text:
    The People of the State of New York, Appellant, v Kelvin Felton, Respondent.
    Decided October 24, 1991

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Elizabeth Clifford of counsel), for appellant.

      Edward J Nowak, Public Defender (Roger Brazill of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In response to an anonymous telephone call indicating that a medium-build dark complected black male was selling narcotics at a particular intersection in the City of Rochester, an officer was dispatched to the reported location. Upon arrival, he observed defendant, who fit the description, at the intersection.

As defendant proceeded across the street, the officer stopped his vehicle as if to let him pass, but was motioned on. The officer did not proceed, however and alighted from his car and asked defendant to stop. Receiving no response, the officer again asked him to stop. Defendant replied, "For what? I’m walking,” and responded the same way to a third request that he stop. The officer then told defendant that he wanted to talk to him, and as he approached, attempted to physically restrain defendant who started to walk away and then started to run. The officer grabbed him by the arm, whereupon defendant spun around, striking the officer in the face. He was able to break free, but was overtaken by the officer who, after a brief struggle, managed to handcuff him. A pat-down search produced four packets of cocaine.

Defendant was subsequently charged with criminal possession of a controlled substance in the third and fifth degrees, resisting arrest and second degree assault. His ensuing motion to suppress the contraband was granted by the hearing court, that court concluding that the officer lacked a sufficient basis for the stop. The hearing court also concluded that defendant’s action in striking the police officer was "immediate, spontaneous, and proportionate to the officer’s attempt to lay hands on him when he refused to stop,” and did not attenuate the unlawful stop so as to make the arrest lawful and render the contraband admissible.

The Appellate Division affirmed noting that the People’s reliance on Penal Law § 35.27 was misplaced because that section related only to the defense of justification and did not in the circumstances of the case "provide a substantive basis for the officer’s arrest or attempted arrest of defendant.” (171 AD2d 1034.)

The People contend that the courts below erred in finding a lack of attenuation, arguing that the defendant’s unlawful striking of the officer, in violation of Penal Law § 35.27, justified the arrest and incidental search. They argue that suppression should have been denied under the authority of People v Townes (41 NY2d 97) where we concluded that the action of that defendant in pulling and firing a gun at a police officer served "to render any 'connection between the lawless conduct of the police and the discovery of the challenged evidence * * * "so attenuated as to dissipate the taint” ’ ” (id., at 102, quoting Wong Sun v United States, 371 US 471, 487). There is evidence in this record to support the determination of the courts below that defendant’s action in striking the officer was "immediate, spontaneous, and proportionate to the officer’s attempt to lay hands on him when he refused to stop” and thus, was not sufficient to attenuate the unlawful stop so as to render the arrest and seizure of the contraband lawful (see, People v Wilkerson, 64 NY2d 749). Thus, that issue is beyond this Court’s further review.

The People’s additional argument that, in striking the officer, the defendant violated the "no-sock” law (Penal Law § 35.27) and that this alleged violation could serve as the basis for the arrest and seizure of the contraband is without merit. That statute concerns the defense of justification and does not create a new substantive crime (see, People v Harewood, 63 AD2d 876; People v Simms, 36 AD2d 23, 24). Thus, although the statute might preclude a justification defense to a charge of assault, it could not serve to transform the illegal arrest of defendant into a lawful one.

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 in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Fred D. Carman, Respondent, v European American Bank & Trust Company, Appellant.
    Argued September 11, 1991;
    decided October 24, 1991
    APPEARANCES OF COUNSEL

      Jeffrey B. Hulse for appellant.

      Joseph A. Milligan for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and order of the Appellate Division brought up for review should be modified, with costs to defendant, by reversing so much thereof as affirmed the order of the Supreme Court which granted plaintiff an unqualified discharge of a docketed judgment and by substituting therefor a qualified discharge, and the judgment and order should otherwise be affirmed.

Plaintiff, whose personal liability for preexisting debts was discharged in a Federal bankruptcy proceeding, commenced this action under Debtor and Creditor Law § 150 for an order directing that "a discharge * * * be marked on the docket of [a] judgment” previously obtained against him by defendant. In response to plaintiff’s request for relief on this claim, defendant, which holds a lien on plaintiff’s real property as a result of its judgment, cross-moved for an order dismissing the cause of action or, in the alternative, granting plaintiff only a "qualified discharge.” The latter request was premised on Debtor and Creditor Law § 150 (4) (h), which provides: "[I]f it appears that the judgment was a lien on * * * real property and it is not established to the satisfaction of the court that the lien was invalidated or surrendered in the bankruptcy proceedings or set aside in an action brought by the receiver or trustee, the order shall direct that a qualified discharge be marked on the docket of the judgment” (emphasis supplied). A "qualified” discharge, as distinguished from an unqualified discharge, serves as notice to third parties that, notwithstanding the debtor-owner’s discharge in bankruptcy, the property may, nonetheless, still be burdened by liens.

Thus, where the judgment in question is secured by a lien on real property, the debtor seeking to have the docket marked with an "unqualified discharge” has the burden of establishing, to the satisfaction of the court, that the lien was actually abrogated or nullified in the bankruptcy proceeding. As a matter of law, plaintiff failed to meet this burden.

PláintifFs only salient submission in support of his claim was the judgment of the Federal Bankruptcy Court, which discharged him from personal liability for his preexisting debts. It is elementary, however, that liens and other similar secured interests ordinarily survive bankruptcy (see, e.g., Farrey v Sanderfoot, 500 US —, —, 114 L Ed 2d 337, 345; Long v Bullard, 117 US 617; Matter of Tarnow, 749 F2d 464, 465-466). Moreover, a creditor need not object to the bankrupt’s discharge in order to preserve its lien, since the discharge does not affect the lien. Thus, contrary to plaintiff’s contention, his discharge in bankruptcy did not, in itself, vitiate defendant’s right to enforce its lien (see, 11 USC § 524 [a] [1]; 3 Collier, Bankruptcy ¶ 524.01 [3] [15th ed]), even though defendant did not raise objection to the discharge.

Nor was defendant’s lien affected by the homestead exemption that was applied to the property without objection by defendant. Under section 522 (b) (2) (A) of the Federal Bankruptcy Code (11 USC § 522 [b] [2] [A]), plaintiff was entitled to claim the exemption for a "homestead” that New York State law allows (see, CPLR 5206). Moreover, in the absence of a timely objection from defendant or some other interested third party, plaintiff’s claim for an exemption would be deemed valid without more (see, 3 Collier, Bankruptcy, op. cit., If 522.26, at 522-82). However, plaintiff’s successful invocation of the homestead exemption did not automatically extinguish defendant’s lien against the property. To the contrary, despite the exemption, a lien against the exempt realty remains valid (see, Farrey v Sanderfoot, supra, at —, at 345; Long v Bullard, supra), unless the debtor takes affirmative steps to avoid it by making an application under section 522 (f) (1) of the Federal Bankruptcy Code (see, Bankruptcy Rule 4003). Indeed, complete dissolution of the lien is not assured even when the debtor does invoke section 522 (f) (1), since that statute authorizes the lien’s invalidation only "to the extent” that it impairs the exemption. If the debtor’s equity interest in the property equals or exceeds the maximum allowable homestead exemption after the amount of the lien is subtracted, the lien may still be valid (see, e.g., In re Dixon, 885 F2d 327; see also, In re Fitzgerald, 729 F2d 306).

Inasmuch as plaintiff did not demonstrate that he took such affirmative steps to initiate a proceeding under section 522 (f) (1), he failed to meet his burden of "establishing] to the satisfaction of the court that [defendant’s] lien was invalidated or surrendered in the bankruptcy proceedings” (Debtor and Creditor Law § 150 [4] [b]). Accordingly, he is entitled only to a "qualified discharge” (id.).

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

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


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    The People of the State of New York, Appellant, v Benjamin Seegars, Respondent.
    Decided October 24, 1991

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney (Richard Sheridan of counsel), for appellant.

      Daniel M. Felber for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).

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


text:
    In the Matter of Commissioner of the Department of Housing Preservation and Development of the City of New York, Respondent, v Mara Kirsch, Appellant.
    Submitted October 15, 1991;
    decided October 24, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the Court of Appeals does not have jurisdiction to entertain an appeal from the nonfinal order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b]; CPLR 5601).


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    Lauren G. Hemphill, Respondent, v David V. Hemphill, Appellant.
    Submitted October 15, 1991;
    decided October 24, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


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    Radha Kalra, Respondent, v Ramesh Kalra, Appellant.
    Submitted July 29, 1991;
    decided October 24, 1991
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dated April 18, 1991, denying defendant’s motion for leave to appeal to the Court of Appeals, and from that portion of the Appellate Division order dated February 19, 1991 that affirmed four orders of Supreme Court, dismissed upon the ground that the April 18, 1991 Appellate Division order and the above-stated portion of the February 19, 1991 Appellate Division order do not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from that portion of the February 19, 1991 Appellate Division order that dismissed the appeal from the judgment of divorce, dismissed upon the ground that as to that portion of the order, movant is not a party aggrieved.


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    In the Matter of Barbara R. Kennedy, Appellant, v Zoning Board of Appeals of the Village of Croton-on-Hudson et al., Respondents, and Barry Fields et al., Intervenors-Respondents.
    Argued October 16, 1991;
    decided November 19, 1991

      APPEARANCES OF COUNSEL

      William S. Null and Ellen M. Mello for appellant.

      Karen Honeycutt for respondents.
   OPINION OF THE COURT

Memorandum.

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

The respondent Zoning Board of Appeals of the Village of Croton-on-Hudson orally granted a variance to Ernest Dixon and Iris D’Alvia after a public hearing held on December 19, 1988. A copy of the minutes of this meeting reflecting the Board’s vote was filed in the office of the Village Clerk on or about January 4, 1989. On February 10, 1989, the appellant Kennedy commenced a CPLR article 78 proceeding to set aside the granting of the variance. The trial court granted respondent’s motion to dismiss the proceeding, concluding that appellant’s challenge to the granting of the variance was time-barred. The Appellate Division affirmed.

Village Law § 7-712 (3) permits a person aggrieved by a zoning board of appeals decision to challenge that decision in an article 78 proceeding, but requires that the proceeding be instituted "within thirty days after the filing of a decision in the office of the village clerk.” In this case, appellant commenced the article 78 proceeding 37 days after the minutes incorporating the respondent’s decision were filed in the office of the Village Clerk.

We agree with the Appellate Division that the filing of these minutes on January 4, 1989 was sufficient to begin the running of the Statute of Limitations and that the appellant’s claim is, consequently, time-barred. That the minutes were not approved by the Board until a subsequent meeting does not affect the date of filing. Nor has petitioner shown that she was affected by any claimed "ambiguity and uncertainty” as to the date of filing allegedly created because the minutes were unsigned, or because a public agenda of the Board’s next meeting erroneously stated that the variance application was continued to a later date.

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

Order affirmed, with costs, in a memorandum.


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    In the Matter of Jose Torres, Respondent. The People of the State of New York, Appellant, et al., Respondent.
    Argued October 16, 1991;
    decided November 19, 1991

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Morrie I. Kleinbart and Norman Barclay of counsel), for appellant.

      Stephen J. Harkavy and Marvin Bernstein for Jose Torres, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division (166 AD2d 228), and certified question not answered as unnecessary.

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


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    The People of the State of New York, Respondent, v Chakka Williams, Appellant.
    Argued October 17, 1991;
    decided November 19, 1991

      APPEARANCES OF COUNSEL

      Daniel S. Steinberg and Ursula Bentele for appellant.

      Charles J. Hynes, District Attorney (Keith Dolan, Jay M. Cohen and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. Defendant’s Rosario argument is unpreserved for this Court’s review, and his remaining arguments are without merit.

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


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    The People of the State of New York, Respondent, v David Offen, Appellant.
    Argued October 11, 1991;
    decided November 19, 1991
    APPEARANCES OF COUNSEL

      Clark J. Zimmermann for appellant.

      Theodore E. Wiggins, Jr., District Attorney (Melvin Bressler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On August 18, 1988, a search warrant was issued authorizing the search of a package addressed to defendant, as well as a search of defendant’s residence and his automobile. Defendant sought to suppress cocaine, marihuana and various firearms seized during the search, contending that no probable cause existed to sustain the warrant since it was based upon an unreasonable and unconstitutional canine "sniff’ and X-ray search of the package addressed to him. Following County Court’s denial of the motion to suppress, defendant pleaded guilty to criminal possession of a controlled substance in the third degree. The Appellate Division affirmed.

Acting upon information received from two informants that defendant was receiving shipments from Florida of cocaine concealed in teddy bears via United Parcel Service (UPS) or Federal Express, the Sheriffs department confirmed that four packages, all bearing a return address from Miami, Florida, had been delivered by UPS to defendant during a two-month period.

Shortly thereafter, the Sheriffs department was notified by UPS that another package from the same Florida address had been received for delivery to defendant. UPS was instructed to hold the package so that a Customs Service dog, trained to "alert” on the presence of marihuana, cocaine and heroin, could "sniff’ the package. The dog in fact "alerted” upon sniffing the package addressed to defendant and an X ray of the package revealed the outline of a packet contained within what appeared to be the shape of a teddy bear. A warrant was issued based on information supplied by the informants, the "sniff’ search and X ray of the package. Defendant contends that the "sniff’ and X ray of the package were unreasonable searches, violating the New York State Constitution and thus, may not constitute probable cause justifying issuance of the warrant and the ensuing search.

The United States Supreme Court has determined that a canine "sniff’ of a person’s luggage while at an airport by a well-trained narcotics detection dog does not constitute a search within the meaning of the Fourth Amendment (see, United States v Place, 462 US 696; see also, United States v Jacobsen, 466 US 109). We have concluded, however, that such a canine "sniff’ may constitute a search within the provision of article I, § 12 of the NY Constitution (People v Dunn, 77 NY2d 19). In Dunn, the police conducted a canine sniff in the hallway of defendant’s apartment building to determine whether illegal drugs were present in the apartment. We held that the "sniff” constituted a search under the facts of that case because "the police were able to obtain information regarding the contents of a place that has traditionally been accorded a heightened expectation of privacy” (id., at 25). We ultimately concluded that a canine "sniff” search like that in Dunn was permissible, despite the absence of a warrant or probable cause, provided it was supported by reasonable suspicion that contraband was contained in the apartment.

We need not determine here, however, whether the canine "sniff” of defendant’s package constituted a search within the meaning of article I, § 12 of our State Constitution (see, People v Price, 54 NY2d 557) because even if we were to conclude that the "sniff” constituted a search, the "sniff” would have been proper inasmuch as the Sheriffs had sufficient information to support a reasonable suspicion that the package contained contraband (People v Dunn, supra).

Inasmuch as the "alert” by the Customs Service dog upon sniffing defendant’s package itself constituted probable cause that the package contained narcotics and thus was sufficient to support the issuance of the warrant (see, People v Dunn, 77 NY2d 19, supra), we need not determine whether an X ray of the package constitutes an illegal search.

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

Order affirmed in a memorandum.

         Although defendant raised the Federal Constitution as a basis for suppressing the evidence at the trial court, he does not press that argument here. Thus, we address the State constitutional question alone.


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    In the Matter of Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, Respondent, v 198 Broadway, Inc., et al., Respondents, and Henry Modell and Co., Inc., Appellant.
    Submitted August 5, 1991;
    decided November 19, 1991
   Motion to amend remittitur dismissed as untimely (22 NYCRR 500.11 [g] [3]; see, Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 999). [See, 76 NY2d 411.] The Court of Appeals reserves jurisdiction to determine, after notice and written submissions, the question initiated by the Court, on its own motion, pursuant to 22 NYCRR 130-1.1 (d). Cross motion to seal exhibit denied.


text:
    Martin Palma et al., Respondents, v Ben Cal Associates et al., Defendants, Third-Party Plaintiffs, and Second Third-Party Plaintiffs. Alan S. Schwartzberg Plumbing and Heating, Inc., Third-Party Defendant-Appellant; Larrs Construction, Inc., Second Third-Party Defendant-Respondent.
    Submitted September 3, 1991;
    decided November 19, 1991
   Motion for leave to appeal dismissed upon the ground that the judgment from which leave to appeal is sought has been vacated.


text:
    In the Matter of Rose V., Appellant, v Commissioner of Social Services, Respondent.
    Submitted September 9, 1991;
    decided November 19, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Henry Hambel, Appellant, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Decided November 21, 1991

      APPEARANCES OF COUNSEL

      Patricia Condon for appellant.

      Robert Abrams, Attorney-General (Francis V. Dow, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (174 AD2d 891).

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


text:
    Linda M. Lichtenthal et al., as Coexecutors of Stanley J. Feldman, Deceased, Appellants, v St. Mary’s Church et al., Defendants, and Edward M. Spoth, Daniel Herberger and Germain Krafft, Respondents.
    Argued October 8, 1991;
    decided November 21, 1991

      APPEARANCES OF COUNSEL

      Richard N. Blewett for appellants.

      Victor A. Rossetti for Edward M. Spoth, respondent.

      Kenneth R. Kirby for Daniel Herberger, respondent.

      Lynn D. Gates for Germain Krafft, respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed, with costs. We agree with the Appellate Division that each of the three defendants was entitled to summary judgment as a matter of law because, as covolunteers, they owed no duty to plaintiffs’ decedent other than to exercise reasonable care under the circumstances and no evidence in admissible form was adduced sufficient to create an issue of fact as to whether defendants breached that duty.

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

Orders affirmed, with costs, in a memorandum.


text:
    Steven M. Marlowe, an Infant, by His Parent and Natural Guardian, Steven L. Marlowe, et al., Appellants, v Rush-Henrietta Central School District et al., Respondents.
    Argued October 8, 1991;
    decided November 21, 1991

      APPEARANCES OF COUNSEL

      George A. Schell for appellants.

      James E. Maslyn for Rush-Henrietta Central School District, respondent.

      David F. Bowen, Robert M. Shaddock and Roger G. Preston, Jr., for Derrick Nesmith, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (167 AD2d 820).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa. Judge Alexander dissents and votes to reverse for the reasons stated in the dissenting memorandum at the Appellate Division (167 AD2d 820, 820-822).


text:
    Berkeley Associates Company, Appellant, v Angelina Camlakides, Also Known as Angelina Camalkides, Also Known as Angelina Ross, et al., Respondents, et al., Respondents.
    Decided November 21, 1991

      APPEARANCES OF COUNSEL

      Stanley M. Kaufman for appellant.

      Jason S. Garber for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (173 AD2d 193), and certified question not answered as unnecessary.

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


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    Elizabeth Jason et al., Appellants, v Lawrence Chusid et al., Individually and as Executors of the Estate of Anne Chusid, Deceased, et al., Respondents.
    Submitted October 28, 1991;
    decided November 21, 1991

      APPEARANCES OF COUNSEL

      John L. Edmonds for appellants.

      Howard Wenig and Magda L. Cruz for Lawrence Chusid and others, respondents.

      Frederick Siegmund for estate of Sol Chusid, respondent.
   OPINION OF THE COURT

Motion for reargument of motion for leave to appeal (dismissed on Sept. 12, 1991 as untimely) denied, with $100 costs and necessary reproduction disbursements. [See, 78 NY2d 1008.] Cross motions by defendants-respondents Chusids and defendant-respondent estate of Sol Chusid for sanctions against the plaintiffs-appellants and their attorney granted, sanctions in the amount of $5,000 imposed upon plaintiffs and sanctions in the amount of $5,000 imposed upon plaintiffs’ attorney, John L. Edmonds. The nature and repetition of plaintiffs’ litigation tactics over a five-year period resulting in four separate adjudications in the Court of Appeals constitute a strategy of dilatory, harassive, abusive and frivolous conduct within the meaning of 22 NYCRR 130-1.1 (a) and (c). We note also that despite the imposition of sanctions on plaintiffs by Supreme Court, plaintiffs remain undeterred. Thus, based on the record before us and the matters properly presented to the Court by respondents Chusids and respondent estate of Sol Chusid, the abuse of the judicial process supports the imposition of sanctions (see, Maroulis v 64th Street-Third Ave. As socs., 77 NY2d 831; Bell v New York Higher Educ. Assistance Corp., 76 NY2d 930).


text:
    Linda Sledge, as Administratrix of the Estate of Cecil Sledge, Deceased, Appellant, v City of New York, Respondent, et al., Defendants.
    Submitted August 19, 1991;
    decided November 21, 1991
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the order of Supreme Court denying plaintiffs motion to renew, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.


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    The People of the State of New York, Appellant, v Jimmie E. Ortega, Also Known as "Jimmie”, Also Known as Leonidas Marmolejos, Respondent.
    Decided November 25, 1991

      APPEARANCES OF COUNSEL

      Robert R. Wildridge, District Attorney (James P. Maxwell of counsel), for appellant.

      Vivian M. Aquilina for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of two counts of criminal sale and possession of a controlled substance. The sale of cocaine upon which defendant’s conviction was predicated took place after a confidential informant introduced an undercover police officer to the defendant.

During cross-examination, the undercover officer refused to disclose the identity of the confidential informant. Recognizing that the court had to decide whether or not to require disclosure pursuant to guidelines set forth in People v Goggins (34 NY2d 163), the court conducted an ex parte conference in chambers with the officer. The conference took place without the presence, knowledge or consent of either party or counsel. Its purpose, as later stated by the court on the record, was to advise the witness about a potential Goggins problem and to attempt to persuade him to voluntarily disclose the identity of the informant.

We agree with defendant that the inquiry was a material part of the trial. Thus, the trial court’s actions in conferring privately with the witness violated defendant’s rights (People v Turaine, 78 NY2d 871, 872; People v Darby, 75 NY2d 449, 453).

The People contend that no Goggins issue was raised in the ex parte conference with Officer Fritzen because the Judge’s only purpose was to persuade the officer to disclose the identity voluntarily, and because the Goggins issue was resolved thereafter based upon existing decisional authority submitted by the parties. There is no record, however, to show what was said in chambers or whether it contributed to the court’s decision that disclosure was not required. It is possible that Officer Fritzen, in explaining his refusal to disclose the identity of the informant, stated an unrebutted view of the facts which influenced the trial court in reaching its subsequent decision. At least, the conference must be viewed in that light on the present state of the record.

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 in a memorandum.


text:
    Sheryl Cooper, Appellant, v Solomon Kaplan et al., Respondents.
    Argued October 8, 1991;
    decided November 25, 1991

      APPEARANCES OF COUNSEL

      Leonard, S. Shoob for appellant.

      Howard R. Cohen for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff alleges that defendant committed medical malpractice when he prescribed birth control pills knowing that she had previously had phlebitis while taking similar medication. Defendant moved to dismiss the action on the ground that it was untimely, having been commenced in April 1988 — nearly three years after the pills were prescribed. Plaintiff contends that the action is timely by reason of the continuous treatment doctrine, which tolled the Statute of Limitations during the time she took the pills.

The continuous treatment doctrine tolls the 2!4-year limitations period for medical malpractice actions when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint (CPLR 214-a; Nykorchuck v Henriques, 78 NY2d 255; McDermott v Torre, 56 NY2d 399, 408). The premise underlying the doctrine is that a plaintiff should not have to interrupt ongoing treatment to bring a lawsuit, because the doctor not only is in a position to identify and correct the malpractice, but also is best placed to do so. In the absence of continuing efforts by a doctor to treat a particular condition or complaint, however, those policy reasons do not justify the patient’s delay in bringing suit.

While plaintiff’s counsel argues that defendant supplied plaintiff with a six-month prescription, that she spoke to defendant on at least two occasions to complain of leg pain, and that he advised her to continue the medication, there is no support in plaintiff’s complaint or affidavits for these assertions. Indeed, the record does not reflect that plaintiff contemplated, or had, a continuing patient/physician relationship with defendant. We therefore do not consider the legal question whether the conduct argued by counsel could constitute continuous treatment.

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

Order affirmed, with costs, in a memorandum.


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    Margaret M. Robillard, Respondent, v Dean Robbins, III, et al., Appellants.
    Argued October 16, 1991;
    decided November 25, 1991
    APPEARANCES OF COUNSEL

      James L. Pemberton for appellants.

      Harold D. Gordon for respondent.
   OPINION OF THE COURT

Memorandum.

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

While defendants urge that it was error to allow plaintiffs medical expert to express opinions on the very questions to be resolved by the jury, their general objections were insufficient to preserve a law issue for our review (see, Matter of Gonzalez v State Liq. Auth., 30 NY2d 108, 112-113; Wightman v Campbell, 217 NY 479, 482-483).

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

Order affirmed, with costs, in a memorandum.


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    Anita Van Gorder et al., Respondents, v Masterplanned, Incorporated, Formerly Known as Muttontown Holding Corp., Appellant, et al., Defendants.
    Argued October 8, 1991;
    decided November 25, 1991

      APPEARANCES OF COUNSEL

      Elliot Paskoff, Avrom E. Greenberg and Francis J. Hearn, Jr., for appellant.

      Jerry A. Weiss for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and plaintiffs’ motion for summary judgment denied.

Inasmuch as a triable issue of fact exists as to whether plaintiffs, who claim to have acquired title to defendant’s property by adverse possession, acknowledged during the statutory 10-year period that actual ownership of the property rested with defendant, summary judgment should not have been awarded to plaintiffs. Such a concession, if found by the trier of fact to exist, would negate an essential element of plaintiffs’ adverse possession claim, namely, that they continued to possess the property under a claim of right throughout the statutory period (see, City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118, 123; see also, Van Valkenburgh v Lutz, 304 NY 95, 99).

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

Order reversed, etc.


text:
    James R. Gibson et al., Respondents, v Worthington Division of McGraw-Edison Company, Appellant. (And a Third-Party Action.)
    Argued October 10, 1991;
    decided November 25, 1991

      APPEARANCES OF COUNSEL

      Benjamin M. Zujfranieri, Jr., and R. William Larson for appellant.

      Paul William Beltz for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant’s cross motion for summary judgment dismissing the second cause of action granted.

Having sustained some damage to the roof of one of its buildings, defendant sought repair estimates from several contractors, including Edward M. Ziegler Co., plaintiffs employer. Plaintiff, a design engineer who had defendant as one of his accounts, went to defendant’s building for the purpose of inspecting the damage. While he was being shown the damaged area by defendant’s maintenance supervisor, the roof gave way and plaintiff was injured.

Inasmuch as plaintiff’s firm had not been hired to perform any construction work on the premises at the time the accident occurred, plaintiff was not a person "employed” to carry out the repairs as that term is used in section 200 (1), section 240 (1) and section 241 (6) of the Labor Law (see, Chabot v Baer, 55 NY2d 844, affg 82 AD2d 928). That plaintiff’s firm had not volunteered, but rather had been invited by defendant to submit an estimate does not alter the status of the firm from that of a potential bidder to that of an employee. Accordingly, plaintiff was not within the class of workers that those statutory provisions were enacted to protect (see, Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 576-577), and he cannot invoke them as a basis for recovery. Instead, plaintiff is entitled to recover only if he can establish the elements of a traditional negligence cause of action, as pleaded in his first cause of action.

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

Order reversed, etc.


text:
    Bull & Bear Group, Inc., Respondent, v James W. Fuller, Appellant.
    Submitted October 21, 1991;
    decided November 25, 1991
   Motion for leave to appeal dismissed upon the ground that the final order of the Appellate Division, dated February 14, 1991 [170 AD2d 275], was the final appealable paper from which no appeal or motion was properly taken (see, CPLR 5611).


text:
    David Harper et al., Respondents, v Lumbermen’s Mutual Casualty Co., Appellant.
    Submitted October 21, 1991;
    decided November 25, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Norstar Bank of Upstate NY, Respondent, v Office Control Systems, Inc., et al., Defendants, and Robert Winig, Appellant.
    Submitted October 7, 1991;
    decided November 25, 1991

      APPEARANCES OF COUNSEL

      Robert M. Cohen for appellant.

      Joseph M. Gaug for respondent.
   OPINION OF THE COURT

Motion for leave to appeal dismissed as untimely. While the cover letter here stated only that the Appellate Division order was attached and did not specify that it was entered, the attached Appellate Division order was stamped entered with the date of entry and the name of the clerk of the court where the order was entered. Service of this cover letter together with the Appellate Division order constitutes service of the order with notice of entry so as to commence the running of appellant’s time to move for leave to appeal. Thus, the motion for leave to appeal made more than 35 days after service of the cover letter and the Appellate Division order, was untimely (CPLR 5513 [b]; 2103 [b] [2]).


text:
    Valerie Barrett, as Administratrix of the Estate of Kellian Barrett, Deceased, Respondent, v State of New York, Appellant.
    (Claim No. 74265.)
    Argued October 8, 1991;
    decided November 26, 1991

      APPEARANCES OF COUNSEL

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

      Martin Diennor and Abraham Fuchsberg for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and certified question answered in the affirmative, for the reasons stated in the opinion by Justice Thomas R. Sullivan at the Appellate Division (161 AD2d 61).

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


text:
    Vermeer Owners, Inc., et al., Appellants, v Gerald Guterman et al., Respondents, et al., Defendants, and Fleur Garage Corp., Respondent. (And Another Proceeding.)
    Argued October 17, 1991;
    decided November 26, 1991

      APPEARANCES OF COUNSEL

      Jerome R. Halperin and Guy S. Halperin for appellants.

      Eugene L. Girden, Russell G. Bogin, Jeffrey A. Jennes and Stanley L. Kantor for Gerald Guterman and another, respondents.

      David Rozenholc, Jacob Aschkenasy and Donald Eng for Fleur Garage Corp., respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the courts below that plaintiffs may not maintain a private cause of action under the Martin Act (CPC Intl. v McKesson Corp., 70 NY2d 268, 276-277). Plaintiffs contend that CPC is not controlling because that case involved the violation of General Business Law § 352-c, which addresses a variety of fraudulent acts and practices in the sale and exchange of securities and other properties, whereas the present claim is based upon a violation of section 352-e, which specifically addresses real estate syndication offerings. The difference, however, is not legally significant because our decision in CPC rested on a determination that "an implied private [cause of] action is not consistent with the legislative scheme underlying the Martin Act” (id., at 276-277). That conclusion also forecloses a private cause of action under section 352-e.

We also agree with the holding of the courts below that these plaintiffs have no basis for invalidating the lease on the ground of unconscionability or breach of fiduciary duty (see generally, Sablosky v Gordon Co., 73 NY2d 133, 138; Gillman v Chase Manhattan Bank, 73 NY2d 1, 10-11).

With respect to plaintiffs’ fraud claim, we recognize that sponsors of apartment house conversions have a duty to meet high standards of fair dealing and good faith toward tenants (People v Lexington Sixty-First Assocs., 38 NY2d 588, 595; see, Gilligan v Tishman Realty & Constr. Co., 283 App Div 157, 162, affd 306 NY 974; Lizby Assocs. v Baron, 130 Misc 2d 834, 835) and that in many instances purchasing tenants and sponsors do not deal as equals either in terms of access to information or business acumen and thus, tenants often lack equal bargaining power (see, e.g., Horn v 440 E. 57th Co., 151 AD2d 112, 119).

Plaintiffs argue that defendants City Partners and Guterman misrepresented the lease transaction in the offering plan. Although it is clear that the offering plan contained statements that were demonstrably false, plaintiffs have not met their burden. They were required to prove by clear and convincing evidence a representation of material fact, falsity, scienter, reliance and injury. Nothing in this record establishes that plaintiffs in fact relied on any misrepresentation by defendants to their detriment. Thus, they have failed to establish common-law fraud and the complaint was properly dismissed.

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

Order affirmed, with costs, in a memorandum.


text:
    Theodore A. Tanney et al., Appellants, v Lester Greaux et al., Respondents.
    Decided November 26, 1991

      APPEARANCES OF COUNSEL

      Howard Rukeyser for appellants.

      William Maker, Jr., for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to plaintiffs, by denying defendant’s cross motion for summary judgment and, as so modified, affirmed for the reasons stated in the dissenting in part memorandum by Presiding Justice Guy J. Mangano at the Appellate Division (174 AD2d 728).

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 Steven Cheswick, Appellant.
    Decided November 26, 1991

      APPEARANCES OF COUNSEL

      Francis Gordon GaNun for appellant.

      Richard A. Brown, District Attorney (John Castellano of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. The sole issue raised by defendant has not been preserved for this Court’s review.

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


text:
    In the Matter of Damali B., a Person Alleged to be in Need of Supervision, Appellant.
    Submitted September 23, 1991;
    decided November 26, 1991
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    Gregory Blass et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Submitted September 30, 1991;
    decided November 26, 1991
   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 with $100 costs and necessary reproduction disbursements.


text:
    Jacqueline Mills, Appellant, v Dennis J. Pappas et al., Respondents.
    Submitted October 7, 1991;
    decided November 26, 1991
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division denying plaintiff’s motion for leave to appeal, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from that portion of a separate order of the Appellate Division, which affirmed Supreme Court’s order denying plaintiff’s motion for renewal and/or reargument and Supreme Court’s order denying plaintiffs motion to vacate the judgment against her, dismissed upon the ground that that portion 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 the City of New York, Respondent, v Unsafe Building and Structure at 21 Richmond Avenue, Staten Island; Joseph Geronimo, Jr., Appellant.
    Submitted October 28, 1991;
    decided November 26, 1991
   Motion for leave to appeal dismissed upon the ground that it does not lie. Motion for reargument dismissed as untimely. [See, 77 NY2d 871.]


text:
    In the Matter of the New York City Transit Authority, Respondent, v New York State Public Employment Relations Board, Appellant, and Amalgamated Transit Union, Division 726, AFL-CIO, Intervenor-Appellant.
    Submitted October 15, 1991;
    decided November 26, 1991
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (see, Cohen and Karger, Powers of the New York Court of Appeals § 43 [d]; § 45 [a]).


text:
    In the Matter of Park 7th Associates, Respondent, v Mayne Miller, Appellant.
    Submitted October 7, 1991; decided
    November 26, 1991
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, as untimely (CPLR 5513 [a]).


text:
    The People of the State of New York ex rel. Dante E. Paganini, Appellant, v Joseph P. Jablonsky, as Sheriff of Nassau County, Respondent.
    Submitted November 12, 1991;
    decided November 26, 1991
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    In the Matter of the Estate of Prabir Roy, Deceased. Indumati Roy, Appellant; Tapon Roy et al., Respondents.
    Submitted October 15, 1991;
    decided November 26, 1991
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as pertains to respondent Sunanda McGarvey, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


author: Alexander, J. Simons, J.

text:
    In the Matter of David Winter, Appellant, v Board of Education for the Rhinebeck Central School District et al., Respondents.
    Argued November 21, 1991;
    decided January 14, 1992

      POINTS OF COUNSEL

      Ira Paul Rubtchinsky, Bernard F. Ashe and Rocco A. Soliviando for appellant.
    Pay may not be withheld from a tenured and certified teacher during the pendency of a teacher tenure hearing where, as here, there is no explicit authority to do so. (Matter of Jerry v Board of Educ., 35 NY2d 534; Matter of Derle v North Bellmore Union Free School Dist., 77 NY2d 483; Matter of Board of Educ. v Nyquist, 48 NY2d 97; Matter of Gross v Board of Educ., 78 NY2d 13; Matter of Adlerstein v Board of Educ., 64 NY2d 90; Matter of Board of Educ. v Ambach, 84 AD2d 55, 56 NY2d 792, 57 NY2d 775; Matter of Mannix v Board of Educ., 21 NY2d 455; Matter of Bali v Board of Educ., 68 AD2d 360, 48 NY2d 630; Matter of Butcher v Board of Educ., 99 Misc 2d 470.)

      David S. Shaw and Julie R. Seitz for respondents.
    There exists explicit authority for respondents to withhold appellant’s pay during the pendency of section 3020-a of the Education Law dismissal proceedings. (Matter of Jerry v Board of Educ., 35 NY2d 534; Matter of Gross v Board of Educ., 78 NY2d 13; Matter of Meliti v Nyquist, 41 NY2d 183; Matter of Cutler v Board of Educ., 65 NY2d 797; Matter of Amos v Board of Educ., 54 AD2d 297, 43 NY2d 706; Matter of Bradford Cent. School Dist. v Ambach, 82 AD2d 962, 56 NY2d 158; Matter of Adlerstein v Board of Educ., 64 NY2d 90; Matter of Bali v Board of Educ., 68 AD2d 360, 48 NY2d 630.)

      Jay Worona and Joseph B. Porter for the New York State School Boards Association, Inc., amicus curiae.

    Excessed teachers who must, under Education Law § 2510, be offered alternative positions within their tenure areas for which they are uncertified to teach, are not entitled to be paid during the pendency of section 3020-a proceedings. (Matter of Jerry v Board of Educ., 35 NY2d 534; Matter of Adlerstein v Board of Educ., 64 NY2d 90; Matter of Meliti v Nyquist, 41 NY2d 183; Matter of Bali v Board of Educ., 68 AD2d 360, 48 NY2d 630; Matter of Cutler v Board of Educ., 104 AD2d 988, 65 NY2d 797; Matter of Gross v Board of Educ., 78 NY2d 13.)
   OPINION OF THE COURT

Alexander, J.

On this appeal we are presented with the question left open by our decision in Matter of Smith v Board of Educ. and Matter of Cutler v Board of Educ. (65 NY2d 797). In that case, based on explicit statutory authorization in the Education Law, we concluded that the appellants, both of whom were tenured, but who had not obtained permanent certification after their provisional teaching certificates had expired, were not entitled to be paid their salaries during their suspension pursuant to section 3020-a of the Education Law for teaching without certification. We declined to reach the argument advanced by the respondent Board of Education in those cases —that teachers who hold a teaching certificate outside of the area to which they have been assigned to teach are "unqualified” for the purposes of being paid pending the outcome of a hearing pursuant to Education Law § 3020-a (id., at 799). We now reject what is essentially the same argument advanced here by the Rhinebeck Central School District Board and conclude that because there is no statutory authorization for withholding the pay of a tenured and certified teacher charged with lack of certification pending the determination of a section 3020-a proceeding where the teacher has been involuntarily reassigned to teach a subject area in which he or she is not certified, such teacher’s pay may not be withheld.

Appellant David Winter was hired by respondent Board of Education for the Rhinebeck Central School District to teach business education and taught in that area from 1973 to 1989. He received certification in driver and safety education in 1971, and in commerce (business) in 1974. He became tenured in 1975. In 1989, his position as a high school business teacher was eliminated as part of respondent’s reduction in force. Purportedly relying on section 2510 of the Education Law, respondent reassigned appellant to teach secondary science, a subject he was not certified to teach, and simultaneously informed him that proceedings pursuant to Education Law § 3020-a would be commenced against him due to his lack of certification to teach science. Respondent suspended appellant without pay pending the outcome of the section 3020-a proceeding. Pursuant to his collective bargaining agreement, appellant challenged the propriety of his involuntary reassignment under Education Law § 2510 through final and binding arbitration. He also commenced this CPLR article 78 proceeding seeking reinstatement to a teaching position within his area of tenure and certification, back pay, current pay and continued pay pending the final determination of the disciplinary proceeding.

Supreme Court dismissed the petition to the extent that it sought reinstatement because that issue was then pending before an arbitrator. The court concluded, however, that the Board did not have the authority to suspend appellant without pay since appellant was certified in the area for which he was originally hired to teach, and his suspension was due to the Board’s action in reassigning him to an area in which he lacked certification. That court directed the Board to pay appellant from the date of his suspension until the determination of the disciplinary proceeding.

The Appellate Division modified by reversing so much of Supreme Court’s judgment as directed the Board to pay appellant during his suspension. Relying on our decision in Matter of Meliti v Nyquist (41 NY2d 183), the Appellate Division concluded that notwithstanding appellant’s certification in the area for which he was originally hired to teach, he was not certified to teach in the area to which he had been reassigned, and therefore was "unqualified” to receive his salary pending the determination of the disciplinary proceeding. That court stated that a different holding would produce the " ’incongruous result’ ” that ’’ ’a teacher could be unqualified for the purposes of teaching in the educational area for which he was hired, but qualified for the purposes of drawing his pay while he was suspended from teaching’ ” (Matter of Winter v Board of Educ., 170 AD2d 825, 826, quoting Matter of Cutler v Board of Educ., 104 AD2d 988, affd 65 NY2d 797, supra). Petitioner appeals pursuant to leave granted by this Court, arguing only the issue whether the Appellate Division erred in denying him pay during his suspension. We now reverse.

It is well settled that compensation is a matter of such substantive right on the part of the teacher that it cannot be taken away except pursuant to explicit statutory or collective bargaining authorization (see, Matter of Board of Educ. v Nyquist, 48 NY2d 97; Matter of Jerry v Board of Educ., 35 NY2d 534, 541-542; see also, Matter of Derle v North Bellmore Union Free School Dist., 77 NY2d 483, 488; Matter of Adlerstein v Board of Educ., 64 NY2d 90, 98). The Board makes no claim that the applicable collective bargaining agreement authorizes it to withhold appellant’s pay. However, relying on our decision in Matter of Meliti v Nyquist (supra), it contends that Education Law §§3001, 3009 and 3010 provide explicit statutory authorization for its action in withholding appellant’s salary pending the outcome of a disciplinary hearing pursuant to Education Law § 3020-a.

Both parties recognize that resolution of this issue turns on whether a teacher is "qualified” pursuant to Education Law §3001. The Board argues, and the Appellate Division concluded, that a teacher who lacks certification in the subject to which he or she is assigned, in effect possesses no certificate at all and is therefore "unqualified” for the purpose of being paid pending the outcome of a section 3020-a disciplinary hearing; thus, our decision in Meliti is controlling. Appellant contends, on the other hand, that because there is no specific statutory authorization for suspending a tenured, certified teacher without pay, even though that teacher has been assigned to teach a subject in which he or she lacks certification, the general principle established in Matter of Jerry is controlling and he is entitled to be paid.

We reject as inconsistent with the plain language of Education Law § 3001 the attempt to equate teacher certification, and hence, "qualification,” with certification to teach in a specific subject area. Section 3001, entitled "Qualifications of teachers,” provides that "[n]o person shall be employed or authorized to teach in the public schools of this state who is * * * (2) Not in possession of a teacher’s certificate * * * or a diploma issued on the completion of a course in a state college for teachers or state teachers college of this state.” In Meliti (supra), where a tenured teacher who failed to acquire the requisite graduate credits to receive a permanent teaching certificate was suspended pursuant to Education Law § 3020-a on charges of teaching without certification after his provisional teaching certificate expired, we found in the confluence of sections 3001, 3009 and 3010 of the Education Law the explicit statutory authorization required by Jerry (supra). We held that the appellant in Meliti was not entitled to be paid during his suspension because section 3009 (1) forbids the payment of school district moneys to an "unqualified” teacher, and section 3010 makes it a misdemeanor for any school official to pay a salary to an "unqualified” teacher. We therefore concluded that "in the case of an uncertified teacher there is a quite specific statutory prohibition against payment during suspension” (Matter of Meliti v Nyquist, supra, at 188 [emphasis added]; see also, Matter of Smith v Board of Educ. and Matter of Cutler v Board of Educ., 65 NY2d 797, 799, supra).

Unlike the situation in Meliti, however, appellant Winter, holding certificates in business and driver education, was clearly certified to teach on the day he was suspended, and thus was "qualified” pursuant to Education Law § 3001 (see, Matter of Bali v Board of Educ., 68 AD2d 360, 362-363 [Hancock, Jr., J.], appeal dismissed 48 NY2d 630; cf., Matter of Smith v Board of Educ. and Matter of Cutler v Board of Educ., supra, at 799; Matter of Meliti v Nyquist, supra). It is evident that the Legislature, in enacting sections 3001, 3009 and 3010 of the Education Law, rather than requiring certification in a particular subject as a prerequisite for teacher "qualification,” was concerned with prohibiting the hiring of persons for teaching positions who lacked minimum general qualifications, without regard to certification in any specific area. "Thus, for purposes of qualification under the statute, a teaching certificate has been equated with what can only be a requirement of qualification in the general area of teaching and not in any specific area: i.e., the possession of a 'diploma issued on the completion of a course in a state college for teachers or state teachers college of this state.’ (Education Law, § 3001, subd 2.)” (Matter of Bali v Board of Educ., supra, at 363.) In fact, appellant Winter was initially hired to teach the subject of high school business, an area in which he was certified to teach, and taught in that area continuously until respondent involuntarily reassigned him to teach secondary science.

The Board argues that regulations promulgated by the Commissioner of Education support its position that a teacher’s lack of certification in his or her assigned area renders that teacher unqualified to teach pursuant to Education Law § 3001, and thus unqualified pursuant to sections 3009 (1) and 3010 for the purpose of receiving a salary during the course of a section 3020-a disciplinary proceeding. However, consistent with the legislative purpose of ensuring that the State’s teachers are generally qualified to teach, these regulations, by their terms, only apply to the initial hiring, or to the reemployment of a teacher, neither of which is the situation here. Pursuant to the provisions of sections 3006 (3), 3009 (1) and 3010 of the Education Law, the regulations provide that, except under certain enumerated conditions, "no uncertified teacher (any professional staff member not holding a valid certificate for the area or level to be served) may be employed by a board of education for the first time” (8 NYCRR 80.18 [a] [emphasis added]). Similarly, 8 NYCRR 80.18 (b) prohibits the reemployment of an uncertified teacher except under certain conditions. Inasmuch as appellant is neither being hired for the first time, nor being reemployed, these regulations are irrelevant to the resolution of the question before us.

Finally, we note the dissent’s assertion that the respondent will prevail on the issue of whether petitioner’s suspension was proper, because the school district is not required to retain a teacher who lacks the " 'appropriate certification’ ” (dissenting opn, at 11, citing 8 NYCRR 30.11). However, it is not at all clear that Education Law § 2510 authorizes a Board such as respondent to reassign teachers to areas in which they are uncertified, and on the basis of lack of certification, to bring charges against them under section 3020-a to remove them from employment. Section 2510 provides that when a Board of Education abolishes a position, the services of the teacher having the least seniority within the particular tenure area must be discontinued, and that teacher placed on a preferred list for appointment, in order of length of service, to a then-existing or subsequently occurring vacancy in an office or position similar to the one which such person filled without reduction in salary or increment (Education Law § 2510 [2], [3]). The suggestion by the dissenters that Education Law § 2510 requires a school district to reassign a teacher whose position has been abolished to teach a subject that he is uncertified to teach finds no support in the statute. The statute does not require such a procedure, and whether it authorizes the scheme employed by respondent here is, at best, problematic. There appears to be no authority for respondent’s practice of reassigning teachers to an area in which they are uncertified, and then charging the teacher with lack of certification in order to terminate his or her services (see, e.g., Matter of Steele v Board of Educ., 53 AD2d 674, 675 [Board of Education could not circumvent the mandate of Education Law § 2510 by assigning petitioner to a position in an area of certification in which she was not likely to be certified and then dismissing her for lack of certification]).

Because there is no statutory authority to support the payless suspension of appellant pending the determination of the section 3020-a proceedings against him, we conclude that appellant is entitled to back pay from the date of his suspension and continued pay until such time as the disciplinary proceedings are concluded. Accordingly, the Appellate Division order, insofar as appealed from, should be reversed, with costs, and the judgment of Supreme Court, Dutchess County, reinstated.

Simons, J.

(dissenting). Petitioner concededly cannot teach any subject in which respondent school district has an available opening. In my view, therefore, he should not be paid during proceedings necessary to terminate his employment. Accordingly, I would affirm.

The question presented is whether the Jerry rule (Matter of Jerry v Board of Educ., 35 NY2d 534), which requires a school district to pay a suspended teacher contesting disputed charges of misconduct, should be applied to require payment of teachers suspended because they are uncertified to fill the only teaching positions available to them. Its resolution requires us to strike the proper balance between the rights of tenured teachers and the efficient and economical operation of the school system. Ruling in favor of the teachers, the majority holds that Jerry should be extended to apply to the facts of this case. I disagree and because the matter has serious fiscal and legal consequences in these distressing economic times, I set forth my reasons in detail.

The circumstances have become increasingly familiar. Respondent school district, because of declining enrollments and budgetary constraints, eliminated one business department position, all driver education classes and all in-house supervision. Because of these cuts in curriculum, the Board voted a reduction in force. Its action was specifically authorized by section 2510 of the Education Law as long as it acted in good faith for legitimate economic and educational purposes (see, Matter of Gross v Board of Educ., 78 NY2d 13, 16-17; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Young v Board of Educ., 35 NY2d 31).

Petitioner was certified to teach business and driver’s education. Inasmuch as the driver’s education classes were eliminated and the remaining business courses were assigned to a more senior teacher, there remained no positions available for which petitioner was qualified. Respondent could not summarily discontinue his services, however: section 2510 (2) of the Education Law authorized petitioner to "bump” a teacher having less seniority within his tenure area, i.e., the general secondary school area. There were less senior teachers within his tenure area teaching subjects which petitioner was not certified to teach. Consequently, respondent had no choice but to discontinue a tenured and certified secondary science teacher, to assign petitioner to teach science, though he was not certified to teach the subject, and then to bring charges to remove him because he was incompetent (see, Matter of Lynch v Nyquist, 41 AD2d 363, 365, affd on opn below 34 NY2d 588).

Respondent suspended petitioner but it could remove him only pursuant to the formal procedure set forth in section 3020-a of the Education Law and, accordingly, it instituted those proceedings. While the proceedings are pending, the Board will be required to pay a substitute to teach the subject assigned to petitioner. The court now holds that during this period, while petitioner is suspended, it must pay petitioner’s salary as well. According to an investigative report of the New York State School Boards Association contained in its amicus brief, the proceedings could last as long as two years and add litigation costs of approximately $100,000. Manifestly, the suspended teacher has no incentive to hasten this process or minimize its cost. Thus, what began as an effort by respondent to save public resources and to promote efficient, productive schools has produced neither, at least for the immediate future. Salary expenses have been doubled, litigation expenses incurred and science students will be taught by substitute teachers. One might reasonably ask what rule of law requires such waste of educational resources.

The authority relied upon is Matter of Jerry v Board of Educ. (35 NY2d 534, supra). In that case, we considered two appeals involving charges of teacher misconduct filed pursuant to section 3020-a of the Education Law. A closely divided court held that absent specific statutory authorization, a teacher charged with misconduct could not be suspended without pay pending disciplinary hearings (id., at 542).

The Jerry decision addressed proceedings involving contested charges which in one case dealt with a teacher’s use of excessive physical force on students and in the other dealt with a teacher’s improper sexual intimacies with an 18-year-old student. In view of the charged misconduct, a proper concern for possible harm to students made the teachers’ suspension necessary but we required that they be paid during removal hearings because they had not yet been proved guilty. The decision reflected the notion that teachers should not be punished by loss of pay unless and until it was shown that they were guilty of the alleged charges, a view consistent with traditional notions of fairness explicit in the criminal law and the Civil Service Law (see, CPL 300.10 [2]; Civil Service Law § 75 [3]).

No similar concerns are involved in cases involving uncertified teachers. They must be suspended for the students’ sake because they are unable to teach the subject matter. But there is no doubt about the outcome of the proceedings: respondent will prevail because, under the Rules of the Board of Regents, the school district is not required to retain a teacher who lacks the "appropriate certification” (8 NYCRR 30.11). Concededly, petitioner lacks such certification here, but the fact is easily established by reference to the records of the Education Department in any case. Although procedural regularity requires the School Board to establish that uncontested fact in a section 3020-a hearing, the Board should not be required to pay petitioner while the proceedings are pending when he is not competent to teach any class available to him. The majority’s decision does just that, however; it compels the School Board to pay a teacher who is not capable of performing any educational services for the district.

We have previously recognized that a School Board could suspend an uncertified teacher without pay in certain instances and that rule should be applied here. Following Jerry (supra), we held that suspension without pay was authorized if the teacher was uncertified in any area because the teacher was "unqualified” under Education Law § 3001 (2); § 3009 (1) (Matter of Meliti v Nyquist, 41 NY2d 183; Matter of Smith v Board of Educ. and Matter of Cutler v Board of Educ., 65 NY2d 797). True, those decisions rested on the Jerry formulation; suspension without pay was warranted because there was statutory authority to support the result. The requirement has been imposed by judicial decision, however, and we should not extend it to cover these facts. There is no principled basis to permit suspension without pay of a teacher not competent to fill any teaching position but forbid suspension without pay of a teacher not competent to fill any teaching position available. I would not, therefore, require respondent to pay petitioner here.

There can be no question about the desirability of reasonable rules promoting teachers’ job security. They enable school districts to maintain a stable and experienced staff and help attract competent people to the teaching profession. However, local school authorities possess substantial leeway to administer their affairs and reductions in force have been recognized by the Legislature and this Court as necessary steps to promote efficiency and economy in a school system (see, Education Law § 2510; Matter of Gross v Board of Educ., 78 NY2d 13, supra). The circumstances presented here will recur increasingly and, as it now stands, in these difficult choices involving teacher benefits and fundamental educational concerns, teachers are to be unduly preferred over the efficient use of finite public resources to effectively educate our children.

Because the Court is not compelled to apply the Jerry rule to cases which do not involve allegations of teacher misconduct, and because the majority’s decision extending it to this case seriously constricts a School Board’s ability to manage its affairs efficiently and economically, I vote to affirm.

Chief Judge Wachtler and Judges Kaye and Hancock, Jr., concur with Judge Alexander; Judge Simons dissents and votes to affirm in a separate opinion in which Judges Titone and Bellacosa concur.

Order, insofar as appealed from, reversed, etc.

      . It appears that the arbitration is still pending and undetermined.

      . Whether the School Board’s action in reducing its teaching staff for economic and educational reasons is authorized by Education Law § 2510, so long as it "acted in good faith” (dissenting opn, at 9) is not relevant to the issue before us. Rather, the question we must determine is whether explicit statutory authorization exists which entitles respondent to withhold compensation from a certified, tenured teacher during the pendency of disciplinary proceedings under Education Law § 3020-a (Matter of Jerry v Board of Educ., 35 NY2d 534). Moreover, nothing in Jerry supports the dissent’s assertion that our holding rested on "traditional notions of fairness explicit in the criminal law and the Civil Service Law,” or on the ground that "teachers should not be punished by loss of pay unless and until it was shown that they were guilty of the alleged charges” (dissenting opn, at 11).

      . Moreover, the Rules of the Board of Regents cited by the dissent provide, as pertinent, that:
      "Nothing herein contained shall be construed to authorize * ** * a board of education or board of cooperative educational services to place or retain an individual in a position for which such individual does not possess appropriate certification in accordance with the provisions of Part 80 of the Regulations of the Commissioner of Education”.
      (Rules of Board of Regents, 8 NYCRR 30.11 [emphasis added].) Since the petitioner here was placed in a position for which he does not possess the appropriate certification, it would appear that this regulation refutes, rather than supports the contentions of the dissent.