuming public who may be injured by it. The public has the right to expect that sellers will stand behind their goods. Thus, the burden of accidental injuries caused by products intended for consumption has been placed upon those who market them, to be treated as a cost of production because manufacturers are best able to protect against defective products and bear the cost if they fail (see generally, Sukljian v Ross & Son Co., 69 NY2d 89, 95; Codling v Paglia, 32 NY2d 330, 341; Restatement [Second] of Torts § 402 A, comment c).

Under familiar rules, a product may be defective because of a manufacturing flaw, design defect or because of the inadequacy or absence of warnings for the use of such product (see generally, Sukljian v Ross & Son Co., supra, at 89, 94; Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106-107; Robinson v Reed-Prentice Div., 49 NY2d 471, 478-479, supra). In this case, there is no claim the specific aircraft involved in the accident was defectively made or had some mechanical flaw in it; plaintiff contends instead that all Metro II aircraft made by defendant were defective because, with knowledge of the dangers and options available, defendant conceived a potentially dangerous design for the ladder hanger and its placement on the doorframe of the aircraft’s cargo compartment.

In Robinson v Reed-Prentice Div. (supra), we held that a manufacturer is under a nondelegable duty to design and produce a product that is not defective. A defectively designed product, we said, is one which "is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use” (id., at 479; see also, Micallef v Miehle Co., 39 NY2d 376, 385-386). The determination of whether a product is defectively designed requires a balancing of the likelihood of harm against the burden of taking a precaution against that harm (Robinson v Reed-Prentice Div., supra, at 479). A manufacturer has no control over the use of a product after it leaves it hands, however, so its liability is normally "gauged” as of the time the product was marketed (id.; see also, Cover v Cohen, 61 NY2d 261, 271; Bolm v Triumph Corp., 71 AD2d 429, 435, lv dismissed 50 NY2d 928; cf., Lopez v Precision Papers, 67 NY2d 871). Thus, we held in Robinson (supra) that the manufacturer was not liable for injury caused after the purchaser of a molding machine substantially altered it by removing a safety gate and safety interlocks. Even though the manufacturer could have foreseen that others would change the product and increase its potential for causing injury, we said the manufacturer had no opportunity to control the purchaser’s use of the product or avoid the purchaser’s modification of the product’s design.

The case before us differs from Robinson and others defendant relies on, cases in which the purchaser removed or altered safety mechanisms (Garcia v Biro Mfg. Co., 101 AD2d 779, revd on other grounds 63 NY2d 751 [bolts which held safety guard in place were cut]), removed original parts in the machine and substituted others of different design (Hansen v Honda Motor Co., 104 AD2d 850 [a motorcycle wheel and spokes]), or substituted parts of lesser quality (Mazzola v Chrysler France, S. A., 470 F Supp 24 [substituting flexible hot water hose which disengaged, for a "molded” hose]). In each of those cases, the purchaser changed not only the part but also the design of the part and injury resulted because of the change. In the case before us, the hanger was replaced but, as the jury found, the hanger design was not altered and it was the manufacturer’s defective design — both of the hanger and of the compartment doorway — which caused injury.

Based upon the evidence before it, the jury could find that the hanger originally designed by defendant was defective because its utility as a ladder hanger was overridden by the dangers created by its use and that the manufacturer could have designed and located the hanger in a manner which preserved its utility while eliminating the dangers from its use (Lopez v Precision Papers, 67 NY2d 871, supra; Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108, supra; Robinson v Reed-Prentice Div., supra, at 479). Thus, the traditional test of a defectively designed product was met. That the hanger actually involved in the accident was a replacement and not the original is not dispositive because in fabricating and installing a new part Commuter’s employees, as the jury found, did no more than perpetuate defendant’s bad design as defendant’s representatives foresaw they might.

The burden of plaintiffs accidental injuries should be placed on the manufacturer because it designed the defective product and placed it in the stream of commerce knowing that if the part broke it might be copied and replaced by the purchaser relying on the original design. Inasmuch as the defect was in the design, the manufacturer was the logical party in a position to discover the defect and correct it to avoid injury to the public. Placing the economic burden on the manufacturer under these circumstances does no more than induce it to design quality equipment at the outset and "discourage[s] misdesign rather than encourage[s] it” (Micallef v Miehle Co., 39 NY2d 376, 384, supra, quoting Palmer v Massey-Ferguson, 3 Wash App 508, 517; see also, Codling v Paglia, supra, at 341). Conversely, to insulate a manufacturer under such circumstances would allow it to escape liability for designing flimsy parts secure in the knowledge that once the part breaks and is replaced, it will no longer be liable.

The Appellate Division’s dismissal of plaintiff’s complaint was grounded on its conclusion that plaintiff’s claim was barred by the Robinson v Reed-Prentice Div. (supra) substantial modification doctrine. Finding that plaintiff presented a tenable claim, we note also that she established a prima facie case. Her expert testified that the replacement part appeared to have the same dangerous design as the original and photographs presented to the jury permitted them to compare the parts and reach a similar conclusion. Thus, there was a "valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury” (Cohen v Hallmark Cards, 45 NY2d 493, 499).

There remains the question of the proper remedial action.

The Appellate Division’s alternate conclusion that the verdict was against the weight of the evidence is a factual determination and, as such, beyond this court’s review powers (see, Cohen v Hallmark Cards, supra, at 498; see also, Tate v Colabello, 58 NY2d 84, 86; Cohen and Karger, Powers of the New York Court of Appeals § 148, at 588 [rev ed]; 1 Newman, NY Appellate Practice § 4.04, at 4-12.2). In view of our resolution of the legal issues presented to us, the proper remedy is a new trial (Cohen v Hallmark Cards, supra, at 498-499).

Accordingly, the order of the Appellate Division should be reversed, the complaint reinstated and a new trial granted.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order reversed, with costs, complaint reinstated, and a new trial granted.

       There was conflicting evidence on whether the hanger which injured plaintiffs hand was the original part made by defendant or was a replacement part made by Commuter’s employees. The jury found it was a replacement.


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    In the Matter of Mark E. Casse, Appellant, v New York State Racing and Wagering Board, Respondent.
    Argued November 13, 1987;
    decided December 17, 1987

      POINTS OF COUNSEL

      Herman E. Cooper for appellant.

      Robert Abrams, Attorney-General (Jane Breslin Jacobs and O. Peter Sherwood of counsel), for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

The "trainer responsibility rule” (9 NYCRR 4043.4) makes the trainer of a thoroughbred race horse liable for the impermissible presence of a restricted substance in the horse’s system unless the trainer can show by substantial evidence that he was, in fact, neither personally nor vicariously responsible. The question presented on this appeal is whether the imposition of this "strict responsibility” rule violates due process of law under either the Federal or State Constitution.

After an administrative hearing, respondent, the New York State Racing and Wagering Board, determined that petitioner, a trainer of thoroughbred race horses, was responsible for the presence of a restricted substance in the system of a horse which had been under his care prior to the start of a race. It suspended his trainer’s license for 60 days. The Appellate Division, upon transfer from Supreme Court, confirmed respondent’s determination, without opinion. On petitioner’s appeal to this court on constitutional grounds, we affirm for reasons that follow.

I

"Truly Double”, a horse trained by petitioner, competed in a "claiming race” at Aqueduct Race Track on January 9, 1984. Truly Double was not a winner but, because he was claimed, was tested for drugs after the race. The analyses of two urine samples revealed the presence of procaine, a local anesthetic and, in large doses, a central nervous system stimulant, which, by Board regulations, is specifically prohibited from use for seven days before a race as a protection to injured horses (9 NYCRR 4043.2 [e]). On February 2, 1984, the Board notified petitioner that his license was being suspended for 60 days, the suspension to be stayed pending a hearing to be conducted on March 7 and 8, 1985.

At that hearing, the Board’s inspector at Aqueduct Race Track testified that he collected two urine samples from Truly Double and that he had been with the horse at all times from its unsaddling by the trainer’s groom to the completion of the tests. Technicians at the Belmont Race Track field laboratory and at the main equine drug testing laboratory at Cornell University testified that the samples, which were tested at both laboratories, revealed the presence of procaine. Additionally, there was expert testimony that procaine can only be detected in a horse’s system for five days, even if administered in very large doses.

By way of defense, both petitioner and his groom took the stand. Petitioner’s groom testified that he had charge of Truly Double for two weeks prior to the race and had not injected the horse with any substance. Because he tended to other horses as well, however, he did not maintain a constant watch over Truly Double and, in fact, was absent during certain veterinary treatments. Moreover, he acknowledged that others had contact with the horse prior to posttime on the day of the race. Petitioner testified that he had not personally drugged Truly Double or permitted anyone else to do so. He admitted, however, that either he or his groom had had custody of the horse at all relevant times prior to the race, that he was uncertain of the various medications the horse received during the preceding week, and that, inasmuch as he had other separately stabled horses being watched by the groom at the same time, he had not maintained a constant 24-hour guard on Truly Double.

The Hearing Officer found that the drug could not have been administered to Truly Double after the race and that petitioner, as the horse’s trainer prior to the race, had responsibility for its care, custody and control at all relevant times. The Hearing Officer concluded, therefore, that petitioner should be held accountable under the trainer responsibility rule, and he recommenced that petitioner’s license be suspended for a period of 60 days. On August 13, 1985, respondent Board approved the findings and recommendation of the Hearing Officer. Petitioner then instituted this article 78 proceeding and, on consent of the Board, a stay of his license suspension was granted.

There is no dispute that petitioner has a property interest in his license of which he cannot be deprived without due process of law (see, Barry v Barchi, 443 US 55, 64; Bell v Burson, 402 US 535, 539). Nor is there any question that the administrative hearing and determination were procedurally adequate: petitioner was represented by counsel, he had the opportunity to present testimony and other evidence on his behalf and to cross-examine adverse witnesses, and there was no prehearing suspension of his license — indeed, the suspension was stayed not only pending the Board’s determination but, thereafter, pending the outcome of this appeal as well (see, Mathews v Eldridge, 424 US 319, 333; Armstrong v Manzo, 380 US 545, 552; cf., Barry v Barchi, supra, at 66). Petitioner’s only contentions are that the trainer responsibility rule violates due process and that respondent’s determination is not supported by evidence in the record.

II

The "trainer responsibility rule” (9 NYCRR 4043.4) provides: "A trainer shall be responsible at all times for the condition of all horses trained by him. No trainer shall start or permit a horse in his custody, care or control to be started if he knows, or he might have known or have cause to believe, that the horse has received any drug or other restricted substance that could result in a positive test. The trainer shall be held responsible for any positive test unless he can show by substantial evidence that neither he nor any employee nor agent was responsible for the administration of the drug or other restricted substance. Every trainer must guard each horse trained by him in such manner and for such period of time prior to racing the horse so as to prevent any person, whether or not employed by or connected with the owner or trainer, from administering any drug or other restricted substance to such horse contrary to this Part” (emphasis added).

The rule places strict responsibility upon the trainer to ensure that a horse in his care and custody does not receive any drug or other restricted substance within certain specified periods of time prior to a race. If a horse under the trainer’s care and custody tests positive for the impermissible presence of a drug, the trainer is deemed "responsible” and subject to penalty, including suspension of his license (9 NYCRR 4002.9 [a]). The trainer may be relieved of this responsibility only if he presents "substantial evidence” showing that neither he nor any of his employees or agents was in any way culpable. In sum, the rule obligates the trainer to ensure that his horse is drug-free prior to a race. In effect, it creates a presumption that the trainer has failed in this duty whenever his horse tests positive, but permits the trainer to rebut that presumption by coming forward with substantial evidence to the contrary (see, Wetzel v New York State Racing & Wagering Bd., 109 AD2d 1099). The validity of this rule depends upon whether the presumption it creates is rational, whether the burden thus placed on trainers is justified by legitimate State interests, and whether this imposition of strict responsibility is reasonably well calculated to promote those interests.

It has long been the rule, both State and Federal, that a rebuttable presumption involving the imposition of civil penalties, such as the one at issue here, is valid if there is a rational connection between the facts proven and the fact presumed, and there is a fair opportunity for the opposing party to make his defense (Board of Commrs. v Merchant, 103 NY 143, 148 [Earl, J.]; see also, Matter of Sigety v Leventhal, 42 NY2d 953, 955; Usery v Turner Elkhorn Min. Co., 428 US 1, 28; Tot v United States, 319 US 463, 467-468; see generally, McCormick, Evidence § 345 [3d ed]). The presumption contained in the trainer’s responsibility rule meets this test. The facts proven, (1) that petitioner was the horse’s prerace trainer and (2) that the horse was given a restricted drug within the proscribed time period prior to the race, are connected logically to the ultimate fact presumed: that petitioner is responsible. The connection upon which the presumption stands, and from which the inference of responsibility may fairly be drawn, is the obligation of the trainer, imposed by operation of the rules under which he is licensed, to oversee the condition of his horse at all times and to guard the horse, as necessary, to prevent the impermissible administering of any drug or other restricted substance for the required period prior to the race (see, Barchi v Sarafan, 436 F Supp 775, 784 [SD NY], mod on other grounds sub nom. Barry v Barchi, supra; cf., Cooney v American Horse Shows Assn., 495 F Supp 424, 431-432).

The burden imposed by this presumption upon the trainer’s private interest in his license is justified by the State interests sought to be protected by the trainer responsibility rule. Without question, this State has an important interest in assuring the fairness and integrity of horse racing, especially since horse racing is carried out under State auspices and is the only sport in which wagering is officially sanctioned. The State also has a significant interest in protecting competitors from participation in tainted horse races and safeguarding the wagering public from fraud. Additionally, the State has an interest in protecting horses from the dangers of racing under the effects of analgesics or stimulants (see, Matter of Tappis v New York State Racing & Wagering Bd., 36 NY2d 862, 864; Barry v Barchi, supra, at 64; cf., Hubel v West Va. Racing Commn., 513 F2d 240, 243-244 [4th Cir]; Sandstrom v California Horse Racing Bd., 31 Cal 2d 401, 189 P2d 17, 21, cert denied 335 US 814). These interests justify placing a high standard of responsibility on the trainer, the one individual who, by virtue of his care and control of a horse, is best able to prevent the administering of a restricted drug or other substance to the horse, or to know who has done so.

Moreover, the trainer responsibility rule is a practical and effective means of promoting these State interests — both in deterring violations and in enforcing sanctions. The imposition of strict responsibility compels trainers to exercise a high degree of vigilance in guarding their horses and to report any illicit use of drugs, medications or other restricted substances by other individuals having access to their horses. Additionally, the rebuttable presumption of responsibility facilitates the very difficult enforcement of the restrictions on the use of drugs and other substances in horse racing. Indeed, it would be virtually impossible to regulate the administering of drugs to race horses if the trainers, the individuals primarily responsible for the care and condition of their horses, could not be held accountable for the illicit drugging of their horses or for the failure either to safeguard their horses against such drugging or to identify the person actually at fault. It is not surprising, therefore, that trainer responsibility rules have been upheld, almost without exception, in other jurisdictions. This has been so where the rule at issue contained a rebut-table presumption such as that in this State (see, e.g., Harbour v Colorado State Racing Commn., 32 Col App 1, 505 P2d 22; see, discussion in Cooney v American Horse Shows Assn., supra), and even where the presumption was irrebuttable and the rule thus imposed "absolute responsibility” (see, e.g., Sandstrom v California Horse Racing Bd., supra; Division of PariMutuel Wagering v Caple, 362 So 2d 1350 [Fla]; O’Daniel v Ohio State Racing Commn., 37 Ohio St 2d 87, 307 NE2d 529; Hubel v West Va. Racing Commn., supra; but see, Brennan v Illinois Racing Bd., 42 Ill 2d 352, 247 NE2d 881).

The stringent standard of responsibility imposed by this State’s trainer responsibility rule, with its provision for the opportunity of the trainer to rebut his culpability, strikes a fair balance between the harshness of an absolute liability rule, on the one hand, and the considerable difficulty of proving the trainer’s personal culpability, on the other. As a measure reasonably calculated to protect the public and competitors from tainted horse racing, and the horses from injury, while at the same time avoiding the considerably more onerous burden of absolute responsibility on the trainer, the rule satisfies the requirements of due process of law under both the Federal and State Constitutions.

Finally, a review of the record shows that respondent’s determination was supported by substantial evidence. The inspector testified that he was with Truly Double from the time it was unsaddled by the groom until he collected the samples, thereby dispelling any question of whether the drug was administered to the horse after the race or whether anyone tampered with the samples. Moreover, there was expert testimony that the drug must have been administered within the five-day prerace period. Additionally, it cannot be said that petitioner offered substantial evidence to rebut his strict responsibility for the positive results of the drug tests. Neither petitioner nor his groom could explain the presence of the drug in Truly Double’s system, identify the medications given the horse during the week preceding the race, or certify that the horse was actually under constant watch during that period.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Judgment affirmed, with costs.

      . A claiming race is one in which bids may be submitted by parties interested in purchasing a horse at an established price up to 10 minutes before posttime. The bidder or claimant, or whoever is chosen by lottery where there is more than one, becomes the owner of the horse once the race has started. Further, a postrace drug test is performed after a claiming race and the claimant has the option to void his purchase if the test proves positive. (See, 9 NYCRR 4038.1, 4038.7, 4038.16, 4038.18.)

      . The different periods of time for particular drugs, medications and other substances are specified in 9 NYCRR 4043.2. That section provides, in part:
      "Drugs and medications are permitted to be used only in accordance with the following provisions * * *
      "(e) No other drugs or medications (including procaine) may be administered by any means within one week of the start of a racing program.”


text:
    Julius Ebanks, Respondent, v New York City Transit Authority, Appellant.
    Argued April 27, 1987;
    decided May 28, 1987
    APPEARANCES OF COUNSEL

      Steve S. Efron and William E. Rosa for appellant.

      Gary Lerner and Michael C. Modansky for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff — a securities clerk employed in downtown Manhattan — left for work on a rainy morning in March 1980, wearing a pair of soft rubber overshoes. Upon leaving the subway train at the Bowling Green Station, and in order to reach the street, he stepped onto an escalator owned, operated and maintained by defendant, the New York City Transit Authority. As the escalator ascended, plaintiff heard a rumbling sound and felt the step on which he stood vibrating. Somewhere between the bottom landing and the midpoint, his left foot had become caught in a gap between the escalator step and sidewall; he then looked down and noticed the gap, which he estimated was "a couple of inches.” Frightened and unable to dislodge his foot, plaintiff rode the escalator to the top, where he was thrown onto his left hip, suffering a fractured hip and related injuries.

In this action to recover for damages against the Transit Authority, plaintiff alleged that his injuries were the result of defendant’s negligent operation and maintenance of the escalator. At trial, in addition to plaintiff’s own testimony, an engineer testified that the clearance between the escalator steps and sidewalls must have exceeded the City’s building code and industry standards of three eighths of an inch, "otherwise the shoe couldn’t have gotten into that space.” In addition, the engineer said, the rumbling could not have happened "unless there was some defect in the driving apparatus of the escalator” and that this "could not happen if the escalator had been kept in the state of proper maintenance.” For defendant, a Transit Authority maintenance supervisor testified that some clearance between the escalator steps and sidewalls — up to one-quarter inch — is necessary to permit the steps to move freely. A two-inch gap could occur, he asserted, only "if somebody got something caught in it like a hand truck”. It could not happen through normal use; "it would have to be an act of vandalism.” Defendant further established that the escalator was maintained and inspected on three occasions during the week before the accident. Inspection of the escalator immediately after the accident revealed no gap.

Over defendant’s objection, the court charged the doctrine of res ipsa loquitur, instructing the jury that if it found that "there was a gap into which his shoe or foot became lodged * * * in the manner that he said, you may infer the defendant negligently maintained the escalator in question.” The jury returned a verdict of $100,000, apportioning the fault at 25% against plaintiff and 75% against defendant. The Appellate Division reversed and remanded for a new trial on the issue of damages, and otherwise affirmed the judgment, certifying to us the question whether its order was properly made. We now conclude that it was not, and answer the certified question in the negative.

Submission of a case on the theory of res ipsa loquitur is warranted only when the plaintiff can establish three elements: "(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” (Prosser, Torts § 39, at 218 [3d ed]; see, Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226.) As in Dermatossian, the second requirement — exclusive control — is critically lacking here. The proof did not adequately refute the possibility that the escalator — located in a subway station used by approximately 10,000 persons weekly — had been damaged by a member of the public either through an act of vandalism or, as defendant’s witness suggested, by permitting an object such as a hand truck to become caught in the space between the step and sidewall. Plaintiff did not establish that the likelihood of such occurrences was so reduced " 'that the greater probability lies at defendant’s door.’ ” (Id., at 227, citing 2 Harper and James, Torts § 19.7, at 1086.) We reject plaintiff’s contention that, in the circumstances, there is any meaningful distinction to be drawn between the grab handle of a City bus (in issue in Dermatossian) and the escalator steps of a City subway station. In both instances of extensive public contact, plaintiff failed to establish control by defendant "of sufficient exclusivity to fairly rule out the chance that [the defects were] caused by some agency other than defendant’s negligence.” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 228, supra.)

While res ipsa loquitur was improperly charged to the jury and the judgment must be set aside, there is proof of negligence in the record. A new trial is therefore warranted.

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

Order, insofar as appealed from, reversed, with costs, a new trial granted, and certified question answered in the negative in a memorandum.

         We thus do not consider defendant’s additional contentions that neither of the remaining two elements is satisfied.


text:
    The People of the State of New York, Respondent, v Alfred A. Higley, Appellant.
    Argued April 29, 1987;
    decided May 28, 1987

      APPEARANCES OF COUNSEL

      William M. Kunstler and Louis M. Klein for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, the judgment of conviction vacated and the indictment dismissed.

Defendant — a member of the Ulster County Legislature and President of Onteora Enterprises, Inc., a wholesale meat vendor — was the target of an investigation by the Ulster County Grand Jury concerning contracts between the county and M&D Provisions Distributing Company (M&D). M&D, a sole proprietorship owned by defendant’s sister, operated out of Onteora’s plant. At his own request, defendant, accompanied by his attorney, appeared to testify before the Grand Jury. Before defendant began testifying, in the presence of the Grand Jury the prosecutor told him the subject of the investigation and that he would be permitted to testify in response to the allegations, but only if he agreed to waive immunity. Defendant indicated that he had discussed the matter with his attorney; that he understood that any statements he made before the Grand Jury could be used against him if he were indicted; and that he was appearing of his own free will. The prosecutor thereupon informed the Grand Jury that defendant’s attorney had provided him with a waiver of immunity signed by defendant and notarized. At no time, however, did defendant swear before the Grand Jury that he had in fact executed the waiver or that he waived immunity. After his testimony, defendant was indicted for alleged violations of General Municipal Law §§ 801 and 803.

At trial, defendant sought dismissal of the indictment on the ground that his waiver of immunity did not comply with CPL 190.45 (2) and therefore his testimony before the Grand Jury rendered him immune from prosecution (CPL 190.40). That motion was denied. Defendant was subsequently convicted of two counts of violating General Municipal Law § 801 and the Appellate Division affirmed. We now reverse.

CPL 190.45 (2) provides that "[a] waiver of immunity is not effective unless and until it is sworn to before the grand jury conducting the proceeding in which the subscriber has been called as a witness.” Here, defendant never swore to his waiver of immunity before the Grand Jury; thus, pursuant to the unequivocal direction of CPL 190.45 (2), his waiver must be deemed ineffective. CPL 190.40 (2) (a) further provides that a witness who gives evidence in a Grand Jury proceeding receives immunity unless he "has effectively waived such immunity pursuant to section 190.45”. Because defendant’s waiver of immunity was ineffective, his subsequent testimony before the Grand Jury rendered him immune from prosecution for all acts or transactions that were the subject of his testimony (see, People v Chapman, 69 NY2d 497). The present indictment, therefore, must be dismissed (CPL 50.10 [1]).

In reaching this conclusion, we reject the People’s contention that they "substantially” complied with CPL 190.45 (2), and that a mere technical violation of the statute should not nullify defendant’s waiver of immunity. As we noted only recently in Chapman (supra, at 501-502), CPL 190.40 (2) (a), "the keystone of our modern immunity rules”, was enacted "to eliminate the confusing thicket of decisional law and overlapping legislative provisions that had evolved both before and after the enactment of the predecessor provision”. Where the Legislature has unambiguously required that a waiver of immunity be sworn to before the Grand Jury, and where the Legislature has unambiguously provided that a waiver is ineffective unless and until so sworn, it is not for the People to fashion a substitute for the procedure prescribed by statute.

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v Timothy Perry, Respondent.
    Argued May 29, 1987;
    decided June 30, 1987

      APPEARANCES OF COUNSEL

      Stephen R. Sirkin, District Attorney (Valerie Friedlander of counsel), for appellant.

      Richard W. Youngman for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (123 AD2d 492).

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


text:
    Julien J. Studley, Inc., Appellant, v New York News, Inc., et al., Respondents.
    Argued May 28, 1987;
    decided June 30, 1987

      APPEARANCES OF COUNSEL

      Alan E. Bandler for appellant.

      Michael B. Mukasey, Harold R. Tyler, Jr., and Blair Axel for respondents.
   OPINION OF THE COURT

Memorandum.

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

In its complaint seeking a commission, plaintiff — a real estate broker — alleged that it procured a buyer for certain property owned by defendants, that it advised defendants that such offer was subject to the commission, that the buyer was ready, willing and able to purchase the premises on the terms and conditions agreed to by defendants, and that it therefore had a right to recover the commission from defendants. In discovery and in affidavits responding to defendants’ motion for summary judgment, plaintiff described a series of telephone calls and meetings which it initiated in May 1983, culminating several months later in the termination of negotiations between defendants and plaintiff’s proposed buyer ("the Goodsteins”) and defendants’ sale of the property to another party. Plaintiff urges that there is at least a triable issue of material fact with respect to its employment as defendants’ agent for the sale of the property, giving rise to an implied contract. A divided Appellate Division granted summary judgment dismissing the complaint, concluding that there was no agreement to employ plaintiff as defendants’ agent, and that as a mere volunteer plaintiff had no right to a commission.

Central to plaintiff’s recovery of any brokerage commission from defendants, of course, is that it must plead and prove that it was employed by defendants. Any implication of employment of plaintiff as defendants’ agent in this transaction is explicitly negated by plaintiff’s own signed agreement with the Goodsteins — which it in no way disavows — and which begins: "We have acted as your agent in connection with your prospective acquisition of the above premises.” A contract cannot be implied in fact where there is an express contract covering the subject matter involved (Miller v Schloss, 218 NY 400, 406-407). Here, not only is there an express contract regarding plaintiffs employment as a broker with respect to the sale of the property, but also the contract reciting that plaintiff has "acted as [the buyer’s] agent” in the transaction negates plaintiffs present contention that it was in fact employed as the sellers’ agent.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Edith Ferreras, Appellant.
    Argued May 28, 1987;
    decided June 30, 1987

      APPEARANCES OF COUNSEL

      James B. Kobak, Jr., and Stuart J. Hendel for appellant.

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

Memorandum.

The September 15, 1986 order of the Appellate Division should be modified to the extent of reversing the affirmance of the March 21, 1986 order of Supreme Court, Queens County, denying defendant’s motion pursuant to CPL article 440 to vacate the judgment of conviction, and remitting the matter to Supreme Court, Queens County, for a hearing, and, as so modified, affirmed.

Defendant moved, pursuant to CPL article 440 to vacate her conviction of criminal possession of a controlled substance in the first degree, claiming she was denied her right to effective assistance of counsel because her trial counsel had a conflict of interest which precluded his providing effective assistance of counsel, because her trial counsel did not adequately advise her of the nature of the alleged conflict or her right to retain another attorney, and because her trial counsel’s performance during the trial accorded representation that did not comport with minimal constitutional standards. In support of her motion, defendant provided a personal affidavit which set forth facts which did not appear in the record on direct appeal from her conviction. Such nonrecord facts are material and if established could entitle defendant to the relief sought. Under these circumstances, the lower courts erred in denying the motion without a hearing (see, People v Jenkins, 68 NY2d 896; People v Satterfield, 66 NY2d 796).

Based on the foregoing, the appeal from the April 23, 1984 order of the Appellate Division should be dismissed as subsumed in, and reviewable on, the appeal from so much of the September 15, 1986 order of the Appellate Division as affirmed the June 28, 1984 judgment of Supreme Court, Queens County.

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

September 15, 1986 order of the Appellate Division modified and case remitted to Supreme Court, Queens County, for a hearing in accordance with the memorandum herein and, as so modified, affirmed. Appeal from the April 23, 1984 order of the Appellate Division dismissed.


text:
    Davis-Eckert, a Joint Venture, Respondent, v State of New York, Appellant.
    Argued May 27, 1987;
    decided June 30, 1987

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Richard J. Dorsey, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      George R. Rich for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Ann T. Mikoll at the Appellate Division (118 AD2d 375). Certified question answered in the negative.

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


text:
    In the Matter of Society of the New York Hospital, Appellant, v Alfred Del Vecchio et al., Constituting the Common Council of the City of White Plains, Respondents.
    Argued May 27, 1987;
    decided June 30, 1987

      APPEARANCES OF COUNSEL

      Richard J. Concannon, Chauncey L. Walker and Sarah L. Reid for appellant.

      Anthony J. Grant, Corporation Counsel (Mark P. Miller of counsel), for respondents.

      Stuart R. Shamberg and Kenneth J. Frank for Builders Institute of Westchester and the Mid-Hudson Region, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The certified question is not answered as unnecessary.

Petitioner’s 218-acre parcel is located in one of two noncontiguous parts making up a R 1-12.5 zoning district in the City of White Plains. In this zone only one-family houses are permitted. Petitioner’s parcel does not comprise 50% of the total R 1-12.5 district or of either of the parts. When petitioner filed an application requesting that its property be rezoned as "planned development” which would permit a variety of commercial and residential uses, respondents adopted a resolution declining to consider the application formally. In this CPLR article 78 proceeding brought to compel respondents to act formally upon the application, the question is whether under General City Law § 83 such formal action is required. General City Law § 83 provides, in pertinent part: "The common council may from time to time on its own motion or on petition, after public notice and hearing, which hearing may be held by the council or by a committee of the council or by the planning board, amend, supplement, repeal or change the regulations and districts established under any ordinance adopted pursuant to paragraphs twenty-four and twenty-five of section twenty of this chapter. Wherever the owners of fifty per centum or more of the frontage in any district or part thereof shall present a petition duly signed and acknowledged to the common council, requesting an amendment, supplement, change or repeal of the regulations prescribed for such district or part thereof, it shall be the duty of the council to vote upon said petition within ninety days after filing of the same by the petitioners with the secretary of the council.” (Emphasis added.)

Petitioner concedes that it does not own 50% of the frontage of the R 1-12.5 district or of either noncontiguous part, but argues that this is not a requirement for the application of General City Law § 83. It maintains that the language in General City Law § 83 — that "the owners of fifty per centum or more of the frontage in any district or part thereof” (emphasis added) — means that ownership of 50% of the parcel to be rezoned is sufficient for the purpose of invoking the section. Because it owns 100% of the 218-acre parcel for which the zoning change is sought, petitioner claims that the Council must formally vote on its application.

We disagree. The first sentence of General City Law § 83 vests in the Common Council broad legislative power, in its discretion, to amend, supplement, repeal, or change its zoning regulations either on its own motion or on petition. Under petitioner’s interpretation, an owner of a parcel of any size who desires to have that parcel rezoned could compel the Common Council to consider and vote upon its request since it would necessarily have 100% of the frontage of the parcel. This construction of the statute would render the first sentence of the section ineffective and, by requiring the Council to consider and vote on every application, frustrate the statutory purpose of empowering the Council to set its agenda and determine its own legislative actions. Such a result would offend the general rule of construction that all parts of a statute must be harmonized with each other and that every part must, if possible, be given meaning (see, McKinney’s Cons Law of NY, Book 1, Statutes §§ 97, 98). Moreover, petitioner’s argument, if followed, would lead to unreasonable and absurd consequences and, for that additional reason, should be rejected (see, McKinney’s Statutes §§ 141, 145). The proper interpretation of the statute is that the Common Council must consider and vote on a petition by owners of 50% of the frontage of the entire district or of the portion of the district in which the property is located. Petitioner’s remaining contention is without merit.

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

Order affirmed, etc.


text:
    In the Matter of Mildred Krieger, Respondent, v James A. Krauskopf, as Commissioner of the New York City Department of Social Services, Respondent, and Cesar A. Perales, as Commissioner of the New York State Department of Social Services, Appellant.
    Argued May 29, 1987;
    decided June 30, 1987

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Maryellen Weinberg, O. Peter Sherwood and Lawrence S. Kahn of counsel), for appellant.

      Lester Helfman, Joan Mangones, John E. Kirklin and Nancy Morawetz for Mildred Krieger, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (121 AD2d 448).

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


text:
    The People of the State of New York, Respondent, v Raul Ramos, Appellant.
    Argued May 27, 1987;
    decided June 30, 1987

      APPEARANCES OF COUNSEL

      Helen A. Marino and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Marianne Karas and Michael J. Eng of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted and tried on charges of murder, attempted murder and possession of a weapon stemming from an incident in which two men were shot, one of them fatally. At trial defendant raised justification, claiming that he came to the defense of another and joined an altercation upon observing two brothers attacking that other person with a stick. Defendant claimed the two brothers then came at him, one swinging a bat and the other wielding a cleaver.

On cross-examination, the prosecution impeached defendant’s testimony by introducing into evidence a portion of defendant’s postarrest statement to the police in which he stated that the two brothers were striking the other man with their bare hands and not with a stick.

Defendant argues that it was reversible error for the Trial Judge, over objection, to refuse on redirect to admit his entire statement after a portion was used on cross-examination because it could have left the jury with the erroneous impression that he never told the police that the two brothers were armed as they approached him.

The issue of whether the brothers used a stick or their bare hands when attacking the other person is distinct from the question of whether the two were armed when they approached the defendant. The portion of the postarrest statement used on cross-examination was properly admitted as a prior inconsistent statement only to impeach that portion of defendant’s trial testimony concerning the attack on the third person. Had the defendant advanced a proper foundation, other relevant portions of the statement might have been properly admitted on the unrelated issue of whether the two men were armed when they approached defendant. This was not done. Instead, when asked by the Trial Judge for the purpose of admitting the entire statement, defendant argued only that the statement was "relevant”. Relevance alone is an insufficient basis for admitting a prior consistent statement, and the mere fact that a portion of a statement is raised by the prosecutor to impeach defendant on a particular issue does not entitle defendant to bolster his own credibility by introducing other portions containing prior consistent statements on unrelated matters.

We have examined defendant’s other contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Francis X. Smith.
    Decided July 1, 1987
   OPINION OF THE COURT

On the court’s own motion, it is determined, on consideration of continuation of this court’s November 11, 1986 suspension, with pay, of Honorable Francis X. Smith from his office of Justice of the Supreme Court, Eleventh Judicial District, that the suspension shall be continued, without pay, effective immediately.

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


text:
    333 East 53rd Street Associates, Appellant, v Helen Mann, Respondent.
    Argued June 2, 1987;
    decided July 2, 1987

      APPEARANCES OF COUNSEL

      Jeffrey R. Metz for appellant.

      Donald M. Nussbaum for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (121 AD2d 289). We note that the order of adoption is not subject to challenge by plaintiff in a collateral proceeding (Domestic Relations Law § HO).

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


text:
    The People of the State of New York, Respondent, v Robert Rabbit, Appellant.
    Argued June 2, 1987;
    decided July 2, 1987

      APPEARANCES OF COUNSEL

      J. Kenneth O’Connor and Thomas T. Heney for appellant.

      Elizabeth Holtzman, District Attorney (Michael Gore and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (123 AD2d 722).

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


text:
    Grow Tunneling Corporation et al., a Joint Venture Known as Richmond Constructors, Respondent, v City of New York, Appellant.
    Decided July 2, 1987

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (John Hogrogian of counsel), for appellant.

      Tony Berman for respondent.
   OPINION OF THE COURT

Memorandum.

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

The City of New York (City) urges that article 32 of its standard-form construction contract contains an arbitration or alternative dispute resolution clause making the decisions of the appropriate Commissioner final and binding, and that the Supreme Court’s charge to the jury was erroneous requiring a new trial. This court has recently decided two cases against the City on the precise contractual provision in issue here (Naclerio Contr. Co. v City of New York, 69 NY2d 794, affg 116 AD2d 463; Lovisa Constr. Co. v City of New York, 69 NY2d 801, affg 116 AD2d 1047).

The jury charge on the whole was substantially correct and the City was not prejudiced by any minor error in the court’s instructions (see, CPLR 2002; Danielson v Morse Dry Dock & Repair Co., 235 NY 439, 444, cert denied 262 US 756; Corrigan v Bobbs-Merrill Co., 228 NY 58, 72-73).

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

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


text:
    In the Matter of Ronald R. Benjamin, an Attorney, Appellant. Committee on Professional Standards, Third Judicial Department, Respondent.
    Submitted May 26, 1987;
    decided July 2, 1987
   Motion for leave to appeal denied. Motion for a stay dismissed as academic. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Stanley C., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted May 18, 1987;
    decided July 2, 1987
   Motion to dismiss appeal granted and appeal dismissed, without costs, for mootness.


text:
    Gerta C. Conway et al., Respondents, v Leonard Davis et al., Respondents. William Leighton, Intervenor-Appellant.
    Submitted May 18, 1987;
    decided July 2, 1987
   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 (see, Cohen and Karger, Powers of the New York Court of Appeals § 46 [b], at 193).

Chief Judge Wachtler taking no part.


text:
    Eleanor Cuffy et al., Respondents, v City of New York, Appellant.
    Submitted May 18, 1987;
    decided July 2, 1987
   Motion to amend remittitur by deleting provision for costs dismissed, with $20 costs, upon the ground that it is untimely (22 NYCRR 500.11 [g] [3]). [See, 69 NY2d 255.]


text:
    In the Matter of Constance G., Respondent, v Herbert S. (Herbert L.), Appellant.
    Submitted May 11, 1987;
    decided July 2, 1987
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of JVC Tavern Corp., Doing Business as The Back Door, Respondent, v New York State Liquor Authority, Appellant.
    Submitted June 30, 1987;
    decided July 2, 1987
   Motion, deemed one for an order vacating the statutory stay, granted and statutory stay vacated (see, CPLR 5519 [a] [1]; [c]).


text:
    Lauraine Murphy Manhasset, Inc., Respondent, v GDH Restaurant, Inc., Appellant.
    Submitted May 18, 1987;
    decided July 2, 1987
   Appellant’s application to file late submission in opposition to motion to dismiss appeal granted. Motion to dismiss appeal granted and appeal dismissed, with costs, and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Michael Librie, Appellant.
    Submitted June 22, 1987;
    decided July 2, 1987
   On the court’s own motion, appeal dismissed upon the ground that the order appealed from was made in a criminal proceeding and it does not lie as of right under the Criminal Procedure Law (see, NY Const, art VI, § 3 [b]; CPL 450.90). Motion for a stay dismissed upon the ground that this court has no jurisdiction to entertain it. An application for that relief must be made to the Justice of the Appellate Division to whom the application for permission to appeal has been made (CPL 460.60).


text:
    Richard G. Mance, Appellant, v Robert N. Mance et al., Respondents.
    Submitted May 18, 1987;
    decided July 2, 1987
   Motion insofar as it seeks leave to appeal from that part of the Appellate Division order which denied plaintiff’s motion to amend his complaint dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal otherwise denied.


text:
    In the Matter of Meadowdale Associates, Appellant, v Planning Board of the Town of Colonie, Respondent.
    Submitted June 29, 1987;
    decided July 2, 1987
   Motion for leave to appeal dismissed upon the ground that petitioner is not a party aggrieved by the order of the Appellate Division which granted petitioner relief in accordance with its request for alternative relief (CPLR 5511). Cross motion for stay pending appeal dismissed as academic.


text:
    Melinda Merrill, an Infant, by Her Mother and Natural Guardian, Frances Merrill, et al., Respondents, v Albany Medical Center Hospital et al., Defendants, and Martin E. McKneally, Appellant.
    Submitted May 18, 1987;
    decided July 2, 1987
   Motion to dismiss appeal denied.


text:
    State of New York, Respondent, v Travelers Indemnity Company of Rhode Island, Appellant.
    Submitted May 18, 1987;
    decided July 2, 1987
   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 it is not a nonfinal order in a proceeding within the meaning of CPLR 5602 (a) (2).


text:
    Leonard Tabachnik, Appellant, v Joseph S. Murphy et al., Respondents. (And a Related Proceeding.)
    Submitted May 18, 1987;
    decided July 2, 1987
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie (CPLR 5601).

Judge Titone taking no part.


text:
    The People of the State of New York, Appellant, v Velton Bender, Respondent.
    Submitted May 18, 1987;
    decided July 2, 1987
   Motion by the People to extend the time within which to make a CPL 460.20 application dismissed upon the ground that such relief is not authorized by CPL 460.30.


text:
    The People of the State of New York, Appellant, v Joe Goggans and Charlie Carson, Respondents.
    Submitted June 8, 1987;
    decided July 2, 1987
   Motion to vacate dismissal of appeal denied. [See, 69 NY2d 1000],


text:
    The People of the State of New York, Appellant, v Thessaloniki Angelakos, Respondent.
    Argued May 29, 1987;
    decided July 7, 1987

      APPEARANCES OF COUNSEL

      Edward J. Kuriansky, Deputy Attorney-General (Donald H. Zuckerman and Bonnie H. Stein of counsel), for appellant.

      Peter Preiser for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed, defendant’s motion to vacate the judgment of conviction denied and the judgment of conviction reinstated.

Defendant, a physician, entered into a fee-splitting arrangement with her landlord in which she agreed to pay the landlord a percentage of her earnings. As a result, she was charged with and pleaded guilty to violating the Public Health Law (Public Health Law §§ 12-b, 4708; see also, 10 NYCRR 83.12 [a]). A year later she brought this proceeding pursuant to CPL 440.10 (1) (h) to vacate her guilty plea, contending that her plea allocution had been defective and her plea involuntary.

During allocution, defendant acknowledged that she had read the misdemeanor complaint charging her with "wilful” violation of the Public Health Law and admitted entering into a fee-splitting arrangement with her landlord. The court informed her of the rights waived upon pleading guilty and she responded that she desired to waive such rights. The court then asked for comments regarding sentencing. Defendant’s attorney urged that the court recognize in sentencing defendant that she had not known of the prohibition against fee-splitting. Reiterating her lawyer’s statement, defendant also advised the court that she was not "aware that [fee splitting] was illegal.” In response, the trial court indicated that "criminal intent” was not an element of the charged crime and imposed a $2,000 fine.

As a result of administrative proceedings completed four months after she pleaded guilty to the criminal charge, defendant was permanently disqualified from participating in the Medicaid reimbursement program based upon the finding that she "wilfully” violated the Public Health Law. Eight months after the administrative ruling (one year after she pleaded guilty), defendant instituted this proceeding in Criminal Court seeking to vacate her conviction. Defendant alleged that "wilful violation of health laws” is a specific intent crime, that her statements at sentencing revealed that she lacked the requisite intent, and that the court had been obliged to inquire further about defendant’s mental state. At the trial court she urged only that her plea was involuntary. She did not request a hearing. Criminal Court granted defendant’s motion and vacated the judgment. The Appellate Term affirmed.

Considering first whether the alleged involuntariness of defendant’s plea was reviewable by way of a CPL article 440 motion, we conclude it was not. In People v Cooks (67 NY2d 100, 104), we held that "[w]hen, as will usually be the case, sufficient facts appear on the record to permit the question to be reviewed, sufficiency of the plea allocution can be reviewed only by direct appeal” (see also, CPL 440.10 [2] [b]). The courts below indicated that defendant’s conviction had to be vacated because an allocution "error” demonstrating the involuntariness of defendant’s plea was apparent "on the face of the record” but, as Cooks holds, if error was apparent on the record, it had to be raised by direct appeal. A posttrial motion to vacate a plea is only warranted when the error is not apparent from the record.

On appeal, defendant urges a further ground for relief: that her conviction should be vacated because the counsel who represented her at the plea proceeding was ineffective. Unlike the purported allocution error, an ineffective assistance of counsel claim can be raised in a collateral attack upon the judgment of conviction (see, People v Love, 57 NY2d 998; People v Brown, 45 NY2d 852). Moreover, although the issue was not considered by the courts below, we may consider it, and in so doing we must review the record (see, People v Jones, 55 NY2d 771, 773). We find no merit to the claim, however, because it is clear from the record that defendant sought the result she received and that, objectively evaluated, defendant received effective representation.

The record demonstrates that defendant’s primary concern, before charges were filed, was to avoid multiple criminal charges and a possible jail sentence. Through defense counsel’s negotiations these concerns were satisfied; defendant avoided a jail sentence and several charges under investigation — charges such as offering false instruments for filing, falsification of business records, and additional charges of unlawful fee splitting — were dropped. Her satisfaction with this bargain is apparent from her conduct in pleading to a complaint, which she acknowledged to the court she had read, and which clearly indicated that she was charged with a wilful act, and by the fact that after she was advised during the subsequent administrative proceedings that the charge involved wilful conduct, she still delayed instituting this proceeding for eight months. Finally, consistent with published decisions on the subject, counsel could have advised defendant to plead guilty believing that specific intent was not an element of the charged crime and, given this state of law, the contested plea strategy might well have been pursued by a "reasonably competent attorney” (see, People v Satterfield, 66 NY2d 796, 799). Based upon this record, defendant received adequate representation.

We have reviewed defendant’s remaining contentions and find them without merit.

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

Order reversed, etc.

      . While the ineffective assistance of counsel claim was not argued below, defendant’s present counsel acknowledges that the record before us is complete with respect to the issue because a hearing on the claim is not mandatory and the record contains an affidavit from defendant’s allegedly ineffective counsel which "is completely devoted to demonstrating that he failed to apprise defendant of the crime to which she pled.”

      . See, People v Coe, 131 Misc 2d 807; People v Flushing Hosp. & Med. Center, 122 Misc 2d 260. We do not decide in the context of this case whether Public Health Law § 12-b is a general or specific intent crime.


text:
    State of New York ex rel. Robert O. Lehman, on Behalf of Jason C. Lehman, Appellant, v Cynthia H. Lehman, Respondent. Robert O. Lehman, Appellant, v Sirgay Sanger, Respondent.
    Decided July 7, 1987
    APPEARANCES OF COUNSEL

      Vivienne Garfinkle for appellant.

      Peter J. Unger for Sirgay Sanger, respondent.
   OPINION OF THE COURT

Memorandum.

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

Dr. Sirgay Sanger, a psychiatrist, applied to Supreme Court for compensation of $11,650, in connection with services rendered in a habeas corpus proceeding for interim custody or unsupervised visitation with a child. The trial court found that Dr. Sanger, whom it had appointed to conduct evaluations of both parties and their child, was of only limited assistance to the court because he had "abandoned his role as a neutral scientific arm of the court and became the dedicated partisan of the mother”.

The court in its discretion fixed Dr. Sanger’s fee at $5,000 which petitioner was directed to pay. The Appellate Division affirmed by a divided court, the dissenters concluding that whenever a court-appointed expert is found to have abandoned his role as a neutral scientific arm of the court, as a matter of law he forfeits all entitlement to a fee.

We conclude that because, in these circumstances, the Appellate Division affirmance of the award of expert witness fees was not an abuse of discretion as a matter of law, the issue is beyond our review (see, O’Brien v O’Brien, 66 NY2d 576, 590).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa 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:
    Edward Solomon et al., Respondents, et al., Plaintiffs, v City of New York, Defendant and Third-Party Plaintiff-Appellant, et al., Defendants. La Crosse Construction Corp., Third-Party Defendant-Respondent, et al., Third-Party Defendants. (And Another Action.)
    Argued May 27, 1987;
    decided July 7, 1987

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Helen P. Brown, June A. Witterschein and Stephen J. McGrath of counsel), for appellant.

      Irwin M. Echtman and Bruce W. Hesselbach for La Crosse Construction Corp., third-party defendant-respondent.

      Scott N. Singer and Melvin Sacks for Edward Solomon and another, respondents.

      Ralph Mancuso and another, respondents, precluded.
   OPINION OF THE COURT

Order, insofar as appealed from, affirmed, with costs, for reasons stated in so much of the memorandum at the Appellate Division as concluded that the trial court erred in granting judgment to the city on its third-party complaint against La Crosse for contractual indemnification (111 AD2d 383, 387-388).

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


text:
    Charlotte K. Scheer, Respondent, v Daniel H. Koubek, Appellant.
    Decided July 7, 1987

      APPEARANCES OF COUNSEL

      James A. Lombardo for appellant.

      Christine M. Galvin for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff has failed to make out her prima facie case of "serious injury” by "significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). Plaintiff’s proof that she suffered a soft tissue injury, described by her own expert as "mild,” and which, at the time of trial, resulted in no restriction of plaintiff’s mobility, is not a "serious injury” under the No-Fault Insurance Law. We reject the holding of the majority of the Third Department that under these circumstances, pain may form the basis of "serious injury”. To so hold would undercut the policy behind the No-Fault insurance scheme to reduce the number of automobile personal injury accident cases litigated in the courts and frustrate the Legislature’s attempt to put an objective verbal definition of serious injury (Licari v Elliot, 57 NY2d 230, 236, 239; see, Thrall v City of Syracuse, 96 AD2d 715, revd on dissenting opn below 60 NY2d 950, rearg denied 61 NY2d 905). The subjective quality of plaintiff’s transitory pain does not fall within the objective verbal definition of serious injury as contemplated by the No-Fault Insurance Law (Licari v Elliot, 57 NY2d, at 239, supra).

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

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


text:
    In the Matter of the Claim of Marianne C. Martin, Claimant. Troy Publishing Company, Inc., Doing Business as The Times Record, Respondent; Lillian Roberts, as Commissioner of Labor, Appellant.
    Decided July 7, 1987

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (O. Peter Sherwood and Rochelle M. Baron of counsel), for appellant.

      Jon C. Flinker and Richard A. Levin for Troy Publishing Company, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be reversed, with costs, and the case remitted to that court with direction to remand to the Unemployment Insurance Appeal Board for further proceedings in accordance with Matter of Field Delivery Serv. (Roberts) (66 NY2d 516) and this memorandum.

In Field Delivery this court held that: "absent an explanation by the agency, an administrative agency decision which, on essentially the same facts as underlaid a prior agency determination, reaches a conclusion contrary to the prior determination is arbitrary and capricious” (id., at 518 [emphasis added]). Here, the Board failed to distinguish or explain its departure from its prior determination in Matter of Di Martino (Buffalo Courier Express Co. — Ross) (59 NY2d 638), a case in which the Board found an employer-employee relationship on essentially the same facts as presented by this case. Therefore, its determination is arbitrary and capricious and should have been annulled by the Appellate Division on appeal. The Appellate Division’s after-the-fact rationalization of the Board’s determination does not satisfy the requirements of Field Delivery.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the matter remitted to the Appellate Division, Third Department, with directions to remand to the Unemployment Insurance Appeal Board for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Daniel M. Flynn, Appellant, v Kenneth D. Molloy, as Justice of the Supreme Court of the State of New York, Respondent.
    Submitted May 26, 1987;
    decided July 7, 1987
   Motion to vacate April 14, 1987 order of dismissal denied. [See, 69 NY2d 947.]

Chief Judge Wachtler taking no part.


text:
    In the Matter of the Arbitration between Ellsworth Pendleton, Appellant, and New York State Department of Correctional Services, Respondent.
    Decided July 7, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the unanimous order of the Appellate Division absent direct involvement of a substantial constitutional question (CPLR 5601).


text:
    The People of the State of New York, Respondent, v Richard J. Roberts, Appellant.
    Argued May 27, 1987;
    decided July 9, 1987

      APPEARANCES OF COUNSEL

      Peter Henner for appellant.

      Sol Greenberg, District Attorney (Paul A. Clyne of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The People concede that the trial court erred in permitting the prosecutor to question Edgington repeatedly concerning the identity of his accomplice after the witness had indicated his refusal to answer such questions. The People claim, however, that the error was harmless.

Under the circumstances of this case Edgington’s refusal to answer the prosecutor’s questions could only have led the jury to conclude that the defendant was the accomplice (People v Pollock, 21 NY2d 206). Thus Edgington’s silence served to identify the defendant but denied him his right of confrontation on the primary factual issue at the trial. This error cannot be said to be harmless particularly in light of the number of times the prosecutor asked Edgington for the accomplice’s name in the presence of the jury.

We have considered the defendant’s other contentions but have found that they lack merit.

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

Order reversed, etc.


text:
    Susan D’Andrea, Appellant, v Long Island Rail Road Company et al., Respondents.
    Argued June 2,1987;
    decided July 9, 1987

      APPEARANCES OF COUNSEL

      Debra Berley and Ralph Berley for appellant.

      Franklin W Kronenberg and Thomas M. Taranto for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Lawrence J. Bracken at the Appellate Division (117 AD2d 10).

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


text:
    The People of the State of New York, Respondent, v Kevin Paulin, Appellant.
    Decided July 9, 1987

      APPEARANCES OF COUNSEL

      Barry D. Leiwant and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, defendant’s conviction of rape in the first degree vacated, and a new trial ordered.

The trial court erred in refusing to give a missing witness charge addressing the inference that could be drawn from the People’s failure to call complainant’s common-law husband to testify concerning her physical condition, as observed by him, when she returned home the morning after the alleged rape.

The proponent of a missing witness charge must make a prima facie showing that, among other things, the uncalled witness is knowledgeable about a material issue as to which evidence is already before the jury (see, People v Gonzalez, 68 NY2d 424, 427). In this case, defendant admitted that he had intercourse with complainant but claimed the intercourse was consensual. His claim was supported by significant differences in the testimony concerning the nature and scope of complainant’s injuries as observed by a witness seeing her immediately after the incident with defendant and as observed by Police Officer Reilly as he saw her several hours later. A friend of complainant’s, to whose home she purportedly fled immediately after the alleged incident, testified that complainant arrived at her home "high” and excited, and talked about having had sex with defendant. This witness further stated that she observed that complainant’s lip was swollen, the buttons of her blouse were gone, and her pants zipper was broken — all of which can be consistent with consensual sexual relations. This description varied markedly from that of Officer Reilly, however, who noted that when he interviewed complainant the next day her right eye was swollen, bloodshot and half closed, her left shoulder was bruised, and her lip and cheek swollen. Thus, it appeared complainant’s husband was knowledgeable about a material issue in the case: whether the physical injuries sustained by complainant, as observed by Officer Reilly many hours after the alleged rape, were also observed by him when complainant returned home before reporting the crime. Additionally, complainant’s friend recounted that complainant was afraid to let her husband see her in her present condition, and that complainant had expressed fear of her husband in the past. Moreover, complainant conceded on cross-examination that her husband did not want her to associate with defendant and his family, was angry with her when she returned home from a gathering at his apartment and insisted that she file charges against defendant. While corroboration is no longer required in prosecutions for rape, here, because of the conflict in the testimony and the impeachment of the complainant, the husband’s evidence was material and could confirm the People’s evidence of forcible compulsion (see, Penal Law § 130.35 [rape in the first degree]). Accordingly, defense counsel was entitled to comment during summation on the People’s failure to call him as a witness and to an appropriate charge from the court on his absence (see, People v Wright, 41 NY2d 172, 176).

The People contend they could not be penalized for failing to call complainant’s husband because the evidence was cumulative. Having failed to argue that issue to the trial court, however, the People may not raise it for the first time on appeal (see, People v Gonzalez, 68 NY2d 424, 430, supra).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, conviction vacated and a new trial ordered in a memorandum.


text:
    The People of the State of New York, Respondent, v Terrance Cargill, Appellant.
    Decided July 9, 1987

      APPEARANCES OF COUNSEL

      Michelle Fox and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (Janet M. Berk of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

CPL 270.35 commands in pertinent part that "[i]f at any time after the trial jury has been sworn and before the rendition of its verdict * * * the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case * * * the court must discharge such juror.” In People v Buford (69 NY2d 290), we distinguished between the disqualification of prospective and sworn jurors and held that the standard for excusing a sworn juror as "grossly unqualified” within the meaning of CPL 270.35 is "satisfied only 'when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict’ ” (People v Buford, 69 NY2d 290, 298, supra, quoting People v West, 92 AD2d 620, 622 [Mahoney, P. J., dissenting], revd on dissenting opn below 62 NY2d 708). In concluding that a sworn juror is "grossly unqualified”, the trial court may not speculate as to the likelihood of partiality, but rather, must be convinced, after a probing and tactful inquiry, that the sworn juror will be unable to deliberate fairly and render an impartial verdict (People v Buford, 69 NY2d 290, 299, supra).

In discharging the sworn juror over defendant’s objection, the lower courts here did not apply the correct standard as it has been articulated in Buford, and therefore defendant’s conviction must be reversed and a new trial ordered.

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

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


text:
    William J. Addesso, Respondent, v David Shemtob et al., Appellants.
    Decided July 9, 1987

      APPEARANCES OF COUNSEL

      Herman S. Rosen for appellants.

      Sally Weinraub for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced this action for specific performance of a contract for sale of certain real estate by service of summons and complaint. Before answering, defendants moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action. Within 20 days of service of his original complaint, plaintiff served defendants with an amended complaint (CPLR 3025 [a]). In their answer to the amended complaint, defendants asserted as an affirmative defense that the court lacked personal jurisdiction over them (CPLR 3211 [a] [8]) alleging that the summons and the original complaint were not properly served. On plaintiff’s motion for summary judgment, Supreme Court held that under CPLR 3211 (e) defendants had waived the defense of lack of personal jurisdiction because they had not raised the defense in their earlier CPLR 3211 motion. The Appellate Division unanimously affirmed.

CPLR 3211 (e) provides, in pertinent part, that the defense of lack of personal jurisdiction "is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection”. There is no reason to depart from the statute’s plain language even though the jurisdictional defect was asserted in a pleading made as of right in response to a complaint amended as of right by plaintiff. The basis for the objection of lack of personal jurisdiction — improper service of the summons and the original complaint — should have been made in the earlier CPLR 3211 (a) motion to dismiss.

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

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


text:
    In the Matter of the Claim of Peggy Bennett, Appellant. Urban Resource Institute, Respondent; Lillian Roberts, as Commissioner of Labor, Respondent.
    Submitted June 1, 1987;
    decided July 9, 1987
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of the Claim of James J. Hammarth, Appellant. Lillian Roberts, as Commissioner of Labor, Respondent.
    Decided July 9, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the unanimous order of the Appellate Division absent direct involvement of a substantial constitutional question, and on the further ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of George Sassower, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted June 15, 1987;
    decided July 9, 1987
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for summary reversal, etc., dismissed as academic.

Judge Bellacosa taking no part.


text:
    In the Matter of Sylvester Griffith, Respondent, v Angelo J. Aponte, as Commissioner of the New York City Department of Consumer Affairs, Appellant.
    Submitted June 22, 1987;
    decided July 9, 1987
   Motion to vacate June 11, 1987 order of dismissal denied with $20 costs of motion. [See, 70 NY2d 641.]


text:
    The People of the State of New York, Respondent, v Richard Caban, Appellant.
    Argued April 24, 1987;
    decided June 2, 1987

      APPEARANCES OF COUNSEL

      Richard A. Greenberg for appellant.

      Elizabeth Holtzman, District Attorney (Ann Bordley and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

While defendant’s trial was in progress, the Presiding Judge reviewed the Grand Jury minutes and discovered for the first time that defense counsel had represented Joaquin Lopez during the Grand Jury inquiry into the incident for which defendant was on trial. Lopez had been a target of the Grand Jury’s inquiry, but he was not ultimately indicted. Upon learning of counsel’s prior representation of Lopez, the trial court questioned him about the possible conflict of interest, noting that Lopez had been on counsel’s list of potential defense witnesses and that the court itself considered Lopez’s Grand Jury testimony to be Brady material helpful to defendant’s case. In response, counsel agreed that a potential conflict of interest existed and that the conflict "would be perhaps one of the reasons” for not calling Lopez as a defense witness. However, counsel also stated that he had other reasons for not calling Lopez and that, in any event, he had discussed the potential conflict with defendant, who was willing to waive it.

The court then conducted a lengthy discussion with defendant, advising him specifically that Lopez’s testimony could be very helpful in establishing an intoxication or justification defense, that his present attorney might be handicapped in eliciting all of the necessary facts because of his prior representation of Lopez, that his attorney might even refrain entirely from calling Lopez because of the possible conflict and that defendant might be "better off’ with another attorney who was not similarly restricted. Defendant told the court that he understood these concerns but nonetheless wished to waive any potential conflict and continue with his present attorney.

Defendant waived his right to conflict-free representation and the trial court’s inquiry was sufficiently searching to assure that his waiver was informed and voluntary (see, People v Lloyd, 51 NY2d 107). Indeed, on this appeal, defendant does not contest the thoroughness of the court’s inquiry, but instead contends that the trial court should have afforded him an opportunity to consult with independent counsel before deciding whether to waive his attorney’s potential conflict. However, just as "there is no prescribed * * * catechism that the court must follow” in ascertaining a defendant’s understanding of his choices (People v Lloyd, 51 NY2d 107, 112, supra), there is no per se rule requiring consultation with independent counsel. While it is true that the advice of the conflict-impaired attorney is not alone sufficient to ensure the truly informed choice that the law requires, we have consistently regarded a careful inquiry by the court to be an adequately reliable and effective safeguard. We see no need to add an additional layer of mandatory inquiry or consultation.

We have examined defendant’s remaining contentions and deem them to be without merit.

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

Order affirmed in a memorandum.

      . The court specifically drew counsel’s attention to the continuing obligation to preserve a client’s or former client’s confidences and secrets.

      . The sufficiency of the trial court’s inquiry to assure an intelligent and voluntary waiver (see, People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307) is a question of law, not a "mixed question of law and fact.” Consequently, we have the power to review that question independently, and we reject the People’s present suggestion that we are bound by the "findings” of the courts below (see also, People v Mattison, 67 NY2d 462, 470, n 4).


author: Titone, J.

text:
    Carmen Martinez et al., Appellants, v Long Island Jewish Hillside Medical Center et al., Respondents, et al., Defendant.
    Argued April 28, 1987;
    decided June 9, 1987

      APPEARANCES OF COUNSEL

      Malachy J. Duffy for appellants.

      Ignatius John Melito and Thomas R. Newman for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division, Second Department, for consideration of the facts and other issues not reached on the appeal to that court.

While plaintiff Carmen Martinez was in the first trimester of her pregnancy she was referred to defendants for genetic counseling to determine whether medication taken in a supposedly improper dosage during the first month of her pregnancy would have any effect on the fetus. Defendants negligently advised Carmen Martinez that her baby would be born with the congenital birth defect of microcephaly (small brain) or anencephaly (no brain). Based on this advice she submitted to an abortion believing that it would be justified under the extraordinary circumstances presented to her by defendants. After the abortion was performed, she learned that the advice defendants gave her was erroneous and the abortion was unnecessary.

At trial both Mrs. Martinez and her psychologist testified that to Mrs. Martinez, abortion, except under exceptional circumstances when it could be justified, is a sin; that Mrs. Martinez agreed to submit to the abortion because she was led to believe it was necessary under the circumstances represented to her; that if such circumstances had existed, she could have accepted the fact of the abortion and the resultant death of the fetus as justified; that when she discovered that the assumed extraordinary circumstances did not exist, Mrs. Martinez suffered mental anguish and depression from her awareness that, as a result of defendants’ negligence, she had needlessly committed an act in violation of her deep-seated convictions.

Plaintiff does not seek to recover for consequential emotional harm caused by observing or learning of injury or death to a third person as did the plaintiffs in Tebbutt v Virostek (65 NY2d 931), Kennedy v McKesson Co. (58 NY2d 500), Becker v Schwartz (46 NY2d 401), Vaccaro v Squibb Corp. (52 NY2d 809), Howard v Lecher (42 NY2d 109) and Tobin v Grossman (24 NY2d 609). On the contrary, her mental anguish and depression are the direct result of defendants’ breach of a duty owed directly to her in giving her erroneous advice on which she affirmatively acted in deciding to have the abortion. The emotional distress for which she seeks recovery does not derive from what happened to the fetus; it derives from the psychological injury directly caused by her agreeing to an act which, as the jury found, was contrary to her firmly held beliefs. Defendants’ breach of duty was the precipitating and proximate cause of that injury.

In Tebbutt v Virostek (supra), Kennedy v McKesson Co. (supra) and Vaccaro v Squibb Corp. (supra), third persons, not plaintiffs, were directly injured as a result of the defendants’ breach of duty. Here, in contrast, the injury to the claimed third person, the fetus, was only an indirect, albeit intended, result of the breach of defendant’s duty owed to Mrs. Martinez. Under these unusual circumstances, where there is a breach of a duty owed by defendant to plaintiff, the breach of that duty resulting directly in emotional harm is actionable.

Titone, J.

(dissenting). I cannot concur in either the result or the majority’s reasoning. In its effort to distinguish this case from the line of cases disallowing recovery for bystanders’ emotional trauma, the court has, in effect, recognized a new cause of action for negligent infliction of harm to an individual’s deep-seated beliefs. The creation of such a cause of action is certainly not in harmony with our prior case law. While we have previously recognized a right of recovery for intentional infliction of emotional distress by outrageous conduct (Ford Motor Credit Co. v Hickey Ford Sales, 62 NY2d 291, 303; Murphy v American Home Prods. Corp., 58 NY2d 293, 303; see, Halio v Lurie, 15 AD2d 62; cf., Weicker v Weicker, 22 NY2d 8) and have permitted recovery for shock and emotional distress resulting from negligently induced fear of physical injury (Battalla v State of New York, 10 NY2d 237; Ferrara v Galluchio, 5 NY2d 16), we have never gone so far as to suggest that tort compensation could be had for emotional distress derived from the guilt resulting from performing an act contrary to one’s convictions because negligently advised to do so.

Because I cannot accept this new theory, and its possible ramifications, I dissent.

Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone dissents and votes to affirm in an opinion; Chief Judge Wachtler taking no part.

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