text:
    City of Elmira, Appellant, v Larry Walter, Inc., et al., Respondents, et al., Defendant.
    Argued September 11, 1990;
    decided October 16, 1990

      APPEARANCES OF COUNSEL

      Laurence F. Sovik and James A. O'Shea for appellant.

      Arthur S. Friedman, Leslie F. Couch and Joan R. Salzman for respondents.
   OPINION OF THE COURT

Memorandum.

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

This breach of contract action has its origins in an agreement for the construction of a municipal parking garage. While the construction project was underway, disputes arose concerning a number of issues, including defendant contractor’s entitlement to progress payments. As a consequence of these disputes, defendant discontinued further work on the project some five months before the contractually designated completion date. Plaintiff was forced to retain another contractor to finish the project and, as a result, the municipal parking garage was not ready to open at the anticipated time. Following the final disposition of an arbitration proceeding, plaintiff commenced the present action against defendant contractor for breach of contract damages.

After protracted litigation, defendant was found to have breached its contractual obligations, and plaintiff was awarded actual damages, as well as liquidated damages. The latter award was based on a liquidated damage clause in the parties’ agreement that provided: "As actual damages for any delay in completing the work * * * are impossible to determine, the Contractors and their Sureties shall be liable for * * * the sum of One Thousand Dollars * * * as fixed, agreed and liquidated damages for each calendar day of delay from the above stipulated completion * * * until such work is satisfactorily completed and accepted.” On cross appeals, the Appellate Division modified the judgment by, inter alia, subtracting the portion of the award that represented liquidated damages under this clause. The propriety of the Appellate Division’s decision on the liquidated damages question is the only issue before us on this appeal.

The liquidated damage clause on which plaintiff relies, by its terms, represents an attempt by the parties to anticipate and provide for the specific possibility that defendant’s satisfactory completion of the project might be delayed beyond the agreed-upon date. The clause does not contain clear and unambiguous language, as it should, indicating that it was also intended to apply to defendant’s outright abandonment of the project, an entirely separate eventuality. Thus, as in Murphy v United States Fid. & Guar. Co. (100 App Div 93, 98, affd 184 NY 543), ”[t]he only reasonable interpretation which can be given to [the liquidated damage] provision is * * * that the liability for the stipulated sum did not accrue until the contractor had fulfilled [its] agreement,” and, consequently, the provision is not available in a case such as this, involving a complete renunciation of the contract.

Plaintiff’s contention that such an interpretation of its agreement would encourage contractors to abandon projects as a means of avoiding contractually agreed-upon liquidated delay damages is unavailing. Even assuming that such a concern has some practical foundation, owners who wish to protect themselves against it may negotiate for the inclusion of express contractual provisions for liquidated damages for delay even in the event of an abandonment. Accordingly, since these parties’ contract contained no such express provision, plaintiff was not entitled to an award for liquidated damages.

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Alice Whalen, Appellant, v Julius Gerzof et al., Respondents, et al., Defendant.
    Argued September 13,1990;
    decided October 16, 1990

      APPEARANCES OF COUNSEL

      David F. Kunz and Brian J. McCann for appellant.

      William J. Dreyer and Daniel J. Stewart for Julius Gerzof, respondent.

      Andrew A. Wittenstein and Barry H. Dyller for Jerome Z. Lorber and another, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by denying defendant Gerzofs motion for summary judgment and, as so modified, affirmed; costs should be awarded to plaintiff Whalen against defendant Gerzof on the modification and to the other defendants against plaintiff Whalen on the affirmance.

The Appellate Division memorandum recites the salient facts and correctly resolves this commercial dispute between plaintiff Whalen and all the defendants except Gerzof. Thus, we affirm as to the other defendants for the reasons stated by that court (154 AD2d 843).

However, we disagree with its dismissal of the causes of action which arise out of plaintiff Whalen’s and defendant Gerzofs alleged contractual and derivative fiduciary relationship. Summary judgment on Statute of Limitations grounds should not have been granted in favor of Gerzof. Those causes of action are rooted in an exchange of letters between Whalen and Gerzof in November 1975, describing an understanding that Gerzof was giving Whalen one half of Gerzofs partial interest in Pearcove Associates, a real estate enterprise, from which she would receive benefits after Gerzofs receipt of the first income or sale proceeds over $50,000. In their sui generis arrangement, the Statute of Limitations did not begin to run in 1975 or shortly afterwards, as Gerzof successfully contended below. Rather, under the alleged agreement, the Statute of Limitations was in repose until Whalen became entitled to earnings from the partnership interest above the threshold $50,000 payment, and until she demanded or became aware of her accrued rights to earnings under their agreement. The conditions precedent to the existence and accrual of these causes of action allegedly occurred in 1983. Inasmuch as the lawsuit was also begun in 1983, it was unquestionably timely.

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

Order modified, with costs to plaintiff as against defendant Gerzof, by denying defendant Gerzofs motion for summary judgment and, as so modified, affirmed with costs to the remaining defendants against plaintiff, in a memorandum.


text:
    Geotel, Inc., Appellant, v William Wallace et al., Defendants, and Extebank et al., Respondents.
    Submitted July 30,1990;
    decided October 16, 1990
   Motion for leave to appeal as against defendants Extebank and Laventhol and Horwath dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal as against The Stuart James Co. denied.


text:
    In the Matter of Julio Giano, Appellant, v Thomas Coughlin, as Commissioner of the Department of Correctional Services, et al., Respondents.
    Submitted August 6,1990;
    decided October 16, 1990
   Motion for leave to appeal dismissed as moot.


text:
    George T. Hawes, Appellant, v State of New York et al., Respondents.
    Submitted August 6, 1990;
    decided October 16, 1990
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York ex rel. Justo Richards, Appellant, v George Bartlett, as Superintendent of Elmira Correctional Facility, et al., Respondents.
    Submitted July 23, 1990;
    decided October 16, 1990
   On the Court’s own motion, appeals from the Appellate Division orders dated June 25, 1990 and June 26, 1990, denying applications for writs of habeas corpus, dismissed, without costs, upon the ground that no substantial constitutional question is directly involved, and appeal from the Appellate Division order dated June 25, 1990, denying motions for a transfer of certain related proceedings from the Second Department to the Third Department, dismissed, without costs, upon the ground that that order does not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Benjamin Rothbaum, Respondent, v Stella F. Rothbaum, Appellant.
    Submitted July 30,1990;
    decided October 16, 1990
   Motion for reargument granted and, upon reargument, motion for leave to appeal denied. [See, 76 NY2d 770.]


text:
    The People of the State of New York, Respondent, v Jose Rodriguez, Appellant.
    Argued September 6, 1990;
    decided October 18, 1990

      APPEARANCES OF COUNSEL

      Joel Atlas and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Catherine Arcabascio and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after trial, of murder in the second degree, robbery in the first degree and criminal possession of a weapon in the second degree. The charges arose from the killing and robbery of Effrain Camacho by defendant and two others at 303 Jefferson Street in Brooklyn when Camacho and a friend attempted to purchase heroin and cocaine at an apartment where defendant had been living.

Defendant’s principal contention is that the trial court erred in refusing his request to instruct the jury on intoxication pursuant to Penal Law § 15.25. On appeal to this Court, he contends that the Appellate Division, in finding no error, erroneously limited the availability of the intoxication charge by requiring, as a prerequisite, objective evidence that a defendant’s mental capacity has actually been diminished by the intoxicating substance. The Appellate Division held that although defendant presented evidence that he had been using drugs in his apartment before the commission of the crimes charged, there was no evidence that his mental capacity was in any way diminished by his drug use and thus no reasonable person could entertain a doubt as to the element of intent (see, People v Rodriguez, 155 AD2d 627; see also, People v Rios, 150 AD2d 620; People v Franco, 144 AD2d 581). We agree the Appellate Division’s statement of the rule was error.

We stated the correct rule in People v Perry (61 NY2d 849, 850), where we held that "[a] charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” (see also, People v Farnsworth, 65 NY2d 734; People v Orr, 43 AD2d 836, affd 35 NY2d 829; People v Lee, 35 NY2d 826). The evidence of intoxication, sufficient to warrant the instruction under the Perry standard, may include evidence that defendant’s mental capacity has been diminished by intoxicants but it need not in all cases. The charge may also be warranted if the record contains evidence of the recent use of intoxicants of such nature or quantity to support the inference that their ingestion was sufficient to affect defendant’s ability to form the necessary criminal intent.

The evidence of intoxication in this case did not meet even the relatively low threshold established by Perry, however, and thus we find no error in the court’s refusal to grant defendant’s request. Defendant presented only inconclusive evidence that he had been using various forms of narcotics on the day of the crime and the jury could not reasonably infer from that evidence that his capacity to form the necessary intent had been thereby affected. There was no evidence of when defendant ingested narcotics, the quantity ingested or the effect they had on him. Indeed, the record shows that defendant made coherent statements both on the day of the crime and on the day of his arrest in which he described with particularity the events leading up to the crime. Moreover, the ambiguous assertion at trial by an accomplice that defendant was "high” was casually volunteered, it was not a part of defendant’s theory of the case and it does not, alone or in combination with the other meager evidence of drug use in the record, warrant an intoxication instruction under the rule in Perry.

Defendant also claims that he was denied his right to be present at a critical stage of the criminal proceeding. Pursuant to CPL 310.30, a defendant has an "absolute and unequivocal” right to be present during instructions to the jury, which would include the right to be present during a read-back of testimony to the jury (see, People v Mehmedi, 69 NY2d 759, 760; see also, People v Ciaccio, 47 NY2d 431). That right did not include the right of defendant to be present at a colloquy between his attorney and the Trial Judge which took place outside the jury’s presence and involved only the sufficiency of the read-back. Defendant’s absence from the colloquy did not effect his ability to defend himself against the charges in any way and thus did not violate his due process right to be present at trial (see, Snyder v Massachusetts, 291 US 97, 105-106; People v Ciaccio, 47 NY2d 431, 436, supra; and cf., People v Ferguson, 67 NY2d 383; People v Mullen, 44 NY2d 1; People ex rel. Lupo v Fay, 13 NY2d 253).

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

Order affirmed, in a memorandum.


text:
    The People of the State of New York, Appellant, v Beverly Campbell, Respondent.
    Decided October 18, 1990

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney (Mark D. Suben of counsel), for appellant.
    No appearance for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. The appeal presents only mixed questions of law and fact. Since there is evidence in the record to support the determination of the court below, further review by this Court is precluded (see, People v Harrison, 57 NY2d 470, 477).

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


text:
    In the Matter of Benjamin L. Wechsler et al., Appellants, v New York State Department of Environmental Conservation, Respondent.
    Argued September 6, 1990;
    decided October 18, 1990

      APPEARANCES OF COUNSEL

      Mark Lewis Schulman for appellants.

      Robert Abrams, Attorney-General (Peter G. Crary, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Pursuant to the authority conferred by ECL 3-0305 (1), the Department of Environmental Conservation (DEC) determined to acquire, by eminent domain, a 1,067-acre parcel of land owned by petitioner, as well as petitioner’s exclusive hunting, fishing and trapping rights to an adjacent 1,800-acre parcel presently owned by the State. Both parcels are part of the Neversink River Gorge, which indisputably is an area of great natural beauty and ecological, as well as historical, significance. According to DEC, the acquisition is to be funded as a "unique area” preservation project under the Environmental Quality Bond Implementation Act of 1972 and, if necessary, the analogous provisions of the Bond Implementation Act of 1986 (L 1986, ch 511, codified at ECL art 52; L 1972, ch 658, codified at ECL art 51; see, ECL 51-0103 [3]; 51-0701 [3]; 51-0703 [4]; 52-0101 [4] [h]; see also, ECL 52-0103 [2]; 52-0701 [3]; 6 NYCRR 591.9 [b] [2] [iii]). The decision to undertake the acquisition was made, after a public hearing (see, ECL art 8; EDPL art 2), on the ground that the acquisition would preserve and protect these lands of "natural beauty” and "unique character” and would allow for increased public access, consistent with the over-all goal of preservation.

Petitioner brought the present proceeding under article 2 of the EDPL to challenge the DEC’s determination. The Appellate Division rejected each of his substantive and procedural arguments, including the contention that the acquisition decision exceeded the agency’s authority under the Bond Implementation Acts of 1972 and 1986. We agree that the agency did not exceed its authority and that petitioner’s various objections to the agency’s procedures do not warrant annulment of its determination.

The DEC Commissioner has broad, statutorily conferred power to acquire real property by condemnation when money is "available” and "he deems [it] necessary for any of the purposes or functions of the department” (ECL 3-0305 [1]; see, Matter of Bath & Hammondsport R. R. Co. v New York State Dept. of Envtl. Conservation, 73 NY2d 434). Further, provided that it confines its condemnation activities to those that serve valid public purposes, DEC has wide latitude in determining what acquisitions are "necessary” to achieve the agency’s legislatively authorized goals (see, Matter of Waldo’s, Inc. v Village of Johnson City, 74 NY2d 718).

Petitioner’s contention that the planned acquisition exceeds DEC’s statutory authority is meritless. ECL 51-0701 (3) and 52-0103 (2) specifically authorize the expenditure of funds raised through the 1972 and 1986 bond issues for projects to preserve "unique” lands, a term of art defined as "lands of special natural beauty, wilderness character, geological, ecological or historical significance” (ECL 51-0703 [4]; 52-0101 [4] [h]). DEC’s decision to acquire petitioner’s property rights to preserve these parcels within the Neversink River Gorge unquestionably falls within this legislative grant of authority. That the acquisition may also incidentally serve other identified goals, such as increasing the public’s access to, and recreational use of, these lands does not detract from the propriety of the agency’s proposed use of "unique” area project funds to advance the primary goal of preservation. The wisdom of the agency’s choice to acquire the lands and easements in question is, of course, not an issue that is cognizable in this proceeding (see, Matter of Waldo’s, Inc. v Village of Johnson City, supra, at 720; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 418, 425).

Nor is DEC’s authority to make the planned acquisition undermined by the fact that the land is not to be added to the State Nature and Historical Preserve. Contrary to the argument of the dissenters in the court below, the properties that may be added to the constitutionally created Nature and Historic Preserve are limited, by definition, to those lands of special natural beauty and wilderness character that are "outside the forest preserve counties” (NY Const, art XIV, § 4). Lands such as those at issue here, which are within a forest preserve county, cannot be added to the Preserve as "unique” areas of special natural beauty and wilderness character, but may nevertheless be acquired under the cognate statutory provision for the acquisition of "similar lands within a forest preserve county” (ECL 51-0703 [4]; 52-0101 [4] [h]).

Petitioner’s objections to the procedures used by the agency under EDPL article 2, are equally unavailing. As was noted by the court below, the DEC’s determination was published within 90 days after the public hearing record was closed for further comment and was therefore timely under EDPL 204 (A). Further, although there were apparently some gaps and omissions in the official public hearing record, the claimed imperfections were de minimis and, in any event, do not furnish a basis for overturning the agency determination, since the allegedly omitted written material was also presented orally at the public hearing and was, consequently, included in the hearing transcript. Finally, EDPL 202 (A) and 203 require only that the condemnor set forth the "proposed location of the public project” in the public hearing notice, and EDPL 204 (B) (2) requires only that the "approximate location” of the project be specified in the ensuing determination.

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

Order affirmed, with costs, in a memorandum.


text:
    Sam Sofsky, Individually and as Executor of Henrietta Sofsky, Deceased, Appellant, v David Rosenberg et al., Respondents, et al., Defendants.
    Decided October 18, 1990

      APPEARANCES OF COUNSEL

      Samuel Shapiro for appellant.

      Mark C. Zauderer for David Rosenberg, respondent.

      Alexander V Sansone for Joseph Pomeranz, respondent.
   OPINION OF THE COURT

Memorandum.

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

In order to defeat the defendants’ motions for summary judgment, plaintiff was required to show a triable issue of fact concerning the delivery of the deed to Rosenberg (CPLR 3212 [b]; McGahee v Kennedy, 48 NY2d 832). Rosenberg’s possession of the deed creates a presumption that the deceased grantor had delivered the deed to him before her death (see, Herrmann v Jorgenson, 263 NY 348). While a court may consider attendant circumstances surrounding the transfer of real property when delivery of the deed of transfer is adequately disputed or when undue influence is adequately alleged (see, Ten Eyck v Whitbeck, 156 NY 341, 353), unsupported, conclusory allegations that the deed had not been delivered are insufficient to overcome the presumption of delivery (see, McGahee v Kennedy, supra, at 834). In this case, plaintiff failed to satisfy that burden; accordingly, he failed to raise any triable issue of fact.

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

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


text:
    John B. Bell, Appellant, v New York Higher Education Assistance Corporation et al., Defendants, and Chemical Bank, Respondent.
    Submitted August 27, 1990;
    decided October 18, 1990
   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.

Cross motion for imposition of sanctions granted (see, 22 NYCRR part 130). This is the fifth motion in a chain reflecting a strategy of dilatory, frivolous avoidance of a 20-year-old student loan debt for two years’ law school education. The abuse of the judicial process and the imposition on opposition parties, aggravated by movant’s failure to pay usual motion costs imposed by this Court on previous applications to this Court, amply justify the imposition of sanctions in the sum of $1,000 pursuant to 22 NYCRR part 130.


text:
    In the Matter of Douglas H. Casement, Appellant, v Town of Poughkeepsie Planning Board et al., Respondents, and Lorina Realty Company, Intervenor-Respondent.
    Submitted August 13,1990;
    decided October 18, 1990
   Motion for leave to appeal dismissed upon the ground that the movant has failed to show that the order sought to be appealed from is final as required by section 500.11 (d) (1) (iv) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iv]).


text:
    Kathleen J. Coakley et al., Appellants, v Donald Gabel, Respondent, et al., Defendants.
    Submitted July 30,1990;
    decided October 18, 1990
   Motion for leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to this Court, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Naim G. Mussalli, Appellant, v Board of Regents of the University of the State of New York, Respondent.
    Submitted August 13,1990;
    decided October 18, 1990
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    In the Matter of Francis I. Benjamin.
    Decided October 23, 1990
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Francis I. Benjamin is suspended, with pay, effective immediately, from his office of Justice of the Jewett Town Court pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    Talakkottur R. David, Appellant, v American Telephone & Telegraph Company et al., Respondents.
    Submitted October 15, 1990;
    decided October 23, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Louise DePaolo et al., Appellants, v B. George Wisoff et al., Respondents.
    Submitted August 27, 1990;
    decided October 23, 1990
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals.

Chief Judge Wachtler and Judge Bellacosa taking no part.


text:
    In the Matter of Elizabeth Holtzman, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted September 24,1990;
    decided October 23, 1990
   Motion to dismiss appeal denied.


text:
    Lawrence S. Kaufman et al., Respondents, v Haverstraw Road Lands, Inc., Appellant.
    Submitted September 4,1990;
    decided October 23, 1990
   Motion for leave to appeal from the portion of the Appellate Division order that affirmed Supreme Court’s order denying defendant’s motion to vacate dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    Celestino Lucas, Respondent, v New York City Transit Authority, Appellant.
    Submitted August 27,1990;
    decided October 23, 1990
   Motion to dismiss appeal taken as of right granted and appeal dismissed, without costs, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    In the Matter of Joseph P. Menaldino, as Commissioner of the Warren County Department of Social Services, Respondent, v Carol Johnson et al., Appellants.
    Submitted August 13,1990;
    decided October 23, 1990
   Motion for leave to appeal dismissed upon the ground that no appeal lies from an Appellate Division order dismissing an appeal from a determination entered upon a default (CPLR 5511).


text:
    The People of the State of New York, Appellant, v Miguel Garcia, Respondent.
    Decided October 23, 1990
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Respondent, v Johnny Rivera, Appellant.
    Submitted October 9,1990;
    decided October 23, 1990
   Motion, treated as a request for relief ancillary to defendant’s criminal leave application, dismissed upon the ground that the Court of Appeals is without jurisdiction to entertain it.


text:
    Gerard A. Pollicina, as Administrator of the Estate of Barbara A. Pollicina, Deceased, Respondent, v Misericordia Hospital Medical Center et al., Defendants, and Hospital of the Albert Einstein College of Medicine, Appellant.
    Submitted August 27,1990;
    decided October 23, 1990
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).

Judge Bellacos a taking no part.


text:
    Victor Weingarten et al., Appellants-Respondents, v Town of Lewisboro, Respondent-Appellant.
    Submitted October 22,1990;
    decided October 23, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that defendant-appellant is not aggrieved by the determination at the Appellate Division.


text:
    In the Matter of Alfred K. Hicks, Sr., Appellant, v William J. Egan et al., as Commissioners of Elections, Constituting the Board of Elections of Dutchess County, Respondents.
    Submitted October 31,1990;
    decided November 1, 1990
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of General Electric Company, Appellant, v New York State Department of Labor et al., Respondents.
    Argued October 16, 1990;
    decided November 15, 1990

      APPEARANCES OF COUNSEL

      James S. Frank, Virgil B. Day, Marc S. Wenger and Neil A. Capobianco for appellant.

      Robert Abrams, Attorney-General (M. Patricia Smith, O. Peter Sherwood, Peter H. Schiff and Jane Lauer Barker of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice T. Paul Kane at the Appellate Division (154 AD2d 117).

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


text:
    In the Matter of the Grand Jury Subpoena of Lynne F. Stewart et al., Respondents. Special Prosecutor of State of New York, Appellant.
    Submitted September 4,1990;
    decided November 15, 1990
   Motion to withdraw appeal granted.


text:
    In the Matter of Mary Compo, as Mother of Marissa Compo, an Infant, Appellant, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued October 17,1990;
    decided November 20, 1990

      APPEARANCES OF COUNSEL

      Michael Religa and Mark W. Swimelar for appellant.

      Robert Abrams, Attorney-General (Peter H Schiff, Francis V. Dow and O. Peter Sherwood of counsel), for Cesar A. Perales, as Commissioner of the New York State Department of Social Services, respondent.

      S. Jean Wagoner, as Commissioner of Jefferson County Social Services, respondent, precluded.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, respondents’ determination annulled and the matter remitted to Supreme Court, Jefferson County, with directions to remand to the Jefferson County Department of Social Services for further proceedings in accordance with this memorandum.

Petitioner applied to the Jefferson County Department of Social Services for medical assistance for her infant child, Marissa, contending that she would be "disabled” continuously for at least 12 months from birth. The Regulations of the Department of Social Services define "disability” as "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months” (18 NYCRR 360-5.2 [b]). The State Disability Review Team recommended that benefits be denied finding that Marissa had a "medically determinable impairment” but that the impairment did not satisfy the durational requirement — continuous disability for at least 12 months. The Jefferson County Department of Social Services denied assistance based upon that recommendation.

After a fair hearing, Commissioner Perales affirmed the denial of petitioner’s application for medical assistance finding that there was nothing to indicate that the disability would be continuous for at least 12 months. We conclude that the Commissioner’s determination is arbitrary and capricious and not supported by substantial evidence.

The regulations provide that the Commissioner’s decision after a fair hearing must be based "exclusively on the fair hearing record” (18 NYCRR 358-6.1 [a]). At the fair hearing, petitioner testified concerning Marissa’s condition, hospitalization and treatment. She also submitted medical evidence of duration which included two reports of Marissa’s treating physicians indicating that the disability would last for at least 12 months, her continuing medical and hospital bills, a discharge summary from the hospital indicating Marissa’s discharge diagnosis as bronchiolitis, and an interoffice memo of the Jefferson County Department of Social Services reciting that a third treating physician considered Marissa disabled. This evidence satisfied the requirement that petitioner establish prima facie entitlement to benefits based on a disability lasting longer than 12 months.

The evidence submitted by the county at the hearing consisted only of the four reports of the Disability Review Team. They are inconsistent and contradictory in their findings, conclusory in nature and based on evidence not contained in the record. Moreover, they are substantially controverted by the reports of treating physicians and testimony at the fair hearing which prima facie established that Marissa was disabled for a period of 12 continuous months. On this record, respondents’ determination is arbitrary and should be annulled for lack of substantial evidence to support it. The matter should be remanded for the calculation of the appropriate benefits with a direction for payment to petitioner.

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

Judgment reversed, etc.


text:
    The People of the State of New York, Respondent, v John Claud, Appellant.
    Argued October 12,1990;
    decided November 20, 1990
    APPEARANCES OF COUNSEL

      Martin I. Saperstein for appellant.

      James M. Catterson, Jr., District Attorney (Ronald E. Lipetz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the facts (see, CPL 470.25 [2] [d]; 470.40 [2] [b]).

Following an incident in which defendant operated his vessel in a manner causing serious physical injuries, defendant was charged with violations of Babylon Town Code §§ 86-3 (unregistered vehicle) and 86-4 (careful and prudent operation of a vessel) in Second District Court in Babylon. He was also charged by an information filed in First District Court in Hauppauge with operating a vessel while intoxicated, pursuant to Navigation Law § 49 (4) (a) (2), which was dismissed. The Suffolk County Grand Jury thereafter returned a two-count indictment, charging defendant with operating a vehicle while in an intoxicated condition and assault by operation of a vessel under Navigation Law § 49 (4) (b) (2) in relation to the same incident.

On January 4, 1988, defendant pleaded guilty to the Town Code violations. County Court thereafter granted defendant’s motion to dismiss the second count of the indictment charging him with assault by operating a vessel in the second degree, finding that prosecution barred by CPL 40.20 (2). The People successfully appealed County Court’s order granting defendant’s motion to dismiss the second count of the indictment. In reversing, and reinstating that count, the Appellate Division held that the second prosecution was not barred because it fell within the exceptions of CPL 40.20 (2) (a) in that the elements of the pertinent provisions of the Navigation Law and the Babylon Town Code were substantially different. That court also concluded that since two different geographical areas are involved and the two laws are materially different in scope and purpose they are not designed to prevent the same "kinds of harm or evil” and therefore the second prosecution also falls within the exception of CPL 40.20 (2) (b). We disagree.

Defendant’s prior prosecution under the Babylon Town Code bars the subsequent Navigation Law § 49 (4) (b) (2) prosecution (see, CPL 40.20 [1]). CPL 40.20 (2) prohibits separate prosecutions for two offenses based upon the same act or criminal transaction unless "(a) [t]he offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other” (emphasis supplied). Although the relevant elements of Navigation Law § 49 (4) (b) (2) arguably are "substantially” different from the elements of the relevant Babylon Town Code provisions, defendant’s careless operation of the boat constitutes the same act giving rise to both offenses (see, Matter of Schmidt v Roberts, 74 NY2d 513, 522), and indeed comprises the same transaction (see, Matter of Corbin v Hillery, 74 NY2d 279, 291, affd sub nom. Grady v Corbin, 495 US —, 110 S Ct 2084). Thus, the exception of CPL 40.20 (2) (a) does not apply.

The exception under CPL 40.20 (2) (b) is similarly inapplicable. Paragraph (b) permits separate prosecutions for two offenses based upon the same act or criminal transaction only where "[e]ach of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil” (emphasis supplied). Although Navigation Law § 49 (4) (b) (2) requires a finding of intoxication — a finding unnecessary under the Babylon Town Code’s "careful operation” subdivision — the two statutory provisions were not designed to prevent "very different kinds of harm or evil.” Notwithstanding that the Navigation Law refers to the prevention of serious physical injury and the Town Code commands the operation of a boat in a careful and prudent manner, both provisions are designed to assure the safe operation of boats so as to protect human life and avoid injury. Finally, contrary to the Appellate Division’s conclusion, that two different geographical areas are involved is not determinative (see, Matter of Wiley v Altman, 52 NY2d 410, 415; see also, Matter of Schmidt v Roberts, 74 NY2d, at 522-523, supra).

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Mark Wallace, Appellant.
    Argued October 12,1990;
    decided November 20, 1990

      APPEARANCES OF COUNSEL

      Robert S. Dean and Philip L. Weinstein for appellant.

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

Memorandum.

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

Defendant has been convicted of criminal sale of a controlled substance, third degree. At trial, the undercover officer testified that he wrote defendant’s description as he was broadcasting it over the police radio, and the arresting officer stated that he recorded the description as he was receiving that broadcast. The undercover officer further testified that he performed a postarrest "drive by” identification of defendant; that he made two subsequent drug purchases; and that he prepared "buy” reports on all three drug purchases later that evening. Both officers admitted that they discarded the written descriptions following defendant’s arrest.

On this appeal, we do not consider whether the notes actually constitute Rosario material because the People do not dispute that point (see, People v Haupt, 71 NY2d 929; People v Gilligan, 39 NY2d 769). Similarly, the People do not contend that the officers exercised due care in preserving these notes. Rather, their sole argument here is that defendant was not prejudiced by the discarding of this material and we limit our review to that question.

Under the facts of this case defendant was impermissibly prejudiced. The written descriptions would have been helpful to defendant in cross-examining the officers, given the importance of the identificátion issue in the case, and the arresting officer’s testimony on direct examination that he wrote down a description of defendant as it came over the radio. The undercover officer’s claim that he incorporated the description of defendant into his "buy” report did not alleviate that prejudice. There is no way to know whether the description contained in the "buy” report matched those contained in the lost notes. This concern seems especially apt considering that the "buy” report was prepared after the defendant’s arrest, and after the undercover officer had performed a confirmatory "drive by” identification.

In these circumstances, the trial court should have imposed a sanction. Where the People fail to exercise due care in preserving Rosario material, and defendant is prejudiced thereby, "the [trial] court must impose an appropriate sanction” (People v Martinez, 71 NY2d 937, 940 [emphasis added]). Although the trial court had discretion to determine the specific sanction to be imposed (see, People v Kelly, 62 NY2d 516, 521), it was an abuse of discretion to decline to impose any sanction where, as here, defendant was prejudiced.

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

Order reversed, etc.


text:
    Lewis Dorfman, Individually and as Administrator of the Estate of Regina Dorfman, Deceased, Appellant, v Sheldon Leidner, Respondent. (Action No. 1.) Dena Davidson, Appellant, v Community General Hospital, Defendant, and Joseph Lauterstein, Respondent. (Action No. 2.)
    Argued October 11,1990;
    decided November 20, 1990

      APPEARANCES OF COUNSEL

      Gerald Orseck for appellants.

      Myra I. Packman for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs’ lawyer in these two medical malpractice cases used the same process server in an attempt to start the actions by delivering copies of the summonses and complaints to employees at the defendant doctors’ offices. Subsequently, copies of the summonses and complaints were mailed to the doctors’ offices. Supreme Court granted defendants’ motions for summary judgment dismissing the actions for lack of personal jurisdiction. The Appellate Division affirmed, rejecting plaintiffs’ argument that service was effective under CPLR 308 (1) or, alternatively, under CPLR 308 (2) as amended in 1987.

Delivery of the summonses and complaints to employees of the defendant doctors did not effect authorized service under CPLR 308 (1). Its requirement that a summons be delivered “to the person, to be served” has been applied in accordance with its plain and literal language (Espy v Gior lando, 85 AD2d 652, affd 56 NY2d 640, 642). In Espy, we found CPLR 308 (1) unsatisfied where delivery of a summons was made outside the presence of the defendant doctor to a nurse, who told the process server that she was authorized to accept service for the doctor. In the instant cases, as in Espy, delivery was made to employees of the doctors outside the doctors’ presence. Unlike Espy, there was no showing of a contemporaneous, express representation of authority. Inasmuch as we held in Espy that service is ineffective even when such a representation is made, the case for refusing "to extend the clear and unambiguous meaning of CPLR 308 (subd 1)” is more compelling here (Espy v Giorlando, 56 NY2d, supra, at 642).

Plaintiffs, nevertheless, advance an argument sounding in estoppel, based on the process server’s statement that he had served doctors in the defendants’ medical group on at least 15 prior occasions by delivering summonses to their office employees. He claims that the unnamed employees told him at some unspecified time that the doctors would not come to the waiting room to accept service or allow a process server in their offices or examining rooms, and that "under such circumstances” they were authorized to accept service. We are unpersuaded by this argument, which we decided not to reach in Macchia v Russo (67 NY2d 592, 594-595). An exception to CPLR 308 (l)’s plain requirement should not be added by the court even when a process server claims to act on an express or implied misrepresentation of specific authority from "the person to be served”.

Service of process is carefully prescribed by the Legislature, which affords litigants ample methods for serving natural persons. Regularity of process, certainty and reliability for all litigants and for the courts are highly desirable objectives to avoid generating collateral disputes (see, McDonald v Ames Supply Co., 22 NY2d 111, 116). These objectives are served by adherence to the statute and disserved by judicially engrafted exceptions to CPLR 308 (1) (CPLR 308 [2]; see also, Macchia v Russo, supra, at 594; duPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 797).

Plaintiffs alternatively urge that the 1987 amendment to CPLR 308 (2) should be retroactively applied to validate their purported service of process. In 1986, when plaintiffs attempted to commence these actions, CPLR 308 (2) provided that a summons could be served by delivering it to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served, followed by mailing another copy of the summons to his or her last known residence. Plaintiffs concede that they did not mail copies of the summonses and complaints to defendants’ residences. They urge us to apply the 1987 amendment to CPLR 308 (2), which permits mailing to either a defendant’s last known residence or actual place of business.

Statutes are generally applied prospectively in the absence of express or necessarily implied language allowing retroactive effect (McKinney’s Cons Laws of NY, Book 1, Statutes §51 [b]). Rather than clear legislative expression permitting retroactive application of the 1987 amendment to CPLR 308 (2), the Legislature expressly provided it “shall take effect on the thirtieth day after it shall have become a law” (L 1987, ch 115, § 2). We therefore agree with the Appellate Division that retroactive application is not available to “cure” defective service in actions “commenced” before the remedial procedural amendment became law. In any event, the records in these cases do not indicate that plaintiffs met the technical prescriptions of CPLR 308 (2), even as amended.

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

In each case: Order affirmed, with costs, in a memorandum.


text:
    Leon Da Silva, Respondent, v Antonio Musso et al., Defendants, and Sun Place Realty Corp., Appellant.
    Submitted October 1,1990;
    decided November 20, 1990
   Motion to amend remittitur dismissed as untimely (22 NYCRR 500.11 [g] [3]; see, Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 999). [See, 76 NY2d 436.]


text:
    The People of the State of New York, Respondent, v Jack Gelb, Appellant.
    Argued October 11,1990;
    decided November 27, 1990

      APPEARANCES OF COUNSEL

      Steven M. Schapiro and Perry S. Reich for appellant.

      Edward J. Kuriansky, Deputy Attorney-General (Bonnie H Stein and Donald H. Zuckerman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In 1984 the defendant pleaded guilty to grand larceny relating to Medicaid fraud and was sentenced to five months in prison. In connection with the plea he surrendered his license to practice dentistry in this State and sold his office in a local clinic to another dentist. Upon completion of his sentence, in February of 1985, he returned to the clinic and performed certain dental services which led to his being indicted for practicing a profession without a license (Education Law § 6512 [1]). At the trial he introduced evidence that he was still licensed to practice in other States when he performed these services and claimed that he had simply acted as a consultant for a local doctor, which is a permitted activity for a dentist licensed in another State (Education Law § 6610 [5]). The jury found the defendant guilty of two counts and the Appellate Division affirmed.

On this appeal the defendant’s primary contention is that the court’s charge to the jury with respect to the exemption for consulting dentists erroneously placed the burden on him to prove his status as a consultant.

There was evidence adduced at trial that on February 23, 1985, the defendant examined two patients, a mother and daughter, and that he prescribed a course of treatment for the mother and filled a cavity for her daughter. However, the defendant notes that the clinic’s records show only that the patients received dental examinations on that date and claims that the jury could find that he acted lawfully as a consultant if he did nothing more than examine the patients. He also notes that the Legislature has not expressly denominated this exemption as an affirmative defense and argues that the court therefore erred in charging the jury that he had the burden of proving that he acted as a consultant.

Even if, as the defendant contends, the exemption creates an ordinary defense which the People had the ultimate burden of disproving, the defendant had the initial burden of eliciting sufficient facts to raise a colorable claim that he acted only as a consultant (cf., People v Steele, 26 NY2d 526, 528) and in this respect he failed. The practice of dentistry includes performing examinations (Education Law § 6601), and the statute does not create a broad exemption from the licensing requirement that permits dentists licensed in another State to perform examinations whenever they occur in the office of a physician licensed here. It applies only to consultations, and in the absence of any evidence showing that the examination was for that limited purpose and of that special character, no issue is presented with respect to the exemption. The evidence in this case was merely that the defendant, licensed in another State, performed dental examinations here in the office of a dentist licensed in New York. That simply established a violation of the law and cannot, without more, simultaneously raise the defense. Thus the court’s charge with respect to exemption for consultants, if erroneous, must be deemed to be harmless (cf., People v Lam, Lek Chong, 45 NY2d 64).

We have considered the defendant’s other contentions and agree with the Appellate Division, for the reasons stated in its memorandum, that they do not require a reversal.

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

Order affirmed in a memorandum.


text:
    Jo & Wo Realty Corporation, Appellant, v City of New York et al., Respondents, et al., Defendant.
    Argued October 10,1990;
    decided November 27, 1990

      APPEARANCES OF COUNSEL

      Kenneth G. Schwarz, Deborah J. Locitzer, Richard S. Fischbein, and Alan M. Gelb for appellant.

      Victor A. Kovner, Corporation Counsel (Elizabeth Dvorkin and Francis F. Caputo of counsel), for City of New York and another, respondents.

      Robert P. LoBue and Stephen P. Younger for Metropolitan Transit Authority and another, respondents.

      Steven E. Landers and Robert A. Atkins for Boston Properties, respondent.
   OPINION OF THE COURT

Memorandum.

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

Only a narrow question of statutory interpretation is presented: whether defendants City of New York and the Triborough Bridge and Tunnel Authority (TBTA), a public authority created by the provisions of the Public Authorities Law and with the powers specified therein (Public Authorities Law § 525 et seq.) may sell real property to defendant Boston Properties without adhering to the competitive bidding requirements contained in section 384 of the New York City Charter.

The property was purchased by TBTA in 1953 as part of a larger urban renewal project undertaken by the City. It paid the appraised price of $2.1 million to the City and developed the property in accordance with the City’s urban renewal plan by building the New York Coliseum at Columbus Circle. After the development of the Javits Convention Center, however, TBTA could not economically maintain the Coliseum and now chooses to sell it.

The Public Authorities Law, under which the 1953 conveyance to the TBTA was accomplished, authorizes the City to convey any lands owned by the City, with or without consideration, to the TBTA by deed "for so long as [TBTA’s] corporate existence shall continue” (Public Authorities Law § 557-a [3]). The statute also authorizes TBTA to acquire property by purchase, in the name of the City, and "use the same so long as its corporate existence shall continue” (Public Authorities Law § 553 [4]). When the property is no longer necessary for its corporate purposes, TBTA may surrender the property to the City (Public Authorities Law § 553 [4-a] [a]) or sell or convey the property "acquired by the city at the expense of the authority” (Public Authorities Law § 553 [4-a] [b]). Inasmuch as TBTA acquired the property in question at its own expense, the statute authorizes it to sell it and no provision of law requires TBTA to seek competitive bids (see, Matter of New York Post Corp. v Moses, 10 NY2d 199, 205).

Plaintiff argues that the property is owned by the City, to be held by TBTA only during its corporate existence with a reversion thereafter to the City. TBTA, having paid for the property, however, may convey the property to a third party and the conveyance includes both its interest and the City’s statutory contingent reversionary interest conveyed by TBTA "in behalf of [the] city” (Public Authorities Law § 553 [4-a] [b]).

In view of this disposition, we need not address plaintiffs contention that the property is not exempt from the Charter’s competitive bidding requirements by the Urban Renewal Law (General Municipal Law § 500 et seq.).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of David Foster, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
    Argued October 17,1990;
    decided November 27, 1990

      APPEARANCES OF COUNSEL

      James M. Bogin and David C. Leven for appellant.

      Robert Abrams, Attorney-General (Patrick Barnett-Mulligan, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, an inmate of Great Meadow Correctional Facility, was charged in a misbehavior report with assault and fighting in violation of prison disciplinary rules. The misbehavior report, dated the day after the incident, was prepared and signed by a correction officer who had not himself witnessed the events but, according to the petition, had obtained a statement from the victim. The report recited the full details of the incident, including time, place, circumstances, and the names of three participants (including petitioner), and it described both petitioner’s role in the attack and the victim’s injury — a cut over his left eye. At the disciplinary hearing, the victim denied the assault, denied that petitioner had anything to do with his injury, denied speaking to a correction officer about the incident, and further testified that the cut over his eye was the result of having tripped and hit his head "against the floor or the table.” Based on the misbehavior report and the victim’s testimony, petitioner was found guilty of both charges; the Hearing Officer explicitly rejected the victim’s recantation as incredible. Petitioner now asserts that the finding of guilt was not supported by substantial evidence because the author of the misbehavior report did not personally observe the incident.

A written misbehavior report can constitute substantial evidence of an inmate’s misconduct (Matter of Perez v Wilmot, 67 NY2d 615, 616-617; People ex rel. Vega v Smith, 66 NY2d 130). The focus of the court’s inquiry therefore is not on whether the evidence is hearsay, but on whether it is "sufficiently relevant and probative” (Matter of Perez v Wilmot, supra; People ex rel. Vega v Smith, supra, at 140) to constitute substantial evidence. A misbehavior report may be made by an employee "who has observed the incident or who has ascertained the facts.” (7 NYCRR 251-1.4 [b].) Here, the misbehavior report was made by an employee who ascertained the facts from the victim just after the assault, and it contained a highly detailed account of the incident given at that time, including a description of the attack on him. The victim’s injury unquestionably occurred, and was observable. There was no evidence of any motive to implicate petitioner falsely. The victim’s later denials and explanations for the injury at the disciplinary hearing served only to present a credibility issue, which the Hearing Officer — having seen and heard the victim testify — resolved in favor of the statements made in the misbehavior report. In these circumstances, we conclude that the determination was supported by substantial evidence.

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

Judgment affirmed, without costs, in a memorandum.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Elias Barrientos Sirno, Appellant.
    Argued October 17,1990;
    decided November 27, 1990
    APPEARANCES OF COUNSEL

      Mary C. Rothwell and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division, should be affirmed.

Following a Huntley hearing, Supreme Court found that, subsequent to placing defendant under arrest, a detective read defendant a statement of his Miranda rights and proceeded to ask defendant a question. Defendant did not respond; rather, he asked in English if he could see the warnings in Spanish. The detective obtained a card with the Miranda warnings written in Spanish and instructed defendant to read it, record "yes” or "no” after each statement and, if he did not understand, to so indicate. Defendant wrote "yes” next to each statement, did not ask any questions and immediately proceeded to give a statement to the detective. In light of these undisturbed findings, the courts below properly held defendant implicitly waived his Miranda rights. We have previously held that a waiver may be inferred (see, People v Davis, 55 NY2d 731), and it is difficult to imagine that a defendant could implicitly manifest waiver in a manner other than cooperating with his or her interrogation, or that such cooperation could be interpreted as anything other than the defendant’s intention to waive those rights. Accordingly, where, as here, undisturbed findings have been made that a defendant clearly understands his Miranda rights and promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights (see, People v Davis, id.; North Carolina v Butler, 441 US 369; cf., People v Williams, 62 NY2d 285, 290).

Titone, J.

(dissenting). In Miranda v Arizona (384 US 436), the Supreme Court held that a suspect in custody cannot be interrogated until he has been sufficiently informed of his rights and has decided to waive them. While it is well established that the required waiver need not be explicit and may be inferred from the suspect’s conduct (North Carolina v Butler, 441 US 369, 373; see, People v Davis, 55 NY2d 731), the Supreme Court has never abrogated the basic principle that the inference may not be made "simply from the silence of the accused after the warnings are given or simply from the fact that a confession was in fact eventually obtained.” (Miranda v Arizona, 384 US 436, 475, supra.) In this case, unlike most others in which courts have found waivers from the suspect’s conduct, there was, in truth, nothing more than the accused’s silence and the bare fact that a confession was obtained. Accordingly, I dissent from the majority’s decision to uphold the denial of defendant’s suppression motion.

A brief comparison of the salient facts in this case with the facts in other cases in which waivers have been found demonstrates the degree to which the majority has violated the Miranda prescription. In North Carolina v Butler (supra), the Court held that a finding of waiver was not precluded where the defendant, after affirmatively stating that he understood his rights, told the police he was willing to speak but would not sign a written waiver form (see also, United States v Ogden, 572 F2d 501). Two other significant Federal decisions found valid waivers where the suspect had affirmatively stated he understood his rights and then made his inculpatory statement (United States v Hilliker, 436 F2d 101 [cited in North Carolina v Butler, supra, at 375, n 5]; United States v Mix, 446 F2d 615; accord, State v Baker, 2 Kan App 2d 395, 580 P2d 90).

In Gorham v Franzen (760 F2d 786, 794), the Court of Appeals for the Seventh Circuit surveyed the case law and adopted a "totality of the circumstances” test, listing as appropriate factors " 'the [defendant’s] age, experience, education, background, and intelligence, and * * * capacity to understand the warning given him’ ” (see, Johnson v Zerbst, 304 US 458, 464). In finding a waiver on the facts before it, the Gorham court stressed the defendant’s extensive prior experience with the criminal justice system and his positive acknowledgement that he understood his rights as they had been given to him (id., citing LaFave & Israel, Criminal Procedure, at 310 [1985 ed]; accord, Fleming v State, 284 Ark 307, 681 SW2d 390). A similar approach was taken in State v Aversa (197 Conn 685, 696, 501 A2d 370, 376), in which a waiver was found where the accused told the detective that he understood the rights that had just been read and "[h]is overall attitude and conduct exhibited a street-wise familiarity with police procedures.” Indeed, in the one recent case in which we squarely considered the problem of inferring a Miranda waiver from the suspect’s conduct, this Court took pains to note that the "defendant had been arrested on approximately 11 prior occasions.” (People v Davis, 55 NY2d 731, 733, supra.)

In contrast to these cases, this case involves no special facts that could serve to distinguish it from all others in which the police elicit an incriminating statement before obtaining a waiver of the suspect’s Miranda rights. The record here does not reveal an extensive criminal history, such as was present in Gorham and Davis. Nor are any other special circumstances present which would support the inference that a conscious and deliberate waiver had occurred. In fact, unlike every other case in which a waiver has been found, this case does not even include a positive acknowledgement by the defendant that he understood the rights he was waiving. For that reason, the majority’s resort to the talismanic "mixed question” doctrine, which insulates the lower courts’ "undisturbed findings” from our review when they are supported by the record (see, e.g., People v Ferro, 63 NY2d 316, 321, n 2; People v Harrison, 57 NY2d 470, 477; see also, People v Centono, 76 NY2d 837, 840-841 [Titone, J., dissenting]), is unvailing here. As a review of the facts developed on the record reveals, there is simply no circumstance in this case— apart from the bare fact of defendant’s statement itself — from which a waiver of rights could be inferred.

Having expressed some discomfort with the English version of the Miranda warnings, defendant was given the Spanish version to read to himself and was told he could ask any questions he might have. Unlike the English version that is often used, the Spanish form defendant was given did not ask whether he understood the described rights or contain any other question requiring a "yes” or "no” response. Nevertheless, defendant was told to write "either yes or no according to each question.”

Given the ambiguity of the latter instruction, as well as the inherent meaninglessness of writing "yes” or "no” next to a declarative statement of rights, defendant’s conduct in writing "yes” in English next to each "warning” on the form certainly cannot be construed as an affirmative acknowledgement of his understanding that the law would protect him if he chose not to speak. Further, defendant’s failure to ask any questions after reading the form does not satisfy the People’s heavy burden of demonstrating that a waiver of important constitutional rights has occurred (see, North Carolina v Butler, supra, at 373). At most, that aspect of defendant’s conduct constitutes no more than a form of "silence” of the type that will not by itself support an inference of waiver (Miranda v Arizona, supra, at 475).

In short, by upholding the finding of waiver in the courts below, this Court has gone well beyond what other courts have done in inferring waiver from a suspect’s post-Miranda conduct. By agreeing that a waiver was proven here, the majority has, in effect, had to rely exclusively upon "the silence of the accused,” coupled with "the fact that confession was in fact eventually obtained,” in direct contravention of the Miranda holding (384 US, at 475, supra). Further, the majority’s assertion that "it is difficult to imagine [how] a defendant could implicitly manifest waiver * * * other than [by] cooperating with his or her interrogation” (majority mem, at 968) is not a persuasive ground for its holding, since both the Miranda decision itself and the subsequent decision in North Carolina v Butler (supra, at 373) expressly rejected the defendant’s mere act of cooperating as a sufficient predicate for finding a Miranda waiver.

Most seriously of all, after the majority’s decision in this case, it will indeed be "difficult to imagine” a circumstance where an implied waiver will not be found as a result of the defendant’s voluntary agreement to speak after having been given Miranda warnings. Hereafter, there will be no logical basis for rejecting a finding of waiver unless the defendant shows some special circumstance undermining the inference of waiver that arises from his or her "cooperation.” Since that conclusion inverts the well-established burden of proof and makes a general rule out of what was once simply an available outcome in "some cases” (North Carolina v Butler, supra, at 373), I cannot embrace it. Accordingly, I would instead hold that the statement in question was taken before an effective waiver of Miranda rights was obtained. Consequently, it should have been suppressed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone dissents and votes to reverse in an opinion.

Order affirmed in a memorandum..


text:
    Leonard Cohen, Appellant, v Ernestine Berger, Respondent.
    Submitted October 29,1990;
    decided November 27, 1990
   Motion, insofar as it seeks to dismiss the appeal taken as of right, granted and appeal dismissed with $400 costs and $100 costs of motion, upon the ground that no substantial constitutional question is directly involved; motion, insofar as it seeks sanctions and attorney’s fees, denied.


text:
    In the Matter of the Estate of Nancy Hogan, Deceased. Samuel B. Wallace, Appellant.
    Submitted November 5,1990;
    decided November 27, 1990
   Motion for reconsideration of this Court’s September 19, 1990 order of transfer and for clarification of the determination denied. [See, 76 NY2d 886.]


text:
    Paul E. Noel, Appellant, v Department of Sanitation of the City of New York, Respondent.
    Submitted October 29,1990;
    decided November 27, 1990
   Motion for reargument of motion for leave to appeal dismissed as untimely (22 NYCRR 500.11 [gj [3]). [See, 76 NY2d 825.]


text:
    In the Matter of Lonza Henderson, Appellant, v Emanuel P. Popolizio, as Chairman of the New York City Housing Authority, Respondent.
    Argued October 12,1990;
    decided November 29, 1990

      APPEARANCES OF COUNSEL

      David Pieragostini, John C. Gray, Jr., Russell Engler and Tracy Miller for appellant.

      Joan Pannell and Manuel H. Quintana for respondent.
   OPINION OF THE COURT

Memorandum.

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

After the death of a tenant in a city housing project subsidized by the Federal Government, petitioner claimed the right to retain the apartment as the last surviving family member of the deceased tenant. He stated that he had been the tenant’s common-law husband for many years, had signed the lease with her, and they both had resided in the apartment prior to her death. Respondent’s records, however, showed that the lease had been signed only by the tenant who had stated that she would be residing alone in the apartment. Petitioner’s claim was rejected after an informal hearing. Respondent also denied his subsequent request for a formal hearing because he had failed to make a "reasonable showing” that he had resided in the apartment with the knowledge or permission of the authority as is required by its rules.

Respondent subsequently commenced an eviction proceeding and petitioner brought this article 78 proceeding. Petitioner contends that under a Federal regulation (24 CFR 966.4 [m]) and the Due Process Clause, he had an absolute right to a hearing before the agency commenced eviction proceedings against him. The courts below dismissed the proceeding and petitioner appeals.

The Federal regulation grants certain rights to tenants residing in facilities operated by a public housing agency receiving funds pursuant to the United States Housing Act of 1937 (42 USC § 1437 et seq.). Among these guarantees is the right to a hearing on individual disputes which "adversely affect the individual tenant’s rights, duties, welfare or status” (24 CFR 966.50, 966.51 [a]; 966.52, 966.53 [a]). A tenant is broadly defined to include the lessee and the lessee’s family (24 CFR 966.53 [f]), which in turn includes "the remaining member of a tenant family” (24 CFR 912.2).

These requirements are implemented by rules contained in respondent’s Management Manual. The Manual provides that a person who becomes a member of the tenant’s family with the knowledge and approval of the respondent, and who remains in occupancy when the tenant dies, is entitled to a lease for the premises if otherwise eligible for public housing (NYCHA Management Manual, ch VII, subd E [1] [a]). All other persons claiming the rights of a remaining family member are entitled to a grievance hearing if they make a "reasonable showing” that they are in the apartment with the knowledge or permission of the respondent and continue to pay "use and occupancy” after the tenant’s death (id., subd E [1] [b]). The Manual sets forth examples indicating that this requirement may be satisfied by "[inclusion of the claimant on the yearly Affidavit of Income; [e]ntries in the tenant folder that permission to reside in the household was requested, or that the tenant had informed [NYCHA] of a 'temporary’ housing arrangement; [and] [participation by the claimant in project activities, to the point where the community accepts the individual as a resident of the apartment” (id., subd E [1] [b] [1]). Petitioner has not offered any proof of this nature.

The obvious purpose for the procedure adopted by respondent is to screen out unfounded or untenable claims and thus ease the administrative burden and avoid additional delays for the many thousands of eligible individuals and families waiting for public housing to become available. This is consistent with the over-all purpose of the Federal law and nothing in the Federal regulation requires respondent to grant a formal hearing to every person who makes a bare assertion that he or she is the remaining family member of a deceased tenant but is unable to make a preliminary showing that the claim is reasonably based.

Neither is there any merit to petitioner’s argument that he has been denied due process. Petitioner had the opportunity to present his side of the case at the informal hearing and will be able to do so again at the eviction proceeding which is still pending. Fundamental fairness does not require that he be afforded a third opportunity to be heard on the claim. In essence, respondent has adopted a form of administrative summary judgment which is not inconsistent with the requirements of due process or prohibited by the Federal regulation.

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

Order affirmed, without costs, in a memorandum.


text:
    Charlotte Horovitz et al., Appellants, et al., Plaintiff, v Roadworks of Great Neck, Inc., et al., Defendants, and Citibank, N. A., Respondent. (And a Third-Party Action.)
    Argued October 10,1990;
    decided November 29, 1990

      APPEARANCES OF COUNSEL

      Andrew J. Goodman and Marianne F. Murray for appellants.

      Thomas J. McNamara for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs, the drawers of a number of checks, commenced an action against Citibank, contending that, while acting in its capacity as depositary bank, Citibank had improperly collected their checks in the absence of the named payee’s indorsement. Prior to trial, Citibank moved to dismiss the complaint against it, contending that a depositary bank could not be held liable to a drawer of a check, except in certain limited circumstances not present here. That motion was denied. On appeal, however, the Appellate Division reversed and dismissed the complaint against Citibank.

This case falls squarely within the general rule that a drawer does not have a direct cause of action against a depositary bank for collecting an improperly indorsed check (see, Prudential-Bache Sec. v Citibank, 73 NY2d 263, 272; Spielman v Manufacturers Hanover Trust Co., 60 NY2d 221, 224; Underpinning & Found. Constructors v Chase Manhattan Bank, 46 NY2d 459, 464-466). Contrary to plaintiffs’ contention, the rationale underlying this rule is not limited to situations where the payee’s name is forged, but instead applies whenever a check is ineffectively indorsed (see Underpinning, supra, at 464-466). Further, since it is undisputed that both Citibank and the drawee bank acted improperly, the narrow exception set forth in Underpinning (supra, at 466)— implicated when the depositary bank has acted wrongfully, yet the drawee has acted properly — is inapplicable.

Plaintiffs’ reliance on Costello v Oneida Natl. Bank & Trust Co. (109 AD2d 1085, affd 66 NY2d 619) is likewise misplaced. That case involved a payee’s right to assert a direct action against a depositary bank under UCC 3-419. That section, however, does not give a drawer a similar right, nor does any other provision of the Code.

Finally, plaintiffs’ contention that Citibank is liable under UCC 4-207 (1) for breach of its transfer and presentment warranties is unavailing. Since plaintiffs, as drawers, do not constitute “other payors” within the intendment of that statute, they cannot claim the benefit of its warranties (see, Leonard Smith, Inc. v Merrill Lynch, Pierce, Fenner & Smith, 113 AD2d 387, 391-392, appeals dismissed 67 NY2d 755, 67 NY2d 984, lv denied 68 NY2d 661; 1 White & Summers, Uniform Commercial Code § 15-9, at 776-777 [Practitioner’s— 3d ed]).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of American Transit Insurance Company, Appellant, v James P. Corcoran, as Superintendent of Insurance of the State of New York, Respondent.
    Argued October 10,1990;
    decided November 29, 1990

      APPEARANCES OF COUNSEL

      Marjorie E. Bornes and Donald Jay Schwartz for appellant.

      Robert Abrams, Attorney-General (Frederic L. Lieberman, O. Peter Sherwood and Lawrence S. Kahn of counsel), for respondent.

      Robert F. Rhinehart for New York Insurance Alliance, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be modified, without costs, by granting the petition to the extent of reducing the penalty to $500 and, as so modified, the judgment confirming the Insurance Superintendent’s determination should be affirmed.

The Superintendent of Insurance determined that American Transit Insurance Company (American) was guilty of willful violation of Insurance Law § 334 and regulation 131 (11 NYCRR part 162). An aggregate penalty of $8,850 was assessed. We agree with the Appellate Division that there is substantial evidence to support the Superintendent’s determination; however, failure to file the required forms in 1987 constitutes one "offense” (Insurance Law § 109 [c]), for which the maximum allowable penalty is $500.

Insurance Law § 334, enacted in 1986, as implemented by regulation 131 (11 NYCRR part 162) in July 1987, requires the Superintendent to provide the Governor and Legislature with an annual commercial property and casualty insurance report. All commercial property and casualty insurers are required annually to submit data for inclusion in the Superintendent’s report (Insurance Law § 334 [e]; 11 NYCRR 162.1 [c]). The regulations prescribe the filing of Form 131-A by August 7, 1987 with data relating to calendar years 1981 to 1986, and for calendar year 1987 and subsequent years by April 15 of the successive years (11 NYCRR 162.3, 162.6). American did not file for calendar years 1981 to 1986 until March 28, 1988 (11 NYCRR 162.4 [b]).

By letters dated October 14, 1987 and December 1, 1987, the Superintendent notified American that a daily penalty was being imposed for failure to file in 1987. On March 18, 1988, the Superintendent notified American that the penalty had reached $40,650. Subsequently, the Insurance Department’s Hearing Officer concluded that American’s violation was willful because the insurer had a staff of 16 attorneys and "knew, or should have known” about the requirements of regulation 131 published in the State Register on July 29, 1987 and September 30, 1987. Each day’s lateness in filing was determined to be an additional offense subject to the maximum $500 penalty per violation (Insurance Law § 109 [c] [1]). Nevertheless, the maximum penalty of $500 per day from the filing due date of August 7, 1987 to the actual filing date of March 28, 1988 was deemed "draconian”; instead, a compromise figure and formula were used by the Hearing Officer to arrive at a total penalty of $8,850. The Superintendent agreed and confirmed the violation and the penalty.

The term "willful” is not defined in the Insurance Law or regulations, but we find some guidance as to its unremarkable meaning in a civil regulatory context as "no more than intentional and deliberate.” (Matter of Old Republic Life Ins. Co. v Thacher, 12 NY2d 48, 56; see also, Matter of Levin v Gallman, 42 NY2d 32, 34.)

Regulation 131 was filed and American thus received official notice of it (see, State Administrative Procedure Act § 203 [1]; Matter of Jones v Smith, 64 NY2d 1003, 1006). The Superintendent was not obliged to accept American’s litany of reasons for failure to timely file: namely, lack of actual notice that regulation 131 had been promulgated and lack of receipt of the Superintendent’s reminder letters; the Superintendent’s failure to inform American of the filing requirement while agency personnel were conducting a routine audit on the insurer’s premises; and that equivalent data was already available from other forms filed by American. Rather, the combined effect of ignoring the notice provided by official filing and publication of the regulation, and of delaying the filing for over seven months after publication and after a series of notification and reminder letters, belies the claim of ignorance of the law and supplies the substantial evidence to support the Superintendent’s determination.

The penalty portion of the determination, however, cannot be sustained because there is no authority to impose a penalty for "each day’s lateness in filing” as "an additional violation”. Pyramiding of penalties, i.e., treating continuing violations as separate daily transgressions, has been upheld only where cumulative penalties are expressly authorized by statute (People v Abramson, 208 NY 138, 143; Suydam v Smith, 52 NY 383). When the Legislature intends to permit cumulative penalties for noncompliance with Insurance Law filing requirements, it has expressly done so (see, Insurance Law § 307 [a] [4] [authorizing penalty of up to $250 "per day of delay”, not to exceed $25,000, for insurer’s delay in filing annual business statements]). No such specificity or formulation is found in the provision applicable in this case (Insurance Law § 109 [c] [1]). Reliance on Matter of Meyers Bros. Parking Sys. v Sherman (87 AD2d 562, affd for reasons stated at App Div 57 NY2d 653), to support cumulative penalties is plainly misplaced, as the case involved separate forbidden acts. Here, the prescribed act — a first time annual filing — is a once-a-year event, for which willful failure to comply can likewise occur only once a year. The simple transgression of failure to timely file by August 7, 1987 can result in a maximum penalty of only $500.

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

Judgment modified, etc.


text:
    Incorporated Village of Freeport, Respondent, v Jefferson Indoor Marina, Inc., et al., Appellants.
    Submitted September 4,1990;
    decided November 29, 1990
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    The People of the State of New York ex rel. Frank Felong, Appellant, v Andrew P. Meloni, as Sheriif of Monroe County, et al., Respondents.
    Submitted September 4,1990;
    decided November 29, 1990
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see, People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    The People of the State of New York, Respondent, v Barry Gibbs, Appellant.
    Submitted September 17,1990;
    decided November 29, 1990
   Motion to vacate August 27, 1990 order of dismissal denied. [See, 76 NY2d 851.]


text:
    In the Matter of John Santosky et al., Appellants, v Thomas Roach, as Commissioner of the Ulster County Department of Social Services, Respondent.
    Submitted September 24,1990;
    decided November 29, 1990
   Motion for leave to appeal dismissed as moot. Motion for poor person relief dismissed as academic.


text:
    In the Matter of 60 Market Street Associates, Respondent, v Thomas F. Hartnett, as Commissioner of Labor, Appellant. (Proceeding No. 1.) In the Matter of D.M.C. Contractors, Inc., Respondent, v Thomas F. Hartnett, as Commissioner of Labor, et al., Appellants. (Proceeding No. 2.)
    Argued November 19,1990;
    decided December 18, 1990

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Jennifer S. Brand, M.

      Patricia Smith, O. Peter Sherwood, Peter H. Schiff and Jane Lauer Barker of counsel), for appellant.

      Jon Holden Adams for 60 Market Street Associates, respondent.

      Rochelle J. Auslander for D.M.C. Contractors, Inc., respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the opinion by Justice Paul J. Yesawich, Jr., at the Appellate Division (153 AD2d 205).

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


text:
    In the Matter of Health Insurance Association of America et al., Respondents, v James P. Corcoran, as Superintendent of Insurance, Appellant.
    Argued November 14,1990;
    decided December 18, 1990

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Frederic L. Lieberman, O. Peter Sherwood, Lawrence S. Kahn and Rosalie J. Hronsky of counsel), for appellant.

      Edward N. Costikyan, Carroll J. Mealey and Melissa T. Rosse for respondents.

      Evan Wolfson, Kim J. Landsman, Debra Freeman and Harlan M. Mandel for Lambda Legal Defense and Education Fund, Inc. and others, amici curiae.

      Gregory Serio for Senator Guy J. Vellella, Chairmán of the New York State Senate Committee on Insurance, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (154 AD2d 61).

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


text:
    Dorothy Coyer et al., Appellants, v Hyster Company et al., Respondents. Syracuse Supply Company, Third-Party Plaintiff-Respondent, v Alcan Aluminum Corporation, Third-Party Defendant-Respondent. Hyster Company, Second Third-Party Plaintiff-Respondent, v Alcan Aluminum Corporation et al., Second Third-Party Defendants-Respondents.
    Argued November 19,1990;
    decided December 18, 1990

      APPEARANCES OF COUNSEL

      Thomas F. Cannavino and James N. Cahill for appellants.

      David M. Gouldin for Hyster Company, respondent.

      Robert A. Small for Syracuse Supply Company, respondent.

      Charlene E. McGrow for Alcan Aluminum Corporation and another, third-party defendants-respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (158 AD2d 920).

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


text:
    Patricia A. Chase, Respondent, v William Penn Life Insurance Company of New York, Appellant.
    Argued November 15,1990;
    decided December 18, 1990

      APPEARANCES OF COUNSEL

      Robert D. Meade for appellant.

      Thomas C. Kingsley for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. There being support in the record, this Court may not disturb the affirmed finding of fact that decedent made no material misrepresentation in his application for insurance. It is therefore unnecessary to reach the issue of the trial court’s evidentiary rulings pertaining to the separate question of defendant’s reliance on the alleged misrepresentations.

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


text:
    The People of the State of New York, Appellant, v Richard Akptotanor, Respondent.
    Argued November 16,1990;
    decided December 18, 1990

      APPEARANCES OF COUNSEL

      Charles J. Hynes, District Attorney (Sherry B. Bokser and Jay M. Cohen of counsel), for appellant.

      Susan J. Feathers and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Order affirmed. On the state of the record before us, we cannot say as a matter of law that the Appellate Division erred.

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


text:
    In the Matter of Barbara Kaliski, Claimant, v Fairchild Republic Company et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued October 10, 1990;
    decided December 20, 1990

      APPEARANCES OF COUNSEL

      Joel M. Gluck and Charles J. Jones for appellant.

      Robert Abrams, Attorney-General (Theresa E. Wolinski, O. Peter Sherwood, Peter H. Schiff and Jane Lauer Barker of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (151 AD2d 867).

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


text:
    Gail Christopher, Respondent, v Great Atlantic & Pacific Tea Company, Inc., Appellant.
    Decided December 20, 1990

      APPEARANCES OF COUNSEL

      William E. Fay, III, for appellant.

      Warren J. Willinger for respondent.
   OPINION OF THE COURT

Memorandum.

On reconsideration, order granting leave to appeal recalled and motion for leave to appeal denied.

This Court granted leave to review the issue whether the Appellate Division incorrectly employed the "shocks the conscience” standard instead of the controlling material deviation from reasonable compensation standard in assessing whether the jury’s verdict was excessive (CPLR 5501 [c]).

Thereafter, the Appellate Division denied defendant’s motion for reargument, stating, however, in its order of denial: "Were we to reconsider defendant’s contention on the merits that the verdict is excessive, we would not conclude that the jury award to plaintiff in the sum of $275,000 'deviates materially from what would be reasonable compensation’ under CPLR 5501 (c)”.

Inasmuch as the Appellate Division order denying reargument established that the Appellate Division would not alter its prior order were it to apply the correct standard of review, and as further appellate proceedings would only needlessly delay monetary relief for this 90-year-old plaintiff who was injured in 1984, this case is no longer appropriate for this Court’s review.

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

On reconsideration, order granting leave to appeal recalled and motion for leave to appeal denied, in a memorandum.


text:
    David L. Allyn, Respondent, v Burton Allyn, Appellant, and Morey J. Herzog, Respondent.
    Submitted October 9, 1990;
    decided December 20, 1990
   Motion by defendant Allyn for leave to appeal denied with $100 costs and necessary reproduction disbursements. On the Court’s own motion, appeal taken as of right by plaintiff dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    Gail Christopher, Respondent, v Great Atlantic & Pacific Tea Company, Inc., Appellant.
    Submitted November 26, 1990;
    decided December 20, 1990
   Motion to dismiss appeal dismissed as academic. [See, 76 NY2d 1003.]


text:
    James P. Corcoran, as Superintendent of Insurance of the State of New York and as Liquidator of Nassau Insurance Company, Respondent, v Ardra Insurance Company, Ltd., et al., Appellants.
    Submitted August 6, 1990;
    decided December 20, 1990
   Motion to dismiss appeal taken as of right granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Oral application for leave to appeal granted.


text:
    In the Matter of Sebastian M., a Child Alleged to be Neglected. Alexandra B., Appellant; Commissioner of Social Services of the City of New York, Respondent.
    Submitted October 15, 1990;
    decided December 20, 1990
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that the issues presented have become moot.


text:
    The People of the State of New York, Appellant, v Jules Karp, Respondent.
    Argued November 16, 1990;
    decided December 27, 1990

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Beth J. Thomas and Mark Dwyer of counsel), for appellant.

      Lennox S. Hinds for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with so much of the dissenting opinion of Justice Joseph P. Sullivan (158 AD2d 378, 385) as concluded that the questioning of the defendant before the Grand Jury was neither "overly vigorous” nor prevented the defendant from "fully and fairly testifying” (see, CPL 190.50 [5]).

Inasmuch as the Supreme Court dismissal of the indictment was solely on the ground of the prosecutor’s improper questioning of the defendant, the Appellate Division lacked the power to consider issues relating to the District Attorney’s failure to instruct the Grand Jury on the defense of justification and prejudicially exercising prosecutorial discretion in charging the defendant. As stated by this Court in People v Goodfriend (64 NY2d 695, 698), "[t]he CPL, however, limits the Appellate Division’s review to 'any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant. ’ (CPL 470.15, subd 1 [emphasis added].)” Thus, on the People’s appeal, the Appellate Division was without power to consider defendant’s alternative arguments for affirmance.

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

Order reversed, etc.


author: Kaye, J.

text:
    Michael Young, Individually and as Parent and Natural Guardian of Jeffrey M. Young, an Infant, Plaintiff, v Heather M. Wyman et al., Appellants, and Nicholas Bellini, Respondent. (And Another Related Action.)
    Argued November 16,1990;
    decided December 27, 1990

      APPEARANCES OF COUNSEL

      Betsy R. Ruslander for appellants.

      Michael J. Longstreet and William C. Foster for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. We agree with so much of the memorandum at the Appellate Division (159 AD2d 792) as held that the mere presence of an unrestrained dog on the street does not give rise to a presumption of negligence on the part of its owner.

Concur: Chief Judge Wachtler and Judges Alexander, Titone, Hancock, Jr., and Bellacosa. Judge Kaye dissents and votes to reverse in an opinion in which Judge Simons concurs.

Kaye, J.

(dissenting). In this case, a car braked to avoid hitting a dog that had run into the street, and the car hit a child on a bicycle, injuring the child. The issue is whether the dog’s presence in the street gave rise to a presumption of negligence on the part of the dog’s owner. To put the question even more precisely, does the presumption of negligence that already exists when certain animals are present in a road, include dogs? I believe it does.

That the dog caused the accident is not disputed; what is uncertain is how he came to be free. The dog just prior to the accident was on an enclosed porch with a latched aluminum door, but it is unknown whether he released himself or was released. Once the dog was free, his owner attempted to recapture him, but he ran into the street, causing the accident.

The majority at the Appellate Division noted the common-law rule in New York that certain domestic animals, by their nature, require constant attention and are not left to roam unrestrained, so that when they are found unattended, owner neglect may be inferred. However, that court concluded that the common-law presumption does not apply to dogs, adopting language from a treatise which states that a "dog, unless vicious, has a right in the highway, and presumably, absent evidence of negligence, the dog’s owner cannot be charged with liability for injury caused [merely] by its presence therein” (3 NY Jur 2d, Animals, § 48, at 625-626).

The proposition that dogs have a right in the highway in the community of Clifton Park (where this accident occurred) must be weighed against the fact that Clifton Park has adopted an ordinance "to restrain the running at large of dogs in the Town of Clifton Park, and generally regulating dog owners’ responsibilities.” That ordinance prohibits dog owners from permitting their dogs to be "at large,” which is defined as being "on property open to the public” and is thus clearly applicable to public roadways. The "purpose” section of the ordinance states that the town "finds that the running at large and other uncontrolled behavior of dogs has caused physical harm to persons, damage to property and created nuisances within the Town” and that the purpose of the ordinance "is to protect the health, safety and well-being of persons and property.” Thus, the ordinance is clearly aimed at the very type of accident that occurred here. That current statement of public policy on the question is surely entitled to some recognition by the courts (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522; Long v Forest-Fehlhaber, 55 NY2d 154, 160), yet none is given.

Clifton Park is not the only community in this State that has an ordinance restricting dogs from running at large. Such ordinances are sufficiently common that a State law of general applicability authorizes the seizure of dogs found to be in violation of such laws (Agriculture and Markets Law § 118 [2]). Such laws suggest that, whatever may have been the expectation in an earlier, more agricultural age, it is no longer expected that dogs will roam the highways of this State at will.

Respondent urges us to adopt the principle that "[t]he amount of care that the keeper of a domestic animal is required to exercise in its custody is commensurate with the character of the animal” (Restatement [Second] of Torts § 518, comment f, at 31 [1977 ed]), as well as the Restatement’s assessment of canine character: "Although it is not impossible to confine dogs to the premises of their keepers or to keep them under leash when taken into a public place, they have been traditionally regarded as unlikely to do substantial harm if allowed to run at large, so that their keepers are not required to keep them under constant control” (Restatement [Second] of Torts § 518, comment j, at 32 [1977 ed]). While I fully agree that it is appropriate to look at the character of a class of animals in determining what amount of care must be devoted to their custody, the current New York statutes indicate that we have parted company with the traditional regard reflected in the Restatement.

Respondent argues that if a presumption of negligence is extended to owners of unrestrained dogs, a similar presumption will have to be extended to owners of free-ranging "cats, bees, pigeons, and similar birds, hamsters, rabbits and fish.” An answer to that absurd proposition is that there is no comparable State or local law for restraining these other animals, and thus no reason to reject the supposition that they are expected to roam free.

Finally, respondent contends that even if a presumption of negligence is found to exist, he has overcome it by showing that the dog was well behaved, had never before escaped from the porch, and had never been allowed to roam freely. That may well be so, but those factual issues are for a jury’s determination, not disposition by summary judgment (Ugarriza v Schmieder, 46 NY2d 471, 474).

Accordingly, I would reinstate the negligence cause of action.

Order affirmed, etc.