text:
    The People of the State of New York, Appellant, v Demetrio Cruz, Respondent.
    Argued November 18, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Susan K. Wasserman, Peter L. Zimroth and Robert M. Pitler of counsel), for appellant.

      Hal R. Lieberman and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

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

The observations made by the police and the defendant’s furtive movements as the police approached were sufficient to warrant inquiry (People v De Bour, 40 NY2d 210). Under the circumstances we cannot say that it was unreasonable for the officers to focus their inquiry on the contents of the defendant’s hand and therefore to ask that he remove the bottle which he held as they approached. Removal of the bag of heroin from the defendant’s pocket was reasonably contemporaneous with his arrest for possession of the heroin previously found in his hand (People v Evans, 43 NY2d 160). Accordingly, the trial court could have properly concluded that the motion to suppress the evidence should have been denied.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    William B. Larrabee, as Administrator of the Estate of Damon S. Larrabee, Deceased, Appellant, v Marine Midland Bank-Central, Respondent.
    Argued November 15, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      Walter E. Farnholtz for appellant.

      Richard W. Cook for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (55 AD2d 1018).

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


text:
    The People of the State of New York, Respondent, v Alvin Rudasil, Appellant. The People of the State of New York, Respondent, v Cornell Miller, Appellant.
    Argued November 18, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      Laurence Jacobson for Alvin Rudasil, appellant.

      Joel S. Ezra for Cornell Miller, appellant.

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

Orders affirmed on the opinion by Mr. Justice Samuel J. Silverman at the Appellate Division in People v Miller (52 AD2d 425) (cf. People v Smith, 42 NY2d 961).

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


text:
    The People of the State of New York, Respondent, v Duane Selby, Appellant.
    Argued November 17, 1977;
    decided December 15, 1977

      APPEARANCES OF COUNSEL

      Nicholas M. Soriano for appellant.

      Carl A. Vergari, District Attorney (Vincent L. Leibell, III, of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed on the memorandum at the Appellate Division (53 AD2d 878).

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


text:
    Thalia Corcillo, Respondent, v Martut, Inc., et al., Defendants, and Erhal Holding Corp., Appellant.
    Submitted December 5, 1977;
    decided December 15, 1977
   Motion for a stay denied without prejudice to appellant’s statutory remedy for an automatic stay pursuant to CPLR 5519 (subd [a], par 6). (See Bass v Bass, 296 NY 831; Cohen and Karger, Powers of the New York Court of Appeals, § 183, p 685.)


text:
    In the Matter of Michael E. Thurston, Appellant, v New York State Department of Education et al., Respondents.
    Submitted November 28, 1977;
    decided December 15, 1977
   Motion for leave to appeal dismissed upon the ground that the prior application for permission to appeal, made to the Appellate Division, was untimely (Schwartz v National Computer Corp., 38 NY2d 800; Matter of New York City Tr. Auth. v State Div. of Human Rights, 36 NY2d 872).


text:
    The People of the State of New York, Respondent, v Larry Gurley, Appellant.
    Submitted November 21, 1977;
    decided December 15, 1977
   Return of remittitur is requested and, when returned, it will be amended by adding thereto the following: "The court considered and rejected appellant’s contention that he was denied a fair trial due to inadequacy of counsel.” [See 42 NY2d 1086.]


text:
    Ettore Tomassi et al., Respondents, v Town of Union, Appellant. Ettore Tomassi et al., Respondents, v Louis Forbidussi et al., Appellants. (And Three Additional Actions.)
    Submitted November 7, 1977;
    decided December 15, 1977
   Motions by appellants Forbidussi and Tanzini for leave to appeal granted.


text:
    Shande Weiss, Formerly Shande Schwartz, Appellant, v Ross Rental Services, Inc., et al., Respondents, et al., Defendant. (Action No. 1.) Miriam Perlstein, an Infant, by Marcus Perlstein, Her Father and Guardian, et al., Plaintiffs, v Sarah Zakheim et al., Defendants. (And Four Additional Titles.) (Consolidated Action No. 2.)
    Submitted November 7, 1977;
    decided December 15, 1977
   Motion for an order transferring to the Court of Appeals an application for leave to appeal to the Court of Appeals purportedly pending before the Appellate Division, Second Department, dismissed upon the ground that it does not lie.


text:
    In the Matter of Tandem Holding Corp., Respondent, v Board of Zoning Appeals of the Town of Hempstead, Appellant.
    Argued November 14, 1977;
    decided December 19, 1977
    APPEARANCES OF COUNSEL

      W. Kenneth Chave, Jr., Town Attorney (Eugene Kirby Ferencik of counsel), for appellant.

      Vincent J. De Rosa for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division reversed, with costs, and the determination of the Board of Zoning Appeals reinstated.

The determination of the board, that petitioner’s application did not nor could not, through the imposition of reasonable conditions, meet the standards in the ordinance governing the granting of special exceptions, is sufficiently supported in the record. There was proof that development of a private parking lot in a residential district abutting, a proposed shopping center in a business district would significantly alter the character and quality of the surroúnding residential area, diminish property values, and increase traffic, congestion.

Of course, characterization of a parking lot as a special use or exception permitted with board approval precludes the board from arbitrarily denying applications, and denial solely because there is a general objection to the special use or éxception would be arbitrary (Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028; see Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238, 243-245). It does not follow, however, that requests for special exceptions must always be granted subject only to the imposition of reasonable conditions.

Entitlement to a special exception is not a matter of right (Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20, 24). The stated standards in the ordinance guiding the board’s consideration of special exception applications condition availability of a special exception, and compliance with those standards must be shown before any exception can be secured (e.g., Matter of Mobil Oil Corp. v Oaks, 55 AD2d 809; Matter of C & G Developers v Granito, 53 AD2d 612; Matter of Klein v Seigel, 47 AD2d 924; see 2 Anderson, New York Zoning Law and Practice [2d ed], § 19.01; 2 Rathkopf, Law of Zoning and Planning, pp 54-1-54-30; see, also, ALI, Model Land Development Code, § 2-207, subd [2]). In the North Shore case (supra), resolution of the problem was both simpler and different from this case only because the ordinance there involved stated no elaborated standards.

One caveat is appropriate. Standards governing issuance of special exceptions may not be so general or tautological as to allow unchecked discretion on the part of the zoning board (see 2 Anderson, New York Zoning Law and Practice [2d ed], § 19.11; 2 Rathkopf, Law of Zoning and Planning, pp 54-14-54-30). No such infirmity has been demonstrated to exist in the instant ordinance.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v John McGrath, Appellant.
    Argued November 18,1977;
    decided December 19, 1977
    APPEARANCES OF COUNSEL

      Donald H. Zuckerman and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (William G. Schrager of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed.

Defendant pleaded guilty to robbery in the third degree in 1949, and has long ago served the indefinite sentence then imposed. He is able to appeal by virtue of resentence obtained under the rule in People v Montgomery (24 NY2d 130). He offers a melange of arguments based on State and Federal cases in which guilty pleas have been set aside.

His guilty plea falls within none of the several precedents relied upon. Defendant was represented by counsel at all times. He had had prior criminal court experience, including that of pleading guilty. In the several motions he has made in the nature of coram nobis he has been uniformly unsuccessful. The crime with which he was charged, robbery in the second degree, and the lesser crime of robbery in the third degree to which he pleaded guilty, consist of simple elements understandable for pleading purposes by laymen in every material way. At the time of the plea there was no assertion or intimation casting doubt on defendant’s guilt of the crime charged. Most novel and ironic is the contention, among others offered by defendant, that he was not advised in advance of pleading guilty that the 1949 conviction would provide a predicate for a more severe sentence if he ever would, as indeed he did, commit another felony, for which he was sentenced in 1954. The rules set forth in People v Nixon are applicable (21 NY2d 338, 350, 353-356, cert den 393 US 1067).

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

Order affirmed in a memorandum.


text:
    Vivian M. Traendly, Respondent, v State of New York, Respondent. Mayflower Restaurants of Central Park Avenue, Inc., Appellant, v State of New York, Respondent.
    (Claim No. 52303.)
    (Claim No. 50821.)
    Argued October 13, 1977;
    decided December 19, 1977

      APPEARANCES OF COUNSEL

      Paul A. Feigenbaum, Richard L. Bond and Allen H. Brill for appellant.

      Louis J. Lefkowitz, Attorney-General (J. Lawson Brown and Ruth Kessler Toch of counsel), for State of New York, respondent.

      Richard J. Leahy for claimant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is affirmed, with costs. We note, however, that the only issue decided on this appeal is the allocation of the award owed by the State to tenant and landlord. The parties had an opportunity to litigate this issue, and we find no error in the disposition of that issue. We do not determine the rights and obligations of the landlord and the tenant, as prescribed in subdivision (c) of paragraph 26 of the lease with respect to the application of the proceeds of the award.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Eugene Simmons, Appellant.
    Argued November 18, 1977;
    decided December 19, 1977

      APPEARANCES OF COUNSEL

      Paul F. McAloon and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (David I. Pincus and Peter L. Zimroth of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The suppression court found as a fact that defendant did not know that the four plainclothesmen alighting from the taxicab were police officers. Additionally there is no evidence that when defendant ran back into the building and up the stairs he was aware that he was being followed by anyone, much less a police officer. It cannot be said, therefore, that there was any intrusion whatsoever of defendant’s privacy within the reach of the constitutional provisions against unreasonable search and seizure until after the officer following him had seen the barrel of the shotgun beneath defendant’s coat as defendant sought to remove the coat. This observation, together with the subsequent sight of defendant as he reached the roof landing, throwing the shotgun through the window onto the roof, provided unquestionable probable cause for defendant’s arrest and the search of his person incident thereto.

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

Order affirmed in a memorandum.


text:
    Hartford Accident and Indemnity Company, Respondent, v Caroline Smith, Individually and as Mother and Natural Guardian of Enid Smith, an Infant, and Another, Respondent. Caroline Smith, Individually and as Mother and Natural Guardian of Enid Smith, an Infant, and Another, Respondent, v Barbara J. Lusk, Appellant, et al., Defendant.
    Argued November 15, 1977;
    decided December 19, 1977

      APPEARANCES OF COUNSEL

      Joseph J. Buderwitz, Jr., and Alfred E. Page, Jr., for appellant.

      Thomas N. O’Hara for petitioner-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (54 AD2d 958). In view of this disposition it is not necessary to consider the issue presented in Phoenix Ins. Co. v Guthiel (2 NY2d 584).

Concur: Chief Judge Breitel and Judges Jasen, Wachtler, Fuchsberg and Cooke. Judges Gabrielli and Jones concur in the following memorandum: We concur in result only. Rather than requiring the courts below to strain their powers of imagination and to stretch familiar principles of law to reach an equitable result by finding that title has not passed (when in fact in any other setting it would be held that a sale had actually occurred and that title had passed), we would overrule the plurality opinion in Phoenix Ins. Co. v Guthiel (2 NY2d 584). In our view where the insured is to be estopped from denying ownership and, as a result, is to be held liable, we would hold that the coverage under his policy should extend to such liability.


text:
    Nationwide Mutual Insurance Company, Respondent, v Liberty Mutual Insurance Company et al., Respondents, and Allstate Insurance Company, Appellant.
    Argued November 15, 1977;
    decided December 19, 1977

      APPEARANCES OF COUNSEL

      Asher Marcus and Peter James Johnson for appellant.

      William F. Larkin for Nationwide Mutual Insurance Company, respondent.

      Dale M. Thuilley for Florence Waterson and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Oliver C. Sutton at Supreme Court, New York County. In view of the affirmed finding that no sale was effectuated, it is not necessary to consider the issue presented in Phoenix Ins. Co. v Guthiel (2 NY2d 584).

Concur: Chief Judge Breitel and Judges Jasen, Wachtler, Fuchsberg and Cooke. Judges Gabrielli and Jones concur in the following memorandum: We concur in result only. Rather than requiring the courts below to strain their powers of imagination and to stretch familiar principles of law to reach an equitable result by finding that title has not passed (when in fact in any other setting it would be held that a sale had actually occurred and that title had passed), we would overrule the plurality opinion in Phoenix Ins. Co. v Guthiel (2 NY2d 584). In our view where the insured is to be estopped from denying ownership and, as a result, is to be held liable, we would hold that the coverage under his policy should extend to such liability.


author: Fuchsberg, J. (dissenting).

text:
    In the Matter of Herbert D. Klein et al., Appellants, v State Tax Commission, Respondent.
    Argued November 17, 1977;
    decided December 19, 1977

      APPEARANCES OF COUNSEL

      Frank G. Opton and David Werchen for appellants.

      Louis J. Lefkowitz, Attorney-General (Francis V. Dow and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, on the memorandum at the Appellate Division (55 AD2d 982).

Concur: Judges Gabrielli, Jones, Wachtler and Cooke. Judge Fuchsberg dissents and votes to reverse in the following opinion in which Chief Judge Breitel and Judge Jasen concur.

Fuchsberg, J. (dissenting).

I would reverse the judgment of the Appellate Division and annul the determination of the State Tax Commission essentially for the reasons expressed in Mr. Justice Larkin’s dissenting memorandum with the following caveat.

The statement in Matter of Newcomb (192 NY 238, 250) that "[l]ess evidence is required to establish a change of domicile from one state to another than from one nation to another” must be deemed to have lost much, if not most, of its original vitality with the passage of time (but see Matter of Bodfish v Gallman, 50 AD2d 457, 458). Newcomb was decided in 1908; in supersonic 1977, it can no longer be said that a change of domicile to Europe is any more difficult or less probable than one to Alaska or Hawaii.

Relieved of this "heavier burden”, it is even more evident that petitioners effected a bona fide change of domicile (citizenship is not involved here) and that the State Tax Commission’s determination to the contrary is not supported by substantial evidence (CPLR 7803, subd 4). The "mere scintilla of evidence” upon which it relied "is not sufficient to support a finding upon which legal rights and obligations are based” (Matter of Stork Rest, v Boland, 282 NY 256, 273-274 [Lehman, Ch. J.]).

Judgment affirmed, etc.


text:
    Bruce C. Mace, Appellant, v Ryder Truck Rental, Inc., Respondent. Joanne Mace, Appellant, v Ryder Truck Rental, Inc., Respondent.
    Argued November 11, 1977;
    decided December 19, 1977

      APPEARANCES OF COUNSEL

      Thomas E. Myers and John J. Dee for appellants.

      Robert A. Small for respondent.
   OPINION OF THE COURT

Order reversed, with costs, for reasons stated in the dissenting opinions at the Appellate Division by Presiding Justice Harold E. Koreman and Mr. Justice Michael E. Sweeney and the case remitted to the Appellate Division, Third Department, for review of the facts (CPLR 5613).

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


text:
    State of New York, Appellant, v County of Sullivan et al., Respondents.
    Argued November 16, 1977;
    decided December 19, 1977

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Joseph F. Gibbons and Ruth Kessler Toch of counsel), for appellant.

      Jed B. Wolkenbreit, Robert P. Roche and William C. Rosen for County of Sullivan, respondent.

      Bertram W. Eisenberg for Town of Thompson, respondent.
   OPINION OF THE COURT

Order reversed, with costs, motion to dismiss denied, and complaint reinstated on the dissenting opinion by Presiding Justice Harold E. Koreman at the Appellate Division (54 AD2d 33-35).

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


author: Chief Judge Breitel (dissenting).

text:
    The People of the State of New York, Respondent-Appellant, v William Court, Appellant, and Fred Weber, Frank Panza and Richard Burke, Respondents.
    Argued November 14, 1977;
    decided December 19, 1977

      APPEARANCES OF COUNSEL

      Arthur J. Spring and Thomas P. Curtin for appellant.

      Carl A. Vergari, District Attorney (B. Anthony Morosco and Janet Cunard of counsel), for respondent-appellant.

      Andrew W. Tully, Jr., for Fred Weber, respondent.

      Dante S. Alberi and Dante J. Alberi for Frank Panza and Richard Burke, respondents.
   OPINION OF THE COURT

Order affirmed on the memorandum at the Appellate Division (52 AD2d 891).

Concur: Judges Jasen, Gabrielli, Wachtler and Cooke. Chief Judge Breitel dissents in part and votes to modify by dismissing the indictment as to defendant Court in the following opinion in which Judges Jones and Fuchsberg concur.

Chief Judge Breitel (dissenting).

I dissent and vote to modify the order of the Appellate Division to dismiss the indictment against defendant Court. On his own testimony, the Grand Jury witness Tripodi, the only witness to testify against Court, was guilty of bribery, and therefore an accomplice. Since there was no corroboration of the accomplice testimony, the indictment should be dismissed.

The contention that Tripodi, an admitted policy operator, was the victim of larceny by extortion, and hence not guilty of bribery, is not acceptable. It is argued that Tripodi, who said he had been paying for police protection since the 1950’s, paid the police because he was in fear that the police would enforce the law. But anyone paying bribes to policemen for "protection” operates under that fear. Otherwise, there would be no reason to pay the bribe. More than fear is required to make a case of larceny by extortion.

What is required, at least, is some form of threat to take adverse action, including to enforce the law, if money is not paid. The threat may be a subtle one, as in People v Dioguardi (8 NY2d 260, 265-268), involving veiled threats to insure continued ruinous labor picketing unless a payoff were made, but there must be a threat of some kind. In this case, there was none, or at least none indicated in the Grand Jury testimony.

About other police officer defendants, not involved on this appeal, there was testimony by other gamblers, some of it relating to threats made by the police. About Court, however, there was testimony only by Tripodi, and Tripodi never said he was threatened. In fact, he never testified about the substance of any conversations with Court at all, except in relation to an isolated incident, some time between May, 1968 and June, 1971, involving not the payoffs for police protection, but Tripodi’s failure to pay off on an alleged bet made by Court. This transaction within a three-year period occurred during a larger period in which he had been paying for police protection since the 1950’s. There is not, therefore, enough to establish larceny by extortion. Involved instead was a simple protection scheme—bribery, willfully paid. Tripodi, as a briber, was an accomplice of the bribe receiver and nothing more (CPL 60.22; see People v Mullens, 292 NY 408, 414). Corroboration of Tripodi’s testimony, therefore, was required to sustain the indictment, and corroboration there was not.

Corroboration rules, if they retain any usefulness, are most justified in cases like this one. Unco-operative, or no longer cooperative, police officers are especially susceptible to frame-ups by lawbreakers faced with prosecution. Permitting evasion of the corroboration rules by recourse to the theory that the policeman was extorting money from the gambler, even without any evidence of threats made by the officer, ignores the entire rationale for the corroboration rule.

Accordingly, I dissent, and vote to dismiss the indictment against defendant Court.

Order affirmed, etc.


author: Cooke, J. (concurring).

text:
    John H. Mulroy, as County Executive and Chief Budget Officer of the County of Onondaga, Appellant-Respondent, v Hugh L. Carey, as Governor of the State of New York, et al., Respondents, and Richard A. Hennessy, Jr., as District Attorney of the County of Onondaga, Respondent-Appellant.
    Argued November 16, 1977;
    decided December 19, 1977

      APPEARANCES OF COUNSEL

      Ralph I. Greenhouse, County Attorney (Rudolph V. Parr,

      Diané E. Tucker, Peter R. Eriksen, John R. Voninski and Raymond A. Meier of counsel), for appellant-respondent.

      Richard A. Hennessy, Jr., District Attorney (John A. Orando, William J. Fitzpatrick and Bryan R. Hedges of counsel), respondent-appellant pro se.

      Louis J. Lefkowitz, Attorney-General (Ruth Kessler Toch, Jean M. Coon, Peter D. Andreoli, Norman Hatt and Henry De Cotis of counsel), respondent pro se, and for remaining respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, without costs, for the reasons stated in the opinion by Mr. Justice G. Robert Witmer at the Appellate Division (58 AD2d 207).

In affirming, no view is expressed whether in any or all circumstances the exercise of the executive power to supersede an elected District Attorney would be beyond judicial review or correction in a direct or collateral action or proceeding brought or defended by the county or the elected District Attorney involved.

Cooke, J. (concurring).

I vote to affirm, on the opinion of

Mr. Justice G. Robert Witmer at the Appellate Division, and therefore concur in the result.

The ultimate paragraph of the memorandum of the majority causes concern. It is respectfully submitted that its enunciation is not only gratuitous and unnecessary for decision but, more importantly, creates uncertainty in the law and invites challenges to the duty conferred constitutionally upon the Governor that he "shall take care that the laws are faithfully executed” (NY Const, art IV, § 3) and the implementation of that duty in the Executive Law, requiring the Attorney-General to conduct such proceedings before a Supreme Court and Grand Jury as the Governor shall direct concerning investigation of criminal activities and to supersede the District Attorney in so doing (§ 63, subd 2).

Indeed, in the opinion relied upon by the majority, that of Justice Witmer (58 AD2d 207), it was stated at pages 214-215:

"In People v Kramer (33 Misc 209, 219, supra) the court said, 'The law thus confers upon the Governor a discretion, and when he has reason to doubt that the laws are being executed, I know of no judicial method by which his reason may be questioned or measured. It is sufficient if he, in the exercise of the discretion vested in him, directs the Attorney-General to appear and prosecute any actions, civil or criminal, in which the People are interested.’ In People ex rel. Saranca Land & Timber Co. v Extraordinary Special & Trial Term of Supreme Ct. (220 NY 487), in considering the exercise of a gubernatorial direction in a similar context, Judge Cardozo wrote (p 491), 'The relator insists that an extraordinary term is needless. That is a question for the governor, and no one else. We cannot review the exercise of his discretion [citations omitted]. There may be reasons for urgency which we cannot know. The governor is not required to disclose them. He may have thought that the public interest demands the expeditious determination of actions affecting the title of the state. But the whole subject is beyond our province. The power and the responsibility are his, and his only.’ In Gaynor v Rockefeller (21 AD2d 92, 98, affd 15 NY2d 120, 131) Justice Stevens wrote in the Appellate Division, 'The * * * Governor of the State "is immune from interference by judicial process and free from judicial control in his performance of executive powers” ’, and in the Court of Appeals Judge Fuld wrote, 'It is the settled policy of the courts not to review the exercise of discretion by public officials in the enforcement of State statutes, in the absence of a clear violation of some constitutional mandate.’

* * *

"No instance has been cited to this court in which over the history of the existence of this power a Governor has abused his authority in superseding a District Attorney. If such abuse is found to occur, the People and the Legislature are the ones to fashion a means of restricting the Governors’ use of such power. On this record, the court should not attempt to do so.” (Emphasis supplied.)

Even more basically, the pattern of our State government embodies the fundamental constitutional principle of the separation of powers among three departments of government (see Matter of Gottlieb v Duryea, 38 AD2d 634, affd 30 NY2d 807, cert den 409 US 1008), and under said principle there is no warrant for our restriction of the scope of legislation in a manner that would thwart the constitutional and statutory policy or engraft restrictions on the executive department where none exist (see Matter of People [Lawyers Westchester Mtge. & Tit. Co.], 288 NY 40, 50; 9 NY Jur, Constitutional Law, § 118). The separation of powers doctrine contemplates that the voters or their elected representatives will check any abuse by the Executive through the political process—by means of elective change, constitutional amendment or corrective legislation. When and if these processes are an inadequate means of fashioning a timely remedy to combat an abusé of the Governor’s power to order a superseder, unquestionably the courts will act to ensure compliance with the Constitution and the laws of the State (cf. Youngstown Co. v Sawyer, 343 US 579). No such circumstance is present here, and to the extent that the majority may be read as suggesting that the court may interfere when other remedies exist, this view contemplates an unwarranted intrusion, violative of the doctrine of separation of powers.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Cooke concurs in result in a separate opinion.

Order affirmed, without costs, in a memorandum.


text:
    Hartford Accident & Indemnity Co., Inc., Respondent-Appellant, v Canron, Inc., Respondent, and Shahmoon Industries, Inc., Appellant-Respondent.
    Argued November 15, 1977;
    decided December 19, 1977

      APPEARANCES OF COUNSEL

      Milton Thurm, Michael Lipson and Maria S. Rose for appellant-respondent.

      Bernard Meyerson and Herman B. Zipser for respondent-appellant.

      William J. Dean and John C. Mueller for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to respondent Canron, Inc., against appellants.

Rusciano Construction Corp., plaintiffs subrogor, purchased pipes from the Warren Pipe & Foundry Division of Shahmoon Industries, Inc., under a 1968 purchase order which set forth a provision limiting any action by either party for breach of the acknowledgment (expressing their complete agreement) to within 13 months after a cause of action accrued. Certain pipe, the subject of this suit, was installed by Rusciano in a Yonkers street on or about January 6, 1970 and, of necessity, must have been delivered prior to that time. That pipe ruptured on October 21, 1971. On April 24, 1970, in the interval between installation and break, defendant Canron, Inc., acquired from defendant Shahmoon Industries, Inc., certain but not all of the assets of the Warren Pipe & Foundry Division.

This action for damages arising from the pipe rupture, allegedly "caused by the negligence of the defendants, or either of them, and breach of warranty for fitness and use”, was commenced on August 17, 1973. Special Term determined that, regardless of whether the breach of warranty occurred upon delivery of the pipe or when it burst, the time limitation applied and any action for such a breach was barred. The complaint was viewed as combining two causes of action and it was stated that Shahmoon was the manufacturer and seller of the pipe which broke open and that the later acquisition by Canron of some of the physical assets of Shahmoon does not transfer negligence liability. Plaintiffs complaint was dismissed with leave to serve an amended complaint stating a cause of action in negligence alone against only defendant Shahmoon. The Appellate Division affirmed for the reasons stated by Special Term.

It is noted, inter alia, that the acquisition agreement between Shahmoon and Canron reveals no express or implied assumption of tort liability by Canron, there was no consolidation or merger of the seller and purchaser, the purchasing corporation was not a mere continuation of the selling corporation and there has been no proof or allegation of fraud in the acquisition transaction. Without staking out the perimeters of tort liability for a successor entity and assuming that an underlying case of such liability has been made out in favor of plaintiff, none of the bases usually urged for responsibility by the successor are present here.

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

Order affirmed, with costs to defendant-respondent Canron, Inc., against appellants in a memorandum. Question certified answered in the affirmative.


text:
    Frank D. Gilroy, Appellant, v American Broadcasting Company, Inc., Formerly Known as American Broadcasting-Paramount Theatres, Inc., et al., Respondents.
    Submitted November 21, 1977;
    decided December 19, 1977
   Motion by plaintiff for leave to cross-appeal dismissed upon the ground that plaintiff is not a party aggrieved (see, e.g., Enslein v Hudson & Manhattan R. R. Co., 5 NY2d 778).


text:
    Frieda Lane et al., Appellants, v Ewald B. Nyquist, Individually and as New York State Commissioner of Education, et al., Respondents.
    Submitted December 12, 1977;
    decided December 19, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the order 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, § 76, p 330).


text:
    In the Matter of Kim Marie J. (Anonymous), Also Known as Kim Marie V. (Anonymous). Rockland County Department of Social Services, Respondent; Nancy V. (Anonymous) et al., Appellants.
    Submitted November 29, 1977;
    decided December 19, 1977
   Motion for leave to appeal granted.


text:
    In the Matter of Betty A. Petrillo, Appellant, v Charles Bates, as Commissioner of Social Services of the County of Westchester, et al., Respondents.
    Submitted October 24, 1977;
    decided December 19, 1977
   Motion for leave to appeal dismissed as untimely upon the ground that neither the notice of motion nor the supporting papers were filed with the court until after the August 15, 1977 statutory return date of the motion (see CPLR 5513, subd [c]; Nineteenth Ann Report of NY Judicial Council, 1953, p 86; cf. CPLR 5516).


text:
    Salvatore Sedita, as President of Buffalo Council of Supervisors and Administrators, Appellant, v Board of Education of the City of Buffalo, Respondent; Jane McDevitt, Intervenor-Respondent.
    Argued November 17, 1977;
    decided December 21, 1977

      APPEARANCES OF COUNSEL

      Richard Lipsitz, Frank S. Kedzielawa and Stuart M. Pohl for appellant.

      Leslie G. Foschio, Corporation Counsel (Anthony C. Vaccaro of counsel), for respondent.

      Lauren D. Rachlin and Norman S. Rosenberg for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

It is the settled practice of this court not to decide questions rendered academic by a change in circumstances subsequent to a determination of a court below. (Town of Greenburgh v Board of Supervisors of Westchester County, 23 NY2d 732.) Since the contested position of supervisor of personnel with respondent board of education has been lawfully abolished, there is no longer a justiciable controversy before us. To assert that grievant Sodaro might be entitled to backpay if this appeal were to be decided favorably to appellant Buffalo Council of Supervisors and Administrators (BCSA) and the case referred back to arbitration does not warrant our consideration of this purely hypothetical question.

While we have on occasion decided questions which, even though moot as between the parties, affect the entire State, or where the issue is likely to arise with frequency, no such showing has been made here. (Matter of Adirondack League Club v Board of Black Riv. Regulating Dist., 301 NY 219.)

Although the Appellate Division properly held the case moot, it nevertheless reached issues, the consideration of which was precluded because of mootness. Accordingly, the order of the Appellate Division should be reversed and the case remitted to Special Term, Erie County, to dismiss the proceeding as moot.

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

Order reversed, without costs, and the matter remitted to Supreme Court, Erie County, with directions to dismiss the proceeding as moot, in a memorandum.


author: Jones, J. (dissenting).

text:
    In the Matter of Edward Arnold, Appellant, v James Reed, as Director of the Monroe County Department of Social Services, et al., Respondents.
    Argued November 9, 1977;
    decided December 21, 1977

      APPEARANCES OF COUNSEL

      Ian C. De Waal for appellant.

      Charles G. Porreca and Charles G. Finch for James Reed, respondent.

      Louis J. Lefkowitz, Attorney-General (Maurice K. Peaslee and Jean M. Coon of counsel), for Stephen Berger, Acting State Commissioner of Social Services, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the petition granted.

In view of our holding in Matter of Lee v Smith (43 NY2d 453; decided herewith) that subdivision (a) of section 158 of the Social Services Law is unconstitutional insofar as it bars SSI recipients from obtaining home relief (see L 1974, ch 1080, § 2), it is unnecessary to consider whether the commissioner acted properly in determining that the petitioner was an SSI recipient within the meaning of subdivision (a) of section 158, as amended, because of his status as an "essential person” under the SSI program.

Jones, J. (dissenting).

For the reasons stated in the memorandum opinion at the Appellate Division in this case and in my dissent in Matter of Lee v Smith (43 NY2d 453; decided herewith), I would affirm the order of the Appellate Division. That the commissioner appears prospectively to have modified his interpretation does not serve to vitiate his former determination which was in effect during the very brief period involved in this case.

Judges Gabrielli, Wachtler, Fuchsberg and Cooke concur; Judge Jones dissents and votes to affirm in a memorandum in which Chief Judge Breitel and Judge Jasen concur.

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


text:
    Helen J. Steiner, Appellant, v Harry Wenning, Respondent.
    Argued October 3, 1977;
    decided December 21, 1977
    APPEARANCES OF COUNSEL

      Helen J. Steiner, appellant pro se.

      Roger A. Goodnough and Joseph A. Bergadano for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, and the motion to dismiss denied.

The complaint in this action alleged that the owner had made a contract with the architect for professional services to be rendered in connection with the design and construction of a one-family home with a copy of contract attached; that the architect had negligently and carelessly performed his obligations under the contract; that the work had not been properly done or completed; and that in consequence of costs to cure and to complete, the owner had sustained damages in the amount of $35,000. In an extended and detailed bill of particulars the owner listed the items of default and damage. The answer in addition to a general denial pleaded the three-year Statute of Limitations.

On trial, after the jury had been drawn but before the introduction of evidence, plaintiffs attorney moved to amend the complaint, described as "sounding in tort and in contract”, to "sound in contract instead of tort”. Defendant’s counsel cross-moved to dismiss the complaint. The trial court denied the motion to amend and granted the motion to dismiss. The Appellate Division, by a divided court, affirmed.

There should be a modification. We cannot say that the denial of the motion to amend, addressed to the discretion of the trial court, after trial had opened and more than five years after the action had been commenced, constituted an abuse of discretion as a matter of law.

The complaint, however, without amendment stated a good cause of action in contract and sought no greater recovery than would be allowed under the law of damages with respect to contract liability. It was accordingly error to apply the three-year Statute of Limitations and the complaint should not have been dismissed (Sears, Roebuck & Co. v Enco Assoc., 43 NY2d 389 [decided herewith]).

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

Order modified, with costs to appellant, in accordance with the memorandum herein ancj, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Leroy Kinlock, Appellant.
    Argued November 18, 1977;
    decided December 21, 1977

      APPEARANCES OF COUNSEL

      Susan E. Hofkin, William E. Hellerstein and William J. Gallagher for appellant.

      John J. Santucci, District Attorney (Joan L. Craig of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed on the opinion by Mr. Justice George J. Balbach at Criminal Term, Supreme Court, Queens County (see, also, People v Stewart 41 NY2d 65).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke. Judge Fuchsberg dissents and votes to reverse in the following opinion.

Fuchsberg, J. (dissenting).

To permit a "pat-down” or search on no more than an anonymous telephone call, as here, would be to expose innocent individuals to intrusion on their persons whenever malicious and unidentifiable tipsters accompany their false accusations with accurate descriptions of the targets they choose to name (see People v Stewart, 41 NY2d 65, 69; People v Green, 35 NY2d 193, 196). In the present case, for instance, unlike People v Stroller (42 NY2d 1052), the defendant’s answer was not unresponsive when the police officer approached him to make a common-law inquiry in response to the anonymous telephone call. Nor, unlike People v Williams (41 NY2d 65), where the police officer had had several prior official encounters with the defendant and the latter had a suggestive bulge in the side of his overcoat (p 67), were there any such signs here. In brief, the defendant before us was not previously known to the officer, was responsive to the inquiry and there was no bulge to be observed. Accordingly, I would vote to reverse.

Order affirmed, etc.


text:
    Locator-Map, Inc., Plaintiff, and Franklin B. Resseguie et al., Respondents, v Wayne N. Adams et al., Appellants.
    Submitted December 19, 1977;
    decided January 6, 1978
   Motion to clarify opinion and amend remittitur denied. [See 42 NY2d 1022.]


text:
    In the Matter of the Arbitration between Marlene Industries Corp., Appellant, and Carnac Textiles, Inc., Respondent.
    Submitted December 27, 1977;
    decided January 6, 1978
   Motion to stay arbitration proceedings granted, there being no opposition thereto.


text:
    In the Matter of the Arbitration between Niagara Wheatfield Administrators Association, Appellant, and Niagara Wheatfield Central School District, Respondent.
    Submitted December 19, 1977;
    decided January 6, 1978
   Motion to stay argument of the appeal herein denied.


text:
    In the Matter of Harriet Knight et al., as Administratrices of Anthony E. Ross, Deceased, Appellants, v Eugene Gold, as District Attorney of Kings County, Respondent.
    Submitted December 5, 1977;
    decided January 6, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, as moot upon the ground that the District Attorney has agreed to permit inspection of the documents in question.


text:
    In the Matter of the County of Suffolk, Respondent, Relative to Acquiring Title to Real Property for Project Known as Northwest Harbor, in the Town of East Hampton. Victoria M. Gardner, Appellant.
    Submitted December 12, 1977;
    decided January 10, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of James Gibides, Jr., Respondent-Appellant, v Robert Powers, as Chief of Police of the Town of Camillus, et al., Appellants-Respondents.
    Submitted January 2, 1978;
    decided January 10, 1978
   Motion to dismiss petitioner’s cross appeal granted and the cross appeal dismissed, without costs, upon the ground that petitioner was not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Therese H. Kontos, Appellant, v Board of Education of the Oceanside Union Free School District, Respondent.
    Decided January 10, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous determination of the Appellate Division (Cohen and Karger, Powers of the New York Court of Appeals, § 51, p 231).


text:
    In the Matter of David L. Linfield, Appellant, v Board of Higher Education of the City of New York, Respondent.
    Decided January 10, 1978
   A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]).


text:
    In the Matter of John L. Short, Respondent, v Nassau County Civil Service Commission, Appellant.
    Submitted October 31, 1977;
    decided January 10, 1978
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of October 11, 1977, granted; and, insofar as it seeks leave to appeal from the Appellate Division order of July 1, 1976, dismissed upon the ground that the order sought to be appealed from involves a question of discretion of the type not reviewable by the Court of Appeals (Cohen and Karger, Power of the New York Court of Appeals, § 148, p 592).


text:
    The People of the State of New York, by Robert P. Whalen, as Commissioner of the Department of Health, et al., Appellants, v Woman’s Christian Association of Jamestown, Inc., Respondent, and Chautauqua Region Hospital Service Corporation, Appellant.
    Submitted December 27, 1977;
    decided January 12, 1978
   Motion by plaintiffs-appellants for leave to appeal granted.


text:
    Louis Silverman et al., Appellants, v Evelyn Valentine, Respondent.
    Submitted December 27, 1977;
    decided January 12, 1978
   Motion for leave to appeal dismissed, with $20 costs and necessary printing disbursements, upon the ground that the order sought to be reviewed involves the exercise of discretion of the type not reviewable by the Court of Appeals.


text:
    Bulova Watch Company, Inc., Appellant, v Celotex Corporation et al., Respondents.
    Submitted December 5, 1977;
    decided January 18, 1978
   Motion, insofar as it seeks leave to appeal from the Appellate Division affirmance of the dismissal of all claims in the first and third causes of action antedating the three-year period prior to commencement of this action, dismissed upon the ground that the order sought to be appealed from does not in that respect finally determine the action within the meaning of the Constitution.


text:
    Rudolph Hanzlik, Appellant, v Richard Henyan et al., Respondents.
    Decided January 18, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the determination sought to be reviewed involves a pure question of discretion of the type not reviewable by the Court of Appeals.


text:
    In the Matter of Philip Peltz, an Attorney, Appellant. Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted January 3, 1978;
    decided January 18, 1978
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Three Village Teachers Association, Inc., Respondent, v Three Village Central School District No. 1, Appellant.
    Argued January 5, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Peter V. Snyder for appellant.

      Frederic Block for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (56 AD2d 604) (see, also, Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266, 272).

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


text:
    Village of Southampton, Appellant, v Elaine Platt, Respondent.
    Argued January 9, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Richard E. De Petris and Emil F. De Petris for appellant.

      Elaine Platt, respondent pro se.

   OPINION OF THE COURT

Memorandum.

Order modified to reinstate plaintiffs complaint to the extent that it seeks to recover a fine not exceeding $250, and otherwise affirmed, without costs.

Section 20-2010 (subd 1, par a) of the Village Law authorizes villages to enforce ordinances by prescribing "fines for each violation thereof not to exceed two hundred fifty dollars”. This provision does not permit imposition of cumulative fines in excess of $250 for a single but continuing violation (Incorporated Vil. of Mill Neck v Fronsdal, 39 AD2d 549, 550; see People v Briary Improvement Corp., 34 NY2d 788, affg 77 Misc 2d 797, involving a similar provision in the Second Class Cities Law; cf. People v Fremd, 41 NY2d 372, 374-375, construing a provision of the General City Law which contained no equivalent limitation). Hence, defendant’s motion for partial summary judgment was properly granted.

Plaintiffs complaint should not, however, have been dismissed in its entirety. The notice of violation substantially complies with the notice requirement in the local ordinance. As noted by Mr. Justice Martuscello in dissent at the Appellate Division, "[i]n a civil action for penalties, there is no requirement that the removal notice served by the building inspector be based upon probable cause. Notice which is based upon a report that a violation exists, and which affords the alleged offender the opportunity to remove the violation, satisfies due process.” (55 AD2d 603, 604.) Nor is there any constitutional invalidity (Village of Belle Terre v Boraas, 416 US 1, 8-9; cf. City of White Plains v Ferraioli, 34 NY2d 300, 305).

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

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed, and the case remitted to Supreme Court, Suffolk County.


text:
    In the Matter of the State of New York by Louis J. Lefkowitz, as Attorney-General, Appellant, v Italian Line, Respondent.
    Argued January 10, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Earl S. Roberts and Samuel A. Hirshowitz of counsel), for appellant.

      Thomas Coyne, Louis J. Gusmano, Charles N. Fiddler and Alexander Vitale for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs. Respondent Italian Line was not shown to have engaged in any practice forbidden by subdivision 12 of section 63 of the Executive Law or to have engaged in such practice on a repeated or persistent basis. In connection with a contract for ocean passage the ticket reservation of the power to increase the fare was not suspect of an unconscionable or illegal scheme. The Italian Line used the "fuel surcharge” only in connection with the extraordinary rise in the price of oil after the start of the 1973-1974 international oil embargo. The comment at the Appellate Division that there was a passage of a year and a half between the imposition of the surcharge and the institution of this proceeding must be read to refer to the absence of repetition of the acts concerning which the Attorney-General complains, rather than to infer that the courts require the Attorney-General to act precipitously without investigation or preparation.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Fred Warren, Appellant.
    Argued'January 6, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Joseph A. Shifflett and Nathaniel A. Barrell for appellant.

      Edward C. Cosgrove, District Attorney (Judith Blake Manzella of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order modified to the extent of reversing the conviction for robbery in the first degree under count one of the indictment and a new ¡trial ordered, and otherwise affirmed.

The trial court should have submitted on request of defense counsel the lesser included offense of assault in the third degree. The transaction between defendant and Mrs. Powers, his landlady, was not a typical robbery. The altercation started over the effort by defendant, then under the influence of alcohol, to make a telephone call over his landlady’s telephone. He returned to her living room to upbraid her, flashed a knife, threatened to kill her, and then, according to Mrs. Powers, demanded all her money. The jury might well have chosen to accept, beyond a reasonable doubt, only the facts prior to the demand for money, and to conclude, therefore, that only an assault had occurred, the victim sustaining her injury of a cut hand as a result of her effort to disarm defendant, as she testified (see CPL 300.50, subds 1, 2; People v Asan, 22 NY2d 526, 532; see, generally, People v Greer, 42 NY2d 170, 173-174; People v Johnson, 39 NY2d 364, 367).

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

Order modified and the case remitted to Erie County Court for a new trial in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Doris Novak et al., Appellants, v All City Insurance Company, Respondent.
    Argued January 3, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Arthur Moskoff for appellant.

      Philip Hoffer, Rose L. Hoffer, Peter T. Affatato and Adolph B. Salib for respondent.
   OPINION OF THE COURT

Memorandum.

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

The indorsement attached to the comprehensive liability insurance policy and issued simultaneously with that policy by the respondent insurance company excludes insurance coverage for "Bodily Injury * * * arising out of (1) the named insured’s products”. The policy defines "named insured’s products” as "goods or products manufactured, sold, handled or distributed by the named insured”. So broad and clear a definition must be deemed to include food served to patron’s of the restaurant and adequately advised the insured as to the exclusion. Since we find the exclusionary clause unambiguous, it "must be given [its] plain and ordinary meaning” (Government Employees Ins. Co. v Kligler, 42 NY2d 863, 864), excluding coverage for the claims set forth against the insured and for the judgment entered as a result thereof.

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

Order affirmed.


text:
    In the Matter of Lily Bokhair et al., Appellants, v Board of Education of the City of New York, Respondent.
    Argued January 5, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      A. Michael Weber and James R. Sandner for appellants.

      W. Bernard Richland, Corporation Counsel (Paul T. Rephen and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The responsibility for determining whether a school system employs a sufficient number of attendance teachers to assure compliance with the compulsory education provisions of the Education Law is committed to the professional judgment and discretion of those responsible for administration of public schools. (James v Board of Educ., 42 NY2d 357.) Questions of this sort are inappropriate for resolution by the courts. Where this lawfully delegated discretion has been exercised by the board of education, review of such determination may be sought from the Commissioner of Education. (Education Law, § 310.) With these officials the matter rests. It should be added that this disposition is not dependent on the application of any doctrine of exhaustion of administrative remedy. (Cf. Matter of Geduldig v Board of Educ., 43 AD2d 840.)

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

Order affirmed.


text:
    In the Matter of Jesse Marksamer, Respondent, v Elinor Guggenheimer, as Commissioner of the Department of Consumer Affairs of the City of New York, Appellant.
    Submitted January 11, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan and Ronald E. Sternberg of counsel), for appellant.

      Albert Kostrinsky and David Goldstein for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed and the two-month suspension of petitioner’s license imposed by respondent Commissioner of the Department of Consumer Affairs is reinstated, with costs.

Upon the commissioner’s determination that a false affidavit of service had been filed by the petitioner, it should not be said that the sanction imposed was "shockingly disproportionate to the offense”. (Matter of Pell v Board of Educ., 34 NY2d 222, 236; Matter of Butterly & Green, v Lomenzo, 36 NY2d 250.)

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

Judgment reversed, etc.


text:
    Carmen Wojtowicz, Individually and as Mother and Natural Guardian of Dawn M. Wojtowicz and Another, Infants, Appellant, v Delacorte Press et al., Respondents, et al., Defendants.
    Argued January 3, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      William G. O’Donnell for appellant.

      Robert Bryant Hunting, Jeremy Nusbaum and Richard Paul Newman for Delacorte Press and another, respondents.

      Eugene L. Girden, Carleton G. Eldridge, Jr., and Pamela G. Ostrager for Warner Bros., Inc., and another, respondents.

      Irwin Karp for Authors League of America, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

The factual setting of this litigation is described in the opinion at the Appellate Division. For present purposes the allegations and assertions on which plaintiffs predicate their claims for invasion of privacy must be viewed in the light most favorable to them. In that perspective it appears that in the publication of two books and a movie (which do not purport to be historical or documentary accounts of newsworthy interest but which are nonetheless represented as true and accurate stories), defendants for commercial advantage have portrayed plaintiffs in sufficiently detailed accuracy of physical characteristics and activities as to result in their effective identification.

Three observations suffice for the disposition of this appeal. First, the present motion to dismiss is not addressed to the related causes of action sounding in defamation; those causes of action therefore remain for future disposition. Next, it is undisputed that plaintiffs’ names, portraits or pictures were not used in the books or in the movie; thus no cause of action is stated under sections 50 and 51 of the Civil Rights Law. Finally, whatever may be the law in other jurisdictions with respect to the right to judicial relief for invasion of privacy in consequence of unreasonable publicity, in our State thus far there has been no recognition of such right other than under sections 50 and 51 of the Civil Rights Law. (See Nader v General Motors Corp., 25 NY2d 560, 573 [concurring opn of Breitel, J.]; Flores v Mosler Safe Co., 7 NY2d 276, 280.)

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Louie Rodriguez, Appellant.
    Argued January 6, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Judith Preble and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed (People v Nixon, 21 NY2d 338, 353-355; People v Francis, 38 NY2d 150, 155-156).

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


text:
    Lawrence J. Kobre, Appellant, v Instrument Systems Corporation, Respondent.
    Argued January 10, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Adam Walinsky, Harvey J. Lippman and Susan Ervin for appellant.

      Harvey R. Blau for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (54 AD2d 625).

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


text:
    In the Matter of Marjorie Kaplan et al., Appellants, v Board of Education of Lakeland Central School District of Shrub Oak et al., Respondents.
    Argued January 4, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Jeffrey S. Karp and James R. Sandner for appellants.

      Murray Steyer for respondent.

      Lawrence W. Reich and Robert D. Stone for Gordon M. Ambach, as Commissioner of Education of the State of New York, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (56 AD2d 869).

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


text:
    In the Matter of Carrie P. Nino, Respondent, v Yonkers City School District et al., Appellants.
    Argued January 11, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Eugene J. Fox, Corporation Counsel (Richard L. Steer of counsel), for appellants.

      James J. Brady and James R. Sandner for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the board of education dismissing the respondent reinstated. The sole issue presented by this appeal is whether the Appellate Division properly reduced the sanction imposed by appellant board of education upon respondent teacher from dismissal to a temporary suspension without pay. It is now well settled that an administrative penalty is not to be set aside as excessive unless it is so "clearly disproportionate to the offense and completely inequitable in light of the surrounding circumstances” (Kostika v Cuomo, 41 NY2d 673, 676) as to be "shocking to one’s sense of fairness” (Matter of Pell v Board of Educ., 34 NY2d 222, 233). In view of the potentially harmful effect of respondent’s actions upon the young minds entrusted to her care, even as reflected in the hearing panel’s recommendation of reassignment, we cannot say that the sanction imposed by the board of education in this case was excessive under this standard.

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

Judgment reversed, etc.


text:
    In the Matter of A. R. Gundry, Inc., Respondent, v New York State Tax Commission, Appellant.
    Argued January 4, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Nigel G. Wright and Ruth Kessler Toch of counsel), for appellant.

      Robert E. Brown for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, without costs, and the determination of the State Tax Commission reinstated.

Section 503 of the Tax Law imposes "a highway use tax for the privilege of operating any vehicular unit upon the public highways of this state. * * * The tax for each such vehicular unit shall be computed by multiplying the number of miles operated on the public highways in this state by the appropriate weight group tax rate”. Regulations of long standing promulgated by the commission provide in pertinent part (20 NYCRR 481.12): "481.12 Determination of mileage. Mileage within this State shall be computed on the basis of the actual mileage traveled by each motor vehicle. Such mileage shall be based on speedometer readings, fuel consumption records, map mileage from the point of origin to the point of destination, tariff schedules or mileage used for billing purposes, and shall be subject to audit by the State Tax Commission.” The regulations also contain detailed prescriptions with reference to records which must be kept by the taxpayer.

Since the highway use tax was first imposed in 1951 petitioner taxpayer has computed its mileage for purposes of the tax on the basis of tariff schedules and mileage used for billing purposes. Until 1974 no challenge was ever raised on audit to the use of this method. During an audit in that year it was concluded on the basis of a sampling of tachograph and other records that the use of tariff schedules and mileage used for billing purposes was resulting in a significant underreporting by this taxpayer of actual miles traveled (perhaps by as much as 10%) and thus a substantial understatement of its tax liability. The commission decided that the taxpayer’s actual mileage could be more accurately determined by use of tachograph readings and applied this method of reckoning mileage for the period under audit (May, 1970 through March, 1974). The taxpayer objected to what it perceived as an impermissibly mandated change of computation method and particularly to its retrospective application. For purposes of eliminating factual issues and expediting a determination which was being delayed, the taxpayer stipulated that "If tachograph readings are used to determine actual miles traveled by vehicles of [the taxpayer] during the period covered by the assessment the net deficiency would be $32,104.58, plus interest charges”. (It appears that the taxpayer did have available tachograph records for the years in question, perhaps maintained for some corporate purpose other than computation of highway use taxes.) The commission determined a deficiency for the period of the audit based on use of tachograph readings and the stipulation. We conclude that the commission’s determination should be confirmed.

For present purposes the statute imposes the tax on "the number of miles operated on the public highways” (Tax Law, § 503, subd 1), and the related regulation provides that "Mileage within this State shall be computed on the basis of the actual mileage traveled by each motor vehicle” (20 NYCRR 481.12). The regulation then prescribes five different methods on which mileage calculations may be based, two of which are "tariff schedules” and "mileage used for billing purposes” and one of which is "speedometer readings”. No express right of election is given either the taxpayer or the commission as to which method may or shall be used, and it is conceded that none of the five methods will produce precisely accurate results. It is apparent, however, that the objective is determination of actual mileage traveled. We cannot say in the circumstances of this record that the commission’s determination that this taxpayer must use tachograph readings is arbitrary and capricious or otherwise erroneous. The taxpayer has failed to produce evidence to refute the commission’s determination of deficiency or on which to base a better computation of the tax due.

The taxpayer vigorously contends that if the tachograph method is to be mandated, the mandate must be prospective only and may not be made retrospective. Particular emphasis is placed on the commission’s acquiescence in the use by the taxpayer of tariff schedules and mileage used for billing purposes over some 21 years. We might agree with the taxpayer if in consequence of and reliance on that acquiescence the taxpayer had no tachograph records available. Aside from differences in the amount of the tax, the taxpayer might in that event be significantly prejudiced by an understandable failure to have maintained records, a failure for which the commission might be said to have been responsible in part. In such circumstances the commission might be limited to a prospective insistence on a change in method of calculation. But the availability in this instance of tachograph records for the period in question and the stipulation made by the taxpayer has eliminated any such special unfairness or prejudice in this case.

Thus, we conclude that the commission’s determination, both to base calculation of actual mileage on tachograph readings and to apply that method back to May, 1970, should be reinstated.

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

Judgment reversed, etc.


text:
    In the Matter of Ronald Siletti, Appellant, v Alphonse E. D’Ambrose, as Personnel Director and Chairman, Department of Personnel and Civil Service Commission of the City of New York, et al., Respondents.
    Argued January 5, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Morris Weissberg and Robert J. Krengel for appellant.

      W. Bernard Richland, Corporation Counsel (Maureen F. Brennan and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Harold Baer at Special Term [92 Misc 2d 585.]

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


text:
    The People of the State of New York, Respondent, v Grafton Cohen, Appellant.
    Submitted January 6, 1978;
    decided February 7, 1978
    APPEARANCES OF COUNSEL

      Edward J. Nowak for appellant.

      Lawrence T. Kurlander, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

The testimony of the prosecution in this circumstantial case, when viewed in its most favorable light (People v Benzinger, 36 NY2d 29), indicates that the defendant was walking down the street with someone who was to later enter into a transaction with an undercover police officer for the sale of heroin. There was no proof that the defendant was involved in any conversation with regard to the transaction and, in fact, he was not present when and precisely where the alleged sale took place. The inference which may be drawn from the additional proof that he was observed shortly thereafter receiving money from his codefendant is not sufficient to supply the minimum required to establish guilt beyond a reasonable doubt. There are too many reasonable hypotheses which would explain the receipt of money and which are consistent with innocence (People v Montanez, 41 NY2d 53; People v Williams, 35 NY2d 783).

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

Order reversed, etc.


text:
    Association of Personnel Agencies of New York, Inc., et al., Appellants, v Philip Ross, as Industrial Commissioner of the State of New York, et al., Respondents.
    Argued January 9, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL
    A. Bernard Frechtman and Joel A. Klarreich for appellants.

      Louis J. Lefkowitz, Attorney-General (Arnold D. Fleischer, Samuel A. Hirshowitz and George D. Zuckerman of counsel), for Philip Ross, as Industrial Commissioner of the State of New York, respondent.
   OPINION OF THE COURT

Memorandum.

We agree with Special Term that subdivisions (15), (16) and (17) of section 187 and section 190 of the General Business Law do not violate the equal protection clauses of the State and Federal Constitutions. It was not irrational for the Legislature to provide that those employment agencies which require special supervision and licensing by the State may be subject to penal sanctions if they engage in sexual discrimination or other specified illegal acts.

Accordingly, the judgment of Special Term, declaring the statutes constitutional, should be affirmed.

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

Judgment affirmed, with costs, in a memorandum.


text:
    Duane P. Howell, Appellant, v Neil S. Davis et al., Respondents.
    Submitted January 3, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Harold S. Vogel for appellant.

      Joseph Bonacore for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, on the memorandum at the Appellate Division (58 AD2d 852).

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


text:
    Renee Guion, Appellant, v Associated Dry Goods Corp. (Lord & Taylor Division) et al., Respondents, et al., Defendants.
    Argued January 4, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Monroe E. Stein for appellant.

      Douglas A. Boeckmann for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs.

On the record before us there is no predicate for punitive damages as a matter of law. Even assuming that the security supervisor’s failure to inspect the counter was relevant to the false imprisonment cause of action, under the circumstances here, while his conduct could be found to be careless, it did not rise to the level of wantonness or maliciousness (cf. Walker v Sheldon, 10 NY2d 401, 404 [Fuld, J.]). And, since the evidence was insufficient to support plaintiffs claim for exemplary damages against all three employees through which the store acted, a fortiori there was no basis for recovery of such damages against their employer (see Walker v Lord & Taylor, 236 App Div 111; 10 Encyclopedia New York Law, Damages, § 831, p 346).

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

Order affirmed.


text:
    Central School District No. 3 of the Towns of Amherst, Cheektowaga and Clarence, Appellant-Respondent, v Insurance Company of North America, Respondent, and Ernest Sandor, Respondent-Appellant.
    Submitted January 9, 1978;
    decided February 7, 1978

      APPEARANCES OF COUNSEL

      Irving Fudeman for respondent-appellant.

      Joseph L. Watson and James S. McAskill for appellant-respondent.

      H. Kenneth Schroeder, Jr., and Richard F. Campbell for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, on the memorandum at the Appellate Division (55 AD2d 1021).

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


text:
    Susan B. Rosenberg, Respondent, v L. Richard Rosenberg, Appellant.
    Submitted December 19, 1977;
    decided February 7, 1978
   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 (Cohen and Karger, Powers of the New York Court of Appeals, § 11, P 43).


text:
    William E. McGinn et al., Appellants, v Board of Education of the City of New York et al., Respondents.
    Submitted December 27, 1977;
    decided February 7, 1978
   Motion for leave to appeal dismissed upon the ground that the prior motion for leave to appeal, made to the Appellate Division, was untimely (CPLR 5513, subd [c]; cf. CPLR 5514, subd [a]; Cohen and Karger, Powers of the New York Court of Appeals, § 101, p 429; see, e.g., Schwartz v National Computer Corp., 38 NY2d 800).


text:
    Alan Flans et al., Respondents, v Federal Insurance Company, Appellant.
    Argued January 12, 1978;
    decided February 9, 1978

      APPEARANCES OF COUNSEL

      Seale W. Tuttle for appellant.

      Roy L. Featherstone for respondents.
   OPINION OF THE COURT

Memorandum.

Order reversed, without costs, and motion to dismiss the complaint granted. Plaintiffs, having moved to Israel, failed to appear for an examination before trial and on the date set for trial. Under those circumstances, coupled with the protracted and repeated delays by plaintiffs, dismissal of the original, timely action was inferentially for "neglect to prosecute” within the meaning of CPLR 205 (subd [a]) (see Wright v Defelice & Son, 22 AD2d 962, affd 17 NY2d 586; Jelinek v City of New York, 25 AD2d 425; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C205:5, p 197). The statutory six-month extension not being available, the instant action, brought more than three and a half years after the accident, is barred under the insurance policy’s one-year time limitation.

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

Order reversed, without costs, and motion to dismiss the complaint granted in a memorandum. Question certified answered in the negative.


text:
    In the Matter of Semimetals, Incorporated, et al., Respondents, v State Division of Human Rights on the Complaint of Marion Lewis, Appellant.
    Argued January 11, 1978;
    decided February 9, 1978
    APPEARANCES OF COUNSEL

      Marion Lewis, appellant pro se.

      Carmel Ebb for respondents.
   OPINION OF THE COURT

Memorandum.

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

There is insufficient evidence in the record before us to support the determination of the State Division of Human Rights that respondents discriminated against complainant in connection with the termination of her employment in August, 1971.

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

Order affirmed.


text:
    In the Matter of Napatco, Inc., Respondent, v Louis J. Lefkowitz, as Attorney-General of the State of New York, Appellant.
    Argued January 12, 1978;
    decided February 9, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Paul S. Shemin, Samuel A. Hirshowitz and Philip Weinberg of counsel), for appellant.

      Charles G. Mills IV and Samuel N. Greenspoon for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Attorney-General is granted broad authority to conduct investigations, on the complaint of others or on his own information, with respect to illegal business practices and the unlawful practice of law. In furtherance thereof he is authorized to issue subpoenas under subdivision 12 of section 63 of the Executive Law. We have held, however, that there must be some factual basis shown to support the subpoena (Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250, 258). It is not fatal in this instance that there is no evidence in the record of third-party complaints; it is fatal that there is no evidence of any sufficient factual predicate to support the subpoena. All that is tendered is a piece of advertising copy and a single-form letter of petitioner, the latter apparently sent to lawyers engaged in general practice. The texts of both the advertisement and the form letter are too equivocal; read as the Attorney-General would read them they can be said to constitute an offer to engage in activities prohibited by subdivision 1 of section 495 of the Judiciary Law. On the basis of an arbitrary resolution of the equivocality in a manner adverse to petitioner and favorable to him, the Attorney-General asserts that he has authority to pursue his suspicions. The minimal, equivocal documentary proof in this case with no other proof of any sort to support suspicion of illegality is not sufficient to sustain the subpoena, and it therefore should be quashed.

On our disposition of the appeal on this basis we do not reach or consider petitioner’s contentions that this subpoena duces tecum is impermissibly overbroad.

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

Order affirmed.


text:
    In the Matter of Louis Aboulafia et al., Appellants, v Richard J. Bartlett, as State Administrative Judge of the Administrative Board of the Judicial Conference of the State of New York, et al., Respondents.
    Argued January 5, 1978;
    decided February 9, 1978

      APPEARANCES OF COUNSEL

      Richard M. Gaba for appellants.

      Michael Colodner and Michael R. Juviler for Richard J. Bartlett, as State Administrative Judge, respondent.

      Louis J. Lefkowitz, Attorney-General (John Q. Driscoll and Ruth Kessler Toch of counsel), for Arthur Levitt, as Comptroller, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, to the extent of remitting the matter to Supreme Court with directions to enter judgment ordering the Administrative Board of the Judicial Conference to recalculate petitioners’ salaries as if they had been allocated to grade 27 effective April 1, 1972. As so modified, the order should be affirmed.

Respondents now concede (as was the view of Mr. Justice Louis M. Greenblott, the dissenter at the Appellate Division) that, for the purposes of subdivision 3 of section 219 of the Judiciary Law as added by section 60 of chapter 283 of the Laws of 1972, petitioners’ salaries are to be calculated as if petitioners had been allocated to grade 27 effective April 1, 1972. Not content with this concession petitioners further urge that, for purposes of reckoning their entitlement to longevity increments under subdivision 3, continuous service in their positions should extend as well to service prior to April 1, 1972.

The limitation of the statute becomes clear with the elision of unnecessary words and the addition of emphasis—"when an employee holding a position allocated to a salary grade prescribed in subdivision one * * * has reached, on or after April first, nineteen hundred seventy-two, a salary equal to or in excess of the maximum salary of the grade of his position and thereafter has rendered continuous service in such position * * * he shall be entitled, on the first day of the fiscal year following completion of five years of such service* to an additional increment of the grade to which his position is allocated, and following completion of ten years of such service, to a second additional increment of such grade”. As we read this provision, "thereafter” relates unmistakably to April 1, 1972, and in both instances "such service” refers to continuous service rendered after that date. Thus, petitioners’ reach for credit for past service prior to April 1, 1972 must fail.

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

Order modified, without costs, and the matter remitted to Supreme Court, Albany County, for the entry of judgment in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Procopio S. Impastato et al., Respondents, v Village of Catskill et al., Appellants.
    Argued January 11, 1978;
    decided February 9, 1978

      APPEARANCES OF COUNSEL

      Daniel Kevin Lalor for appellants.

      George W. Harder for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (55 AD2d 714).

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


text:
    In the Matter of the Arbitration between Empire Mutual Insurance Company, Appellant, and Ann P. Konetsky, Respondent.
    Argued January 12, 1968;
    decided February 9, 1978

      APPEARANCES OF COUNSEL

      Philip Holler, Rose L. Holler, Peter T. Affatato and Adolph B. Salib for appellant.

      Kalman & Kaufman, P. C., for respondent, precluded.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Arnold L. Fein at Special Term.

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


text:
    Laundra-Vend Machines, Inc., Respondent, v J. R. D. Management Corp. et al., Appellants.
    Argued January 10, 1978;
    decided February 9, 1978

      APPEARANCES OF COUNSEL

      Ralph H. Wiener for appellants.

      Seymour Robinowitz for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (54 AD2d 973), without prejudice to appellants’ applying, if so advised, to Special Term for further relief to purge themselves of the contempt. Question certified answered in the affirmative.

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


text:
    Carlton G. Hallock et al., Appellants, v State of New York et al., Respondents.
    Decided February 9, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. (Hoffman v Englemann, 25 NY2d 678; Matter of Longwood Assoc, v Board of Assessors of County of Nassau, 42 NY2d 1014; Bristol Myers Co. v General Elec. Co., 43 NY2d 835; Cohen and Karger, Powers of the New York Court of Appeals, § 36, subd [b], p 143.)


text:
    In the Matter of Paul Hunt, Appellant, v Harold Bennett, as Superintendent of the Albany County Jail, Respondent.
    Decided February 9, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    In the Matter of Merrick Holding Corp., Respondent, v Board of Assessors of the County of Nassau, Appellant.
    Submitted January 9, 1978;
    decided February 9, 1978
   [See 58 AD2d 605.]


text:
    Georgia McGill, Appellant, v Board of Education, Union Free School District No. 3, Town of Hempstead, et al., Respondents.
    Submitted January 9, 1978;
    decided February 9, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved (Cohen and Karger, Powers of the New York Court of Appeals, § 55, p 254; Matter of Brown v Board of Trustees of Town of Hamptonburg, School Dist. No. 4, 303 NY 484; Pausley v Chaloner, 41 NY2d 900 [app dsmd], 805 [mot for lv to app den]).


text:
    The People of the State of New York, Appellant, v Raymond Rodriguez, Respondent.
    Submitted January 9, 1978;
    decided February 9, 1978
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from was made in a criminal proceeding and no appeal lies therefrom under the CPL.


text:
    The People of the State of New York ex rel. Paul Hunt, Appellant, v John J. McNulty, as Sheriff of Albany County, et al., Respondents.
    Decided February 9, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; CPLR 5601, subd [b], par 2).


text:
    Stephen-Leedom Carpet Company, Inc., Respondent, v Arkwright-Boston Manufacturers Mutual Insurance Company et al., Appellants.
    Decided February 9, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution and upon the further ground that the order appealed from involves the exercise of nonreviewable discretion.


text:
    Union River Company, Respondent, v S. S. Kresge Company, Appellant.
    Decided February 9,1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that no appeal lies as of right from the unanimous determination of the Appellate Division (CPLR 5601, subd [a]) and the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Israel Ruiz, Jr., Respondent, v Alice Sachs et al., Constituting the Board of Elections of the City of New York, and Diana Sanchez et al., Appellants.
    Argued February 9, 1978;
    decided February 10, 1978

      APPEARANCES OF COUNSEL

      Kenneth G. Schwarz for appellants.

      Andrew M. Schnier for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, in the following memorandum: On the proof in this instance, there having been compliance with the requirements of section 6-140 of the Election Law as to content and substantial compliance with the requirements of that section as to form, the order of the Appellate Division should be affirmed.

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


text:
    Dora Rosenblum, as Executrix of Jacques Rosenblum, Deceased, Appellant-Respondent, v Herman C. Steiner, Respondent-Appellant.
    Submitted January 3, 1978;
    decided February 14, 1978

      APPEARANCES OF COUNSEL

      Marcel Shwergold for appellant-respondent.

      Irving L. Golomb for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, in accordance with the following memorandum. The plaintiff executrix made this CPLR 3213 motion for summary judgment by service of a summons, notice of motion for summary judgment and affidavit in support of the motion seeking to collect on two promissory notes. The papers alleged that on or about December 1, 1971 the defendant executed and delivered to the deceased a series of five promissory notes which were given in consideration for the purchase of an interest in certain real property. The first three notes were apparently paid but defendant defaulted on the fourth note, which activated an acceleration clause causing the fifth note to also become due. The defendant served an affidavit in opposition which alleged, inter alia, that the notes were unenforceable because they exacted an usurious rate of interest, and by counterclaim sought payment for excessive interest previously paid. Plaintiff then served a reply affidavit challenging the usury allegation. At this point defendant countered with a supplemental affidavit asserting that the written agreement between the parties included a broad arbitration clause. In his supplemental affidavit defendant demanded arbitration and sought to withdraw his usury counterclaim without prejudice to raise it in the arbitration proceedings.

Although defendant did not immediately assert his demand for arbitration, his delay was explained by an illness and absence from the State where the documents were located. Since all the affidavits in this CPLR 3213 motion were reviewed by Special Term at one time, it cannot be said that defendant’s degree of participation in the action constituted a waiver of his right to demand arbitration (see De Sapio v Kohlmeyer, 35 NY2d 402, 405).

The demand for arbitration commenced the arbitration proceedings (cf. City Trade & Inds. v New Cent. Jute Mills Co., 25 NY2d 49, 55) and the Appellate Division properly directed that arbitration proceed and that the present proceeding be stayed pending the outcome of the arbitration (CPLR 7503). However, the Appellate Division erred when it restricted the scope of the arbitration by declaring that "the projected defense of usury is not available upon arbitration as a matter of public policy (Durst v Abrash, 22 AD2d 39, 44, affd on opn below 17 NY2d 445).” In Durst the court held that a lender who was allegedly exacting a usurious rate of interest could not, as a matter of public policy, protect his transaction from judicial review by including a broad arbitration clause in the "loan” agreement and then demanding that all issues be heard by the arbitrator. The court noted that a lender "desiring to make a usurious agreement impenetrable need only require the necessitous borrower to consent to arbitration and also to arbitrators by name or occupation associated with the lending industry” (Durst v Abrash, 22 AD2d 39, 44, affd 17 NY2d 445, supra). In the present case it is the borrower who seeks to compel arbitration of the entire transaction. The borrower’s demand under the broad arbitration clause does not implicate any of the policy considerations which disturbed the court in Durst. In the context of this case there is no public policy consideration restricting the scope of the arbitrators’ review, nor is there any challenge to the validity of the arbitration agreement itself requiring judicial review (see Matter of Weinrott [Carp], 32 NY2d 190). The clause itself provides that "[a]ny dispute arising out of this Agreement shall be resolved by arbitration”. The clause should be given effect and the arbitrators must necessarily consider all issues relating to the agreement.

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

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.