author: Meyer, J.

text:
    Sidney H. Ginsberg et al., Appellants, v North River Insurance Company, Respondent, et al., Defendants.
    Argued March 29, 1982;
    decided May 11, 1982

      APPEARANCES OF COUNSEL

      James J. Taylor and Barbara Hack for appellants.

      Solomon M. Cheser and John P. Friedman for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (67 AD2d 694).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli and Wachtler. Judge Meyer dissents and votes to reverse in the following opinion in which Judge Jones concurs. Taking no part: Judge Fuchsberg.

Meyer, J.

(dissenting). I am unable to accept a rationale which, purportedly in the interest of the insured in other situations, deprives these plaintiffs insureds of one half the coverage for which they paid their premium to North River, because New York Property, which had issued a binder to them, gave a late but wholly unnecessary notice of cancellation to insureds and the insureds never gave notice of cancellation to New York Property. The binder, which must be construed in accordance with “common speech” and as would an “average man” (Lewis v Ocean Acc. & Guar. Corp., 224 NY 18, 21), expired by its own terms for nonpayment of premium prior to plaintiffs’ fire losses. North River should not be permitted to avoid payment of the full loss which its policy admittedly covered on the pretense that the New York Property binder was still in effect at the time of loss. I, therefore, dissent.

I do not blink the fact that New York Property sent a notice of cancellation after the first fire. Whether by mistake or out of an excess of caution, the notice was wholly unnecessary and, therefore, simply surplusage. The binder was explicit that “The insurance coverage described on the front side of this form is binding by a licensed insurer commencing at noon standard time on the effective date shown at the upper right front side of this form, for one year unless sooner cancelled, expired or replaced by a policy. This binder will expire if payment of total premium is not made within 30 days after Notice of Approval and Premium Due is issued in which event the excess of the premium paid, if any, for the period the insurance was in effect will be refunded” (emphasis supplied). The standard policy mandated by section 168 of the Insurance Law speaks to cancellation, not expiration, in the following language: “This policy shall be cancelled at any time at the request of the insured, in which case this Company shall, upon demand and surrender of this policy, refund the excess of paid premium above the customary short rates for the expired time. This policy may be cancelled at any time by this Company by giving to the insured a. five days’ written notice of cancellation with or without tender of the excess of paid premium above the pro rata premium for the expired time.”

There is no question that plaintiffs never paid the required premium to New York Property. Plaintiffs did not do so because North River issued its policy to them for a lesser premium on the very day the New York Property binder expired under the language quoted above. There is also no question that the common speech of average men differentiates between cancellation and expiration. “Cancellation” we are told by Webster’s Third New International Dictionary (p 325) means “the act of * * * nullifying or invalidating * * * the termination by the insured or the insurer or both of insurance in accordance with the specified terms of a policy”. “Expiration” means (id., p 801) “the fact of coming to an end”.

Indeed, until 1970 section 168 itself recognized the difference, for it contained until repealed in that year, as subdivision 3, the following language: “Binders or other contracts for temporary insurance may be made, orally or in writing, for a period which shall not exceed sixty days, and shall be deemed to include all the terms of such standard fire insurance policy and all such applicable endorsements, approved by the superintendent, as may be designated in such contract of temporary insurance; except that the cancellation clause of such standard fire insurance policy, and the clause thereof specifying the hour of the day at which the insurance shall commence, may be superseded by the express terms of such contract of temporary insurance” (emphasis supplied). The repeal of that provision came about at the request of the Greater New York Insurance Brokers’ Association, Inc., whose memorandum accompanying the bill (NY Legis Ann, 1970, pp 324-325) shows that repeal was requested to eliminate the 60-day limitation on fire insurance binders, a limitation which did not apply to other types of insurance. Nothing in the history of the repealer suggests that the express terms of the binder were intended to be subject to the cancellation clause of the standard policy. At most the absence of any limiting provision concerning binders in section 168 left New York Property free to differentiate in its binder between cancellation and expiration.

Certainly there was no reason for plaintiffs to believe that they had to ask for cancellation of the New York Property policy or that they had any claim against New York Property to which they had never paid a premium and which by its notice of cancellation had made evident its concurrence in the conception that plaintiffs had no claim against it. To penalize plaintiffs by permitting North River now to renege on the payment of one half the loss for no reason other than that plaintiffs made no claim against New York Property on the binder on which plaintiffs never could have collected is simply beyond my comprehension.

I would reverse and reinstate the Supreme Court order.

Judgment affirmed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Raymond Canner, Appellant, v Carlton Delameter et al., Constituting the Zoning Board of Appeals of the Town of Oneonta, Respondents.
    Decided May 11, 1982

      APPEARANCES OF COUNSEL

      Joseph F. Kehoe for appellant.

      William H. Schebaum for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. If the Town of Oneonta did not have jurisdiction over Lot 59, it could not grant a variance. If, on the other hand, the town did have jurisdiction, it cannot be said, as a matter of law, that respondents’ determination was arbitrary and capricious.

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


text:
    County of Onondaga, Respondent, v Penetryn Systems, Inc., et al., Appellants.
    Decided May 11, 1982

      APPEARANCES OF COUNSEL

      Mark Weldon for Penetryn Systems, Inc., appellant.

      John F. Gates for Hartford Accident and Indemnification Co., appellant.

      Robert Rossi, County Attorney (Susan Summers of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (84 AD2d 934).

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


text:
    County of Ulster, Appellant, v State of New York Department of Health et al., Respondents.
    Decided May 11, 1982

      APPEARANCES OF COUNSEL

      Francis T. Murray, County Attorney, for appellant.

      Robert Abrams, Attorney-General {Alan W. Rubenstein of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, and the judgment of Special Term reinstated. The county here had power to rescind its acceptance of the commissioner’s designation as a primary registration district prior to the effective date of such designation.

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


text:
    In the Matter of Binghamton Firefighters, Local 729, International Association of Firefighters, et al., Appellants, v City of Binghamton et al., Respondents.
    Decided May 11, 1982

      APPEARANCES OF COUNSEL

      Kevin F. McDonough for appellants.

      Kenneth Auerbach, Corporation Counsel, for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (85 AD2d 836; see, also, Matter of Chalachan v City of Binghamton, 55 NY2d 989).

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


author: Wachtler, J.

text:
    Walter J. Wharram, Jr., et al., Doing Business as Commercial Collision, Appellants, v City of Utica et al., Respondents.
    Argued March 22, 1982;
    decided May 11, 1982

      APPEARANCES OF COUNSEL

      Daniel S. Cohen for appellants.

      Lawrence P. George, Corporation Counsel (Angelo N. Felice of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter should be remitted with direction to enter judgment declaring section 17-26.1 of the Ordinances of the City of Utica invalid because in violation of section 80 of the General Municipal Law.

The city argues that its ordinance does not violate the section but has not contested its applicability to the facts of this case. The section voids “any restriction” by municipal ordinance or regulation of the carrying on of business by nonresidents, which restriction “shall not be necessary for the proper regulation of such * * * business.” Section 17-26.1 of the Ordinances of the City of Utica establishes a rotational towing service list which the police department uses to call tow trucks to the scene of accidents as needed. Plaintiffs, individuals doing business under an assumed name, whose place of business is four tenths of a mile outside the city limits, have been excluded from the police department list, as a result of which they are never called by the police to the scene of an accident and, although they are not prevented from accepting tow jobs within the city, are not permitted to come within 100 feet of an accident scene.

The issue under section 80 is not whether there is a reasonable ground for such a restriction of nonresident tow truck operators but whether such a restriction is necessary. It was the burden of the municipality, which conceded that nonresidents were excluded from the rotational list, to go forward with evidence establishing necessity. However, the record contains no evidence to sustain Trial Term’s conclusion of law that the restriction against nonresidents was necessary for the proper regulation of police business. It was, therefore, error to grant judgment to the city declaring that the section of the ordinance in question was not in violation of section 80 of the General Municipal Law and not to grant judgment to plaintiffs making the contrary declaration.

Wachtler, J.

(dissenting). I would dissent and affirm the order of the Appellate Division.

The rotational towing service list established by section 17-26.1 does not in any manner prohibit appellants from carrying on their towing business within the city. Moreover, nothing in the ordinance prohibits appellants from being present at an accident scene and soliciting business as long as they remain 100 feet away until the police have had an opportunity to investigate the incident. The ordinance simply establishes a geographical boundary as an eligibility prerequisite to appear on an emergency service list. That boundary is certainly reasonably related to time and distance factors. Additionally, the ordinance was designed to prevent traffic congestion at accident scenes by avoiding the presence of unnecessarily numerous towing operators.

Thus the ordinance serves various legitimate public safety functions without prohibiting or restricting nonresidents from conducting business within the municipality. Section 80 of the General Municipal Law was never intended to prohibit an ordinance which fulfills this type of limited and obviously useful purpose.

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

Order reversed, with costs, and case remitted to Supreme Court, Oneida County, for entry of judgment in accordance with the memorandum herein.


text:
    In the Matter of B. Altman & Co., Respondent, v City of White Plains et al., Appellants.
    Submitted May 3, 1982;
    decided May 11, 1982
   Motion to dismiss appeal taken as of right, etc., denied. (CPLR 5601, subd [a], par [iii]; Dalrymple v Shults Chevrolet, 39 NY2d 795.)


text:
    Robert B. Beachboard, Appellant, v Columbia University et al., Respondents.
    Decided May 11, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the appeal does not lie (NY Const, art VI, § 3, subd b, par [7]; CPLR 5601).


text:
    William Chalfin, Appellant, v Constance Laniado, Individually and as Executrix of Clara Chalfin, Deceased, Respondent.
    Submitted April 26, 1982;
    decided May 11, 1982
   Cross motion, insofar as it seeks an amendment of the notice of appeal, granted. Motion to dismiss appeal taken as of right granted and the appeal dismissed, with costs and $20 costs of motion, and cross motion insofar as it seeks leave to appeal dismissed, each upon the ground that the Appellate Division order granting a new trial, which is here sought to be reviewed, does not “necessarily affect” the final judgment as required by CPLR 5601 (subd [d]) and 5602 (subd [b], par 2, cl [ii]). (Long v Forest-Fehlhaber, 55 NY2d 154, 158; Miocic v Winters, 52 NY2d 896; Cohen and Karger, Powers of the New York Court of Appeals, § 79, p 344.)


text:
    Malikah Ferrer et al., Respondents, v Ben Harris et al., Appellants.
    Submitted May 3, 1982;
    decided May 11, 1982
   Motion for reargument, treated as one for amendment of remittitur, granted. Return of remittitur requested and, when returned, it will be amended to read as follows: Order modified, with costs to defendants Harris against plaintiff and costs to plaintiff against defendant Javidan, and case remitted to Supreme Court, New York County, for a new trial in accordance with the opinion herein, as amended, and, as so modified, affirmed. The opinion is amended by adding the following to the last paragraph: “5. Once the defendant Javidan has fully satisfied the judgment, the new trial may proceed on Javidan’s initiative under his article 14 claim for contribution against the Harris defendants alone.” [See 55 NY2d 285.]


text:
    The People of the State of New York, Appellant, v Walter Jenkins, Respondent.
    Submitted April 12, 1982;
    decided May 11, 1982
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the Appellate Division determination of reversal was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]; see People v Bay, 54 NY2d 808).


text:
    William Moffatt, Respondent, v Eleanor Moffatt, Appellant.
    Decided May 11, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    Edward P. Roche, Appellant, v Deborah E. Roche, Respondent.
    Submitted April 5, 1982;
    decided May 11, 1982
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie (CPLR 5601).


text:
    Zodiac Enterprises, Inc., Appellant, v American Broadcasting Companies, Inc., Respondent.
    Argued April 2, 1982;
    decided May 13, 1982

      APPEARANCES OF COUNSEL

      Alan M. Gelb, Stuart K. Lesansky, Shepard A. Federgreen and Robert B. Smith for appellant.

      Philip R. Forlenza and Rafael Pastor for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in so much of the opinion by Justice Samuel J. Silverman at the Appellate Division (81 AD2d 337) as deals with the January 31, 1980 order of Special Term.

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


text:
    In the Matter of Harbor Tower, Inc., Appellant, v Robert Abrams, as Attorney-General of the State of New York, Respondent. Tenants at 2 Pierrepont Street, Brooklyn, N. Y., Intervenors-Appellants.
    Decided May 13, 1982

      APPEARANCES OF COUNSEL

      Steven R. Lapidus for appellant.

      Edward H. Honig and David Smerling for intervenorsappellants.

      Robert Abrams, Attorney-General (Gerald J. Hurwitz of counsel), respondent pro se.

   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 550.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (85 AD2d 558).

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


text:
    The People of the State of New York, Respondent, v Larry Willis, Appellant.
    Decided May 13, 1982

      APPEARANCES OF COUNSEL

      Anne L. Freedman and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (Salvatore S. Russo of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed and a new trial ordered. The defendant was entitled, on the basis of the evidence before the jury, to the requested charge. (Penal Law, § 160.15, subd 4; People v Smith, 55 NY2d 888).

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


text:
    The People of the State of New York, Respondent, v Michael Satloff, Appellant.
    Argued April 2, 1982;
    decided May 13, 1982

      APPEARANCES OF COUNSEL

      Howard Rudnick for appellant.

      Denis Dillon, District Attorney (Lawrence J. Schwarz and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that the jury’s verdicts on two counts of the indictment are inconsistent is not preserved for our review. Following discharge of the jury, defense counsel complained, for the first time, of the asserted inconsistency. At this point, it was no longer possible to remedy the defect, if any, by resubmission to the jury for reconsideration of its verdicts {People v Stahl, 53 NY2d 1048, 1050). Such a protest must be registered prior to the discharge of the jury properly to preserve the issue for review in this court.

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

Order affirmed in a memorandum.


text:
    Neftali Gomez, Appellant, v Blanca R. F. Gomez, Respondent.
    Argued March 5, 1982;
    decided May 13, 1982

      APPEARANCES OF COUNSEL

      Barbara J. Simon for appellant.

      Andrew Yankwitt for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (86 AD2d 594), to which we add, in view of petitioner’s argument that jurisdiction has now been acquired by reason of the infant’s presence in New York during the pendency of this proceeding, that our courts having been without jurisdiction when the proceeding was begun, the sojourn of the child in New York as a result of orders made without jurisdiction cannot result in the acquisition of jurisdiction.

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


text:
    In the Matter of the Estate of Sharon M. Wyche, Deceased. Country-Wide Insurance Co. et al., Respondents; Paul Garrison, Appellant.
    Decided May 13, 1982

      APPEARANCES OF COUNSEL

      Joseph Vincent Zumbo for appellant.

      David R. Sheridan for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the opinion by Justice Paul J. Yesawich, Jr., at the Appellate Division (84 AD2d 223).

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


text:
    In the Matter of Pauline E. Williman, Respondent. Philip Ross, as Industrial Commissioner, Appellant.
    Argued April 2, 1982;
    decided May 13, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Frederick M. Paola, Shirley Adelson Siegel, Paul S. Shemin and Iris A. Steel of counsel), for appellant.

      Jeremiah F. Manning for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (81 AD2d 997).

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


text:
    Precision Dynamics Corp., Appellant, v Tax Commission of City of New York, Respondent.
    Decided May 13, 1982

      APPEARANCES OF COUNSEL

      Donald N. David for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Robert S. Katz of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. The determination of market value essentially is a question of fact (Grant Co. v Srogi, 52 NY2d 496, 510). The Appellate Division considered all the elements which “go into the makeup of value” and, on this record, it cannot be said that its determination is erroneous as a matter of law. Indeed, any legal error that may have been made by the trial court in considering co-operative conversion potential as the sole indicator of value was corrected by the Appellate Division which accorded such potential little, if any, weight in its determination of valuation. We note that the newly enacted section 581 of the Real Property Tax Law, foreclosing consideration of conversion potential, is inapplicable to the present proceeding.

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


text:
    Irma Arizmendi, Respondent, et al., Plaintiff, v City of New York et al., Appellants.

      Argued April 2, 1982;
    decided May 13, 1982
    APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Larry A. Sonnenshein and Francis F. Caputo of counsel), for appellants.

      Robert G. Harley for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellants contend that they were effectively deprived of their constitutional guarantee of a jury of six persons when after a poll a juror revealed that he neither deliberated nor voted on the issue of damages because he was the sole dissenter on the issue of liability. Appellants first raised this claim, however, in connection with a posttrial motion to set aside the verdict. In that appellants failed to raise this objection before the jury was discharged and thereby afforded the trial court no opportunity to correct the claimed error by returning the jury for additional deliberation on the issue of damages, appellants have waived their objection to the juror’s nonparticipation in deliberations or voting on that issue (Barry v Manglass, 55 NY2d 803, 806).

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

Order affirmed, with costs, in a memorandum.


text:
    I.J.S. Fabrics, Inc., Appellant, v Dan River, Inc., Respondent.
    Submitted April 1, 1982;
    decided May 13, 1982

      APPEARANCES OF COUNSEL

      Martin W. Fogel for appellant.

      Donald L. Kreindler and Jeffrey S. Kaplan for respondent.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (81 AD2d 525). We but add that, under the circumstances of this case, once the parties had agreed to the deletion of the warranty clause and the appellant on that basis had accepted respondent’s sales note, whether the respondent still retained and thereafter exercised its right to accept the sales note at its home office would be a question for the arbitrator(s) (cf. Matter of Prime [Jonas], 38 NY2d 570; Matter of Weinrott [Carp], 32 NY2d 190).

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

Order affirmed, with costs, in a memorandum.


text:
    County of Westchester et al., Appellants, v Donald Mahoney, Respondent.
    Decided May 13, 1982

      APPEARANCES OF COUNSEL

      Samuel S. Yasgur, County Attorney (Jane Bilus Gould of counsel), for appellant.

      Daniel P. Levitt for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, the petition to stay arbitration granted and the cross petition to compel arbitration dismissed. Our reading of the collective bargaining agreement as a whole establishes the parties’ plain and unambiguous intent to limit the right to demand step 3 grievance arbitration to the college and the union. Accordingly, respondent faculty member’s arbitration demand was without legal effect (cf. Matter of Horseheads Cent. School Dist. [Horsehead Teachers’ Assn.], 55 NY2d 949).

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


text:
    In the Matter of Herbert Wein, Appellant, v City of New York et al., Respondents.
    Decided May 13, 1982

      APPEARANCES OF COUNSEL

      Norman Eric Teitler and Barry Gene Rhodes for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Elissa Hutner of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), judgment reversed, with costs, and the matter remitted to Supreme Court, New York County, with directions to remand to the Fire Commissioner for imposition of an appropriate sanction under section 487a-12.0 of the Administrative Code of the City of New York. In imposing a penalty authorized by section 75 of the Civil Service Law, but not authorized by section 487a-12.0 of the Administrative Code, the commissioner acted without regard to subdivision 4 of section 76 of the Civil Service Law and, therefore, in excess of his authority.

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


text:
    Harold Cooper, Appellant, v Daniel Schube et al., Respondents.
    Submitted May 3, 1982;
    decided May 13, 1982
   Motion for a stay granted to the extent of staying enforcement of the order of the Appellate Division pending disposition of the appeal herein. Defendants’ application for a preference, etc., denied.


text:
    Anthony Schreiber et al., Appellants, v State of New York, Respondent.
    (Claim No. 60747.)
    Decided May 18, 1982

      APPEARANCES OF COUNSEL

      David M. Levy for appellants.

      Robert Abrams, Attorney-General (Dennis Hurley of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, and the judgment of the Court of Claims reinstated. The trial court found that the northerly and southerly parcels had a highest and best use, both before and after the taking, of agriculture with a potential for future industrial development of the northern parcel. The court valued the property in accordance with this highest and best use and, as such, could properly consider the consequential injury to the northerly parcel as a result of loss of access between the parcels. Here, the court by necessary implication found that the remaining access was unsuitable. There is support in the record for this finding and the award should not be disturbed (see Priestly v State of New York, 23 NY2d 152; Beh v State of New York, 56 NY2d 576).

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


text:
    Joseph P. Scaduto, Appellant, v State of New York, Respondent.
    (Claim No. 61329.)
    Decided May 18, 1982

      APPEARANCES OF COUNSEL

      Robert C. Minion for appellant.

      Robert Abrams, Attorney-General (Henderson G. Riggs of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (86 AD2d 682).

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


text:
    In the Matter of the Claim of Nancy Poupard, Respondent, v Mohonasen Central School District et al., Appellants. Workers’ Compensation Board, Respondent.
    Decided May 18, 1982

      APPEARANCES OF COUNSEL

      Raymond C. Green and Thomas J. Spargo for State Insurance Fund and another, appellants.

      Bernard F. Ashe and Ira Paul Rubtchinsky for Nancy Poupard, respondent.

      Robert Abrams, Attorney-General (Shirley Adelson Siegel of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs (Matter of Jefferson v Bronx Psychiatric Center, 55 NY2d 69). Where, as here, the employer has not offered to recredit the claimant for wages paid and charged to her accumulated sick leave credits, the net benefit resulting to the employer precludes reimbursement under section 25 (subd 4, par [a]) of the Workers’ Compensation Law.

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


text:
    In the Matter of Youth Building Corporation, Respondent, v Board of Assessors of the County of Nassau, Appellant.
    Decided May 18, 1982

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (Joshua A. Elkin of counsel), for appellant.

      Edward T. Byrne for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, and the judgment of Supreme Court, Nassau County, reinstated. Petitioner was not entitled to an exemption under section 421 (subd 1, par [a]) of the Real Property Tax Law. It was not itself organized or conducted exclusively for charitable purposes and the activities carried on by it were statutorily denied to its charitable affiliate (cf. Matter of Stuyvesant Sq. Thrift Shop v Tax Comm, of City of N. Y., 54 NY2d 735; contrast Matter of St. Joseph’s Health Center Props, v Srogi, 51 NY2d 127).

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


text:
    The People of the State of New York, Respondent, v Nelson Corales, Appellant.
    Decided May 18, 1982

      APPEARANCES OF COUNSEL

      William E. Hellerstein and Barry D. Leiwant for appellant.

      Robert M. Morgenthau, District Attorney (Joseph G. Riemer, III, of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed. The contentions that the People were required to produce other proof at the suppression hearing and that the court’s charge to the jury impermissibly shifted the burden of proof were not preserved for our review. Appellant’s remaining contentions are without merit.

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


author: Fuchsberg,

text:
    In the Matter of the Arbitration between Onteora Central School District at Boiceville, Respondent, and Onteora Non-Teaching Employees Association, Appellant. In the Matter of the Arbitration between Onteora Central School District at Boiceville, Respondent, and Onteora Non-Teaching Employees Association, Appellant.
    Argued March 31, 1982;
    decided May 18, 1982

      APPEARANCES OF COUNSEL

      Judith M. Hecker, Bernard F. Ashe, Kevin H. Harren and Rocco A. Solimando for appellant.

      James M. Donoghue and Susanna E. Bedell for respondent.
   OPINION OF THE COURT

In the first above-entitled proceeding: Order affirmed, with costs, for reasons stated in the opinion by Justice Robert G. Main at the Appellate Division (79 AD2d 415).

In the second above-entitled proceeding: Order affirmed, with costs.

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

Fuchsberg,

J. (dissenting). These appeals bring up for. review two orders of the Appellate Division vacating arbitration awards which determined the merits of separate grievances arising under an ongoing public sector collective bargaining agreement. I would reverse and reinstate each of the awards.

One of the disputes was precipitated after the petitioner, Onteora Central School District, adopted an austerity budget for the 1978-1979 school year following voter defeat of proposed budgets for that year. The pared budget did not provide funds for interscholastic sports. The district thereafter accepted money from a community-sponsored “booster” club for this purpose and, when these funds were insufficient to cover the cost of custodial services for preparation and cleanup of the gymnasium at basketball games, had these performed by student volunteers. The respondent, Onteora Non-Teaching Employees Association then filed a grievance by which it challenged the right of any but school custodial staff members who were within the unit covered by the parties’ collective bargaining agreement to handle this work. In doing so, the association relied on section 1 of article XVII of the agreement, a standard past practice clause which provided that “any past practice, existing policy or employee benefit not modified, eliminated or superseded by any provision of this contract shall remain in force and effect for the life of this contract”. Pursuant to the contract’s grievance machinery, in due course the dispute was referred to arbitration.

The second grievance ran a similar course. Its genesis too is found in the 1978-1979 winter sports program. This time, “booster” club money was received on condition that transportation costs be kept to a minimum; to comply, the district awarded the bus runs for sports e'vents to outside contractors. The association, again looking to section 1 of article XVII, cited the district’s past practice to utilize only bargaining unit members to operate the buses.

In each case, the arbitrator, in sustaining the grievance, issued an award which required the district to pay members of the bargaining unit the compensation they would have earned had they performed the custodial and transportation services in question. The district then sought vacatur in separate proceedings brought pursuant to CPLR 7511. In the custodial case, a Justice of the Supreme Court vacated the award; in the bus case, another Justice of the same court sustained the award. In separate appeals, the Appellate Division, as indicated above, ruled that vacatur was in order. To reach this result, the court resorted to the theory that the arbitral decisions contravened “demonstrable public policy” (79 AD2d, p 417). Choosing to characterize the award of the wages employees of the union would have earned had the district lived up to the agreement as an imposition of “a nonexistent debt or phantom expense” (79 AD2d, p 418), it decided that the arbitrators had usurped an exclusive statutory duty of the State’s Commissioner of Education to resolve disputes concerning which “ordinary contingent expenses” may be incurred by a school district when the voters have failed to approve a budget (Education Law, § 2024). To this it then added the makeweight that the awards ran counter to subdivision 2 of section 1718 of the Education Law, which limits gifts received by school districts to the purposes for which they are given.

All this, however, is beside the point. It simply ignores the fact that the arbitrators’ determinations of the contractual rights and obligations of the parties bore no relation whatsoever to the determination of whether a school district was authorized to expend funds for a particular purpose under a contingency budget. The first was a subject for legal, or, as in this case, arbitral resolution, while the latter was for the district to decide on the basis of statutory obligations under section 2023 of the Education Law, or, if the district’s judgment were challenged, by the commissioner under section 2024. Once the arbitrators determined that the agreement imposed an obligation on the district to assign only its regular custodians and bus drivers for the interscholastic sports program, the district was duty bound to do so. That duty and its concomitant cost then became an ordinary contingent expense of the district, not because of any ruling by the arbitrators, but rather because, under existing rulings of the commissioner, “legal obligations of the district” are ordinary contingent expenses (see Matter of Reinhardt, 16 Ed Dept Rep 448, 449; Matter of Ughetto, 12 Ed Dept Rep 162, 164). It is revealing that an interpretative bulletin of the State Education Department itself mandates that collective bargaining agreements be honored during austerity periods.

Nor was there any repugnancy between the awards and section 1718. The district was free to accept or reject donations, but this did not give it the license to disregard its collectively bargained obligations to the association with impunity. Moreover, the arbitrators did not attempt to single out what funds the district was to apply to the satisfaction of the awards. The payments could come from the general revenues of the district, just as did other contract-based monetary commitments. So, as was true of the district’s contention with regard to section 2024, by raising its section 1718 issue, thus begging the question as to what were the obligations fixed by the agreement, it drew the courts into consideration of matters which were not for them to decide, i.e., the merits of the underlying disputes.

It therefore here needs reiteration that “[ijncantations of ‘public policy’ may not be advanced to overturn every arbitration award that impairs the flexibility of management of a school district” (Matter of Port Jefferson Sta. Teachers Assn, v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898, 899; see, also, Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669, 670). To the contrary, if anything, arbitration is supported by the strong public policy with which our State favors public sector collective bargaining (see Civil Service Law, § 200; see, also, Matter of Incorporated Vil. of Lynbrook v New York State Public Employment Relations Bd., 48 NY2d 398,403-404; Matter of Board ofEduc. v Yonkers Federation of Teachers, 40 NY2d 268, 273; cf. NY Const, art I, § 17; Labor Law, § 700).

In particular, among terms and conditions of employment which are the most legitimate goals'of such bargaining, traditionally and now, are job security and the opportunity to perform available work (see Abood v Detroit Bd. of Educ., 431 US 209; Fibreboard Corp. v Labor Bd., 379 US 203, 210-214; 2 Werne, Administration of the Labor Contract, § 39.02; 33 NY Jur, Labor and Labor Relations, § 203). It is undenied that subcontracting is a mandatory subject of such negotiations (Matter of Saratoga Springs School Dist., 11 PERB 3057). Nor, either in the public or private sectors, can one underestimate the degree to which harmonious and stable labor relations are dependent on the mutuality of trust engendered by the flexibility inherent in past practice clauses.

Finally, these observations are not without sensitivity to the district’s understandable desire to have continued an interscholastic athletic program in the face of the voters’ refusal to provide budgetary support. To help meet this problem, it certainly might have sought from the employees a voluntary adjustment in the collective bargaining agreement or, perhaps, it could have resubmitted the item to the public. But it simply could not impose a unilateral solution at the expense of the employees’ work opportunities, to the preservation of which, as both arbitrators found, the district had pledged itself in the exchange of commitments for which the bilateral agreement stood.

It therefore follows that the orders appealed from should be reversed and the arbitrators’ awards reinstated.

Orders affirmed, etc.

      . The arbitrator framed the question presented to him as follows: “Did the District violate Articles I and XVII of the Agreement by assigning custodial duties associated with the basketball season outside of the bargaining unit? If so, what shall be the remedy?”

      . The exact issue submitted to the arbitrator was: “Did the District violate Article I, VIAI and A 2, and/or XVII1,2,3, and 4 in its assignment of certain bus runs to contract drivers who were not bargaining unit members and, if so, what shall be the remedy?”

      . Before the arbitrators, the district never contended that the custodial and bus driving work at issue would not constitute activities for which necessary and contingent expenses would be payable if contractually required. Instead, it argued that it was not contractually so required. The arbitrators found to the contrary, under the past practice clause. In short, no issue of public policy emanated.


text:
    Chautauqua Investment Company, Appellant, v Town of Chautauqua, Respondent.
    Decided May 18, 1982

      APPEARANCES OF COUNSEL

      Walter M. Donovan for appellant.

      Seymour W. Rollman and Bruce K. Carpenter for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (84 AD2d 959).

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


text:
    In the Matter of Barbara H. Frick, Appellant, v Victor S. Bahou, as Commissioner of the Department of Civil Service, State of New York, et al., Respondents.
    Decided May 18, 1982

      APPEARANCES OF COUNSEL

      Ralph W. Fusco for appellant.

      Robert Abrams, Attorney-General (John Q. Driscoll of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, without costs, and judgment of Special Term reinstated. Respondents’ grading of the examination was in contravention of the respondent commission’s own rules and regulations (4 NYCRR 66.1). The rules of an administrative agency, duly promulgated, are binding upon the agency as well as upon any other person who might be affected (see People ex rel. Doscher v Sisson, 222 NY 387, 393-394).

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


text:
    Meryl F. Trepuk et al., Appellants, v Norman D. Frank, Individually and as Executor of Joseph Steinhardt, Deceased, Respondent.
    Decided May 18, 1982

      APPEARANCES OF COUNSEL

      Edward P. Ryan for appellants.

      Armand J. Rosenberg for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, and defendant’s motion for summary judgment denied for the reasons stated in the dissenting memorandum of Justice Harold Birns at the Appellate Division (86 AD2d 578, 579).

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


text:
    Eugene Allen, Appellant, v Barbara Gordon et al., Respondents.
    Decided May 18, 1982

      APPEARANCES OF COUNSEL

      Dennis B. Frind for appellant.

      Samuel R. Newborn for Barbara Gordon, respondent.

      Edward A. Miller for Harper and Row Publishers, Inc., and others, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (86 AD2d 514).

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


text:
    The People of the State of New York, Appellant, v Pristal Petro, Respondent.
    Argued March 31, 1982;
    decided May 18, 1982

      APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Martha R. Hochberger and Joel M. Goldberg of counsel), for appellant.

      David Samel and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Appeal dismissed upon the ground that the Appellate Division determination of reversal was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]). Defendant’s challenge to the reliability of the evidence at the suppression hearing was not preserved for appellate review (People v Jenkins, 47 NY2d 722; cf. People v Cona, 49 NY2d 26, 33, n 2). Accordingly, the appeal must be dismissed (People v Dercole, 52 NY2d 956).


text:
    The People of the State of New York ex rel. Robert Collins, Also Known as Willie J. Jones, Appellant, v Kenneth J. Braun, as Sheriff of Erie County, Respondent.
    Submitted May 3, 1982;
    decided May 18, 1982
   Motion for leave to appeal granted. Motion for stay of execution of judgment and for continuation of bail granted.


text:
    Lander Grant et al., Respondents, v Mary Immaculate Hospital, Defendant, and Angelo Sersanti, Appellant.
    Submitted April 12, 1982;
    decided May 18, 1982
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, §40).


text:
    Lander Grant et al., Respondents, v Mary Immaculate Hospital et al., Appellants.
    Submitted April 19, 1982;
    decided May 18, 1982
   Motion by appellant hospital for leave to appeal dismissed upon the grounds that the motion was not timely made and that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, §40).


text:
    Lucille M. Scarborough et al., Appellants, v David S. Zimmon et al., Defendants, and St. Vincent’s Hospital and Medical Center of New York, Respondent.
    Decided May 20, 1982

      APPEARANCES OF COUNSEL

      Raymond, J. Pauley and Brian J. Barney for appellant.

      Jeffrey M. Wilkens for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in granting respondent’s motion to dismiss the complaint as against it pursuant to CPLR 3012 (subd [b]) (see, e.g., Barasch v Micucci, 49 NY2d 594).

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


text:
    James R. Gohery, Appellant, v Spartan Concrete Corp., Defendant, and Tilles Investment Corporation et al., Respondents. (And a Third-Party Action.)

      Decided May 20, 1982

      APPEARANCES OF COUNSEL

      Robert J. Poulson, Jr., and Diane Dubiac for appellant.

      Nathan Cyperstein and Alvin P. Bluthman for Tilles Investment Corporation, respondent.

      Robert F. Saunderson for Peter Scalamandre & Sons, Inc., respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in granting defendants-respondents’ motions to dismiss the complaint pursuant to CPLR 3216 (see Levin v 40 Realty, 80 AD2d 515, affd 54 NY2d 624; Sortino v Fisher, 20 AD2d 25).

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


text:
    Preiss/Breismeister Architects, Respondent, v Westin Hotel Company-Plaza Hotel Division, Also Known as The Plaza, Formerly Known as Western International Hotels-Plaza Hotel Division, Appellant.
    Decided May 20, 1982

      APPEARANCES OF COUNSEL

      Garry Hoppe for appellant.

      Barry B. LePatner for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. We agree that the motion to compel arbitration was properly granted. There is neither waiver nor an election of remedies where, as here, plaintiff moves in court for protective relief in order to preserve the status quo while at the same time exercising its right under the contract to demand arbitration.

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


text:
    Salvatore D’Angelis et al., Plaintiffs, v Leonard Litwin et al., Doing Business as Arwin 74th Street Co., et al., Appellants, and Meyerbank Electric Co., Inc., Respondent. Leonard Litwin et al., Doing Business as Arwin 74th Street Co., et al., Third-Party Plaintiffs-Appellants, v Acme-Ace Inc. et al., Third-Party Defendants-Respondents. Salvatore D’Angelis et al., Plaintiffs, v Eisenberg Sons Carpentry, Inc., Third-Party Defendant-Respondent. Meyerbank Electric Co., Inc., Fourth-Party Plaintiff-Respondent, v Acme-Ace Inc. et al., Fourth-Party Defendants-Respondents.
    Decided May 20, 1982

      APPEARANCES OF COUNSEL

      William Claire and William H. Morris for appellants.

      John T. Pellini and Stanford Kaplan for Meyerbank Electric Co., Inc., respondent.

      Douglas A. Boeckmann for Eisenberg Sons Carpentry, Inc., respondent.

      Langan & Levy for Die Underhill Construction Co., respondent.

      Lester E. Fetell for Acme-Ace Inc., respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. The cross claims against defendant and fourth-party plaintiff Meyerbank Electric Co., Inc., were properly dismissed for failure of the appellants to establish a prima facie case. Furthermore, it cannot be said, as a matter of law, that the verdict in favor of third-party defendant Eisenberg Sons Carpentry, Inc., was so inconsistent as to require a reversal in favor of such third-party defendant or a new trial. Finally, we note that whether appellants might have been entitled to indemnification on the strength of the indemnity clauses contained in the subcontract agreements alone is not an issue preserved for our review.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer. Taking no part: Judge Wachtler.


text:
    In the Matter of Board of Education of the Three Village Central Schools of the Towns of Brook-haven and Smithtown, Respondent, v Gordon M. Ambach, as Commissioner of Education of the State of New York, Respondent, and Mary Jane Leichner, Appellant.
    Decided May 20, 1982

      APPEARANCES OF COUNSEL

      James R. Sandner and Janis Levart Barquist for appellant.

      Vanessa M. Sheehan for board of education, respondent.

      Robert D. Stone and Frederick W. Burgess for Gordon M. Ambach, as Commissioner of Education of the State of New York, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, and the matter remitted to the Appellate Division, Third Department, for review of the judgment of Special Term entered in this proceeding. The order of Special Term entered in a prior separate proceeding brought by respondent Leichner pursuant to CPLR article 78 is not a nonfinal order which necessarily affects the final judgment in this proceeding (CPLR 5501, subd [a], par 1) and, accordingly, is not subject to review in this proceeding.

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


text:
    Peninsula National Bank, Respondent, v Joseph M. Turecamo, Inc., Appellant.
    Decided May 20, 1982

      APPEARANCES OF COUNSEL

      James E. Frankel for appellant.

      Harold N. Schwinger for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. Respondent’s claims with respect to the arbitrator’s refusal to grant an adjournment and his refusal to accept certain evidence raise no cognizable objection to the arbitration award, given our narrow scope of review (CPLR 7511, subd [b], par 1, cl [i]).

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


text:
    H. Russell Bergner et al., Appellants, v Inez Kick, as Executrix of Fred Kick, Deceased, et al., Respondents.

      Decided May 20, 1982

      APPEARANCES OF COUNSEL

      Joseph C. Scollan for appellants.

      Raymond S. Sant for Inez Kick, respondent.

      William L. Dorr for Conifer Development Associates, Inc., respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (85 AD2d 911). (Huggins v Castle Estates, 36 NY2d 427).

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


text:
    In the Matter of Janice Curry, Appellant, v New York City Transit Authority, Respondent.
    Decided May 20, 1982

      APPEARANCES OF COUNSEL

      Alvin C. Morris for appellant.

      Richard K. Bernard and Kenneth Howard Schiffrin for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), judgment affirmed, without costs. There was substantial evidence to support the authority’s determination (see Matter of Collins v Codd, 38 NY2d 269, 270-271).

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


text:
    Merchants Mutual Insurance Company, Appellant, v Donald Hoffman et al., Respondents, et al., Defendant.
    Decided May 20, 1982

      APPEARANCES OF COUNSEL

      Robert M. Wightman for appellant.

      Martin Hotvet for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. When the facts of an occurrence are such that an insured acting in good faith would not reasonably believe that liability on his part will result, notice of the occurrence given by the insured to the insurer is given “as soon as practicable” if given promptly after the insured receives notice that a claim against him will in fact be made. On the record before us, which involves an injury to a child placed in foster care with the insureds by the Department of Social Services which paid all medical expenses of the child and indicated no intention to sue, the weight of the evidence supports the determination of the Appellate Division that notice given by the insureds promptly after suit instituted against them by their former foster child was given “as soon as practicable,” notwithstanding that the action was not begun until after the foster child reached his majority and until five years after the occurrence.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer. Taking no part: Judge Gabrielli.


text:
    Dora Barrick, Respondent, v Meryle Barrick, as Administratrix of the Estate of Robert Barrick, Deceased, Appellant.
    Decided May 20, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Le Mistral, Inc. v Columbia Broadcasting System, 46 NY2d 940).


text:
    In the Matter of Daniel P. Falsioni, as Judge of the Lockport City Court, Petitioner, v New York State Commission on Judicial Conduct, Respondent.
    Submitted May 3, 1982;
    decided May 20, 1982
   Motion for leave to appeal dismissed and, on the court’s own motion, appeal taken as of right dismissed, without costs, each upon the ground that no appeal lies (NY Const, art VI, § 22; Judiciary Law, § 44).


text:
    Leon H. Gildin, Appellant, v Walter H. Weiner et al., Respondents.
    Submitted April 19, 1982;
    decided May 20, 1982
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Judge Wachtler taking no part.


text:
    Ida W. Spaulding, Appellant, v Frank J. Benenati, Respondent.
    Decided May 20, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).

Chief Judge Cooke taking no part.


text:
    The People of the State of New York, Respondent, v William Perry, Appellant.
    Submitted May 10, 1982;
    decided May 20, 1982
   Motion, treated as one to vacate this court’s order of dismissal dated April 6, 1982, denied. [See 56 NY2d 648.]


text:
    Alvin Dworman et al., Appellants, v Gerald Lee et al., Defendants, and Arthur Andersen & Co., Respondent.
    Argued May 6, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Robert Kasanof, Lawrence Iason and Howard E. Heiss for appellants.

      Edward J. Ross and Charles W. Boand for respondent.
   OPINION OF THE COURT

Order affirmed; with costs, for the reasons stated in the memorandum at the Appellate Division (83 AD2d 507).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer. Taking no part: Judge Wachtler.


text:
    Ethel Newfield, as Assignee for the Benefit of Creditors of Jim Fallon Oldsmobile, Inc., et al., Appellants, v General Motors Corporation et al., Respondents.
    Argued May 4, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Richard Engelberg, Frank Mitchell Corso, Marti Green and Mitchel Sommer for appellants.

      Guy Miller Struve, Robert F. Wise, Jr., James L. Kerr and Peter D. Kolbrener for General Motors Corporation, respondent.

      David W. Brand for Joseph Fox and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (84 AD2d 548).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer. Taking no part: Judge Wachtler.


text:
    William Protzman, Respondent, v State of New York, Appellant.
    (Claim No. 60074.)
    Argued May 5, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Vernon Stuart and Shirley Adelson Siegel of counsel), for appellant.

      Joseph L. Watson for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs. The determination of the Appellate Division with respect to the conflicting proof introduced more nearly conforms to the weight of the evidence.

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


text:
    Gary R. Hill, as Administrator of the Estate of Carol A. Hill, Deceased, Respondent, v State of New York, Appellant.
    (Claim No. 60967.)
    Argued May 5, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Vernon Stuart and Shirley Adelson Siegel of counsel), for appellant.

      G. Peter Higgins for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs. The determination of the Appellate Division with respect to the conflicting proof introduced more nearly conforms to the weight of the evidence.

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


text:
    The People of the State of New York, Appellant, v Maurice Williams, Respondent.
    Decided June 8, 1982

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Susan Corkery of counsel), for appellant.

      Elaine Stogel and William E. Hellerstein for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed. On the record this case is indistinguishable from People v Sturgis (38 NY2d 625). We need not consider whether a delay in obtaining an indictment arising from the People’s decision not to seek indictments against fugitive defendants is excludable as a “period of delay resulting from the absence or unavailability of the defendant” within the meaning of CPL 30.30 (subd 4, par [c]). There is neither proof nor finding in the record supporting the contention that the prosecutor has adopted such a policy or that it was actually the cause of the delay in this case.

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


text:
    In the Matter of the Arbitration between Spanish Gardens Company et al., Appellants, and Local 32B-32J Service Employees International Union, AFL-CIO, et al., Respondents.
    Decided June 8, 1982

      APPEARANCES OF COUNSEL

      Robert G. Tischler for appellants.

      Michael Geffner for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appelláte Division (86 AD2d 815).

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


text:
    Amsterdam Wrecking & Salvage Co., Appellant, v Greater Amsterdam School District, Respondent.
    Argued May 3, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      James A. Lombardo and Richard T. Horigan for appellant.

      William Mycek and John J. Mycek for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (83 AD2d 654; see, also, Public Improvements v Board of Educ., 56 NY2d 850). Moreover, unlike Salesian Soc. v Village of Ellenville (41 NY2d 521) where the village, neither at trial nor before the Appellate Division, ever raised the matter of the plaintiff’s failure to timely serve and file a notice of claim pursuant to former section 341-b of the Village Law, here the school district promptly moved to dismiss the action for failure to file a timely notice of claim.

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


text:
    George Barrett, as Administrator of the Estate of Camille Barrett, Deceased, et al., Appellants, v Kasco Construction Co., Inc., Respondent.
    Decided June 8, 1982

      APPEARANCES OF COUNSEL

      Andrew M. Harrison and Morris J. Eisen for appellants.

      Leo Rothbard for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. We cannot say, as a matter of law, that the Appellate Division abused its discretion by deeming defendant’s answer amended to include the affirmative defense of res judicata on a motion for summary judgment. Furthermore, although the prior judgment of Supreme Court does not specifically recite that it is “on the merits”, that judgment should be given res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree (cf. Palmer v Fox, 28 AD2d 968, affd 22 NY2d 667).

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


text:
    In the Matter of Freeport Randall Co. et al., Appellants, v Robert E. Herman, as State Rent Administrator of the Office of Rent Administration, New York State Division of Housing and Community Renewal, Respondent.
    Argued May 3, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Peter S. Herman for appellants.

      Martin A. Shlufman and Joseph B. Goldman for respondent.

      Robert Abrams, Attorney-General (Daniel M. Cohen and Shirley Adelson Siegel of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

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

Petitioners argue that as to leases they entered into with tenants prior to the adoption by the Board of Trustees of the Village of Freeport of a resolution declaring the existence of an emergency pursuant to subdivision a of section 3 of the Emergency Tenant Protection Act of 1974 (ETPA) (L 1974, ch 576, § 4), the act, to the extent that it requires a refund of so much of the rent paid prior to the date of adoption of the resolution as is in excess of the fair market rent determined after such adoption is an unconstitutional impairment of contract in violation of section 10 of article I of the United States Constitution. They argue further that they were entitled to a hearing on comparable rents as related to the establishment of the fair market rent for the housing units involved. Neither argument withstands analysis.

Each of the leases in question was made after passage of the ETPA, which in subdivision b of section 9 expressly provides that “Where the state division of housing and community renewal has determined that the rent charged is in excess of the fair market rent it shall order a refund of any excess paid since January first, nineteen hundred seventy-four or the date of the commencement of the tenancy, whichever is later.” Every lease entered into after the effective date of the ETPA was, therefore, subject to the power of the State reserved by that provision to itself and to the municipalities authorized by subdivision a of section 3 to determine the emergency need for controlling rents within its borders (of which Freeport is one), to require that rent paid under such a lease be refunded to the extent that the rent reserved exceeded the fair market rent as thereafter determined. The teaching of Ogden v Saunders (12 Wheat [25 US] 212) and Veix v Sixth Ward Assn. (310 US 32, 38), recently reaffirmed by the Supreme Court in Allied Structural Steel Co. v Spannaus (438 US 234, 242, n 13; see, also, Tribe, American Constitutional Law, §§ 9-5, 9-6), is that petitioners’ apartments were “an enterprise already regulated in the particular” to which they now object at the time the leases in question were made. That being the case, the “retroactivity” which petitioners claim invalidates the refund requirement as to them under the contract clause simply does not exist.

Petitioners’ comparability argument is no stronger. Subdivision b of section 9 of ETPA expressly mandates that when a tenant application under that subdivision is under consideration “the state division of housing and community renewal shall be guided by such guidelines” (i.e., guidelines promulgated by the local rent guidelines board). Only as to an application by owner or tenant under subdivision a of section 9 are “the rents generally prevailing in the same area” to be considered. Petitioners filed no application under subdivision a and their suggestion that they could not do so within the 60 days allowed because the guidelines were not adopted until the 60th day after the local effective date is simply specious. Subdivision a allows the owner to seek adjustment of the “initial legal regulated rent,” which is defined by section 6 (subd b, cl 2) as “the rent reserved in the last effective lease” and as concerns an adjustment in that rent at the request of the owner under subdivision a has nothing to do with local guidelines.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v George Dekle, Appellant.
    Argued May 4, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Jonathan M. Kratter and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Roslyn Lipton Tucker, Norman Barclay, Mark Dwyer and William J. Comiskey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant moved for a trial order of dismissal but the only basis given for the motion was that the element of immediacy required for conviction of robbery was not proved because the knife displayed was closed, required two hands to open and defendant had but one hand free. The court charged that “‘Immediately’ means straight away, promptly, has its ordinary meaning — no more and no less. No specific time is required for immediately.” Defendant took no exception. Defendant thus failed to preserve for our review the question he now argues: whether the time and distance between the taking and the display of the knife foreclosed a jury finding that, as required by section 160.00 of the Penal Law, the threat of force occurred “immediately after the taking” (People v Stahl, 53 NY2d 1048,1050; People v Cona, 49 NY2d 26, 33, n 2).

Neither CPL 470.35 (subd 1) nor CPL 470.15 (subd 4, par [b]) requires a different conclusion. The former allows argument before us of a point not argued before the Appellate Division but preserved by protest at the trial level as required by CPL 470.05 (subd 2). The latter does not bring within CPL 470.35 (subd 2, par [b]) a question of law which, there having been an affirmance below, adversely affects the respondent in this court. Nor is there a due process violation when there is evidence from which a rational trier of fact could find the essential elements of the crime as those elements were charged to the jury without exception beyond a reasonable doubt. There is neither constitutional nor jurisprudential error in permitting guilt to be determined under a penal statute as construed by the common assumption of both attorneys and the court. To hold otherwise is to encourage gamesmanship and waste judicial resources in order to protect a defendant against a claimed error protection against which requires no more than a specific objection on his part.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Craig A. Bennett, Appellant.
    Argued May 5, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Stephen R. Coffey for appellant.

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At the arraignment, defendant was provided with written notice that the People intended to offer as evidence at trial both a written and an oral statement. (See CPL 710.30, subd 1.) Thereafter, the People agreed to provide defendant with a copy of the written confession. Defendant also was informed that the “sum and substance” of his oral statement was contained in that writing.

The trial court found that the oral admission was substantially the same as the written confession, and that finding was affirmed by the Appellate Division. There being no basis in the record to disturb the conclusion of both courts below that the oral statement was substantially the same as the written one, we cannot say, as a matter of law, that the People failed to comply with the requirements of CPL 710.30.

We have considered defendant’s remaining contention and have found it to be without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of the Claim of David Reynolds, Respondent, v Vincent R. Masick et al., Respondents. Workers’ Compensation Board, Appellant.
    Argued May 7, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Theresa E. Wolinski, Shirley Adelson Siegel and Henriette Frieder of counsel), for appellant.

      John J. Cunningham for Vincent R. Masick, respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly held, as a matter of law, that claimant was not entitled to workers’ compensation benefits. The Workers’ Compensation Board found that the automobile accident in which claimant was injured was caused by the faulty brakes on his vehicle. Claimant’s own testimony at the compensation board hearing was that he knew and had known that the brakes on his car needed repair. By continuing to operate the vehicle knowing that the brakes were in need of repair, claimant was violating subdivisions 1 and 32 of section 375 of the Vehicle and Traffic Law.

Subdivision 4 of section 205 of the Workers’ Compensation Law stated that: “No employee shall be entitled to benefits under this article * * * for any disability * * * resulting from any injury or sickness sustained in the perpetration by the employee of an illegal act”. We have held that in order to bar an award of compensation benefits, the illegal act must be causally related to the injury. (Matter of Anderson v Cohen Iron Works, 38 NY2d 511, 515.) We adhere to that interpretation of the policy behind the Workers’ Compensation Law. On the proof that was before the board, it could properly find that the illegal act — that is, the use' of the vehicle with the knowledge that the brakes were defective — was the cause of the accident.

Since the board found on substantial evidence that the accident was caused by the operation of a defective vehicle, the Appellate Division correctly reversed the Workers’ Compensation Board and dismissed the claim. (Workers’ Compensation Law, § 23.)

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Francis Christian, Appellant, v New York City Employees’ Retirement System et al., Respondents.
    Argued May 6, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Kenneth E. Gordon and Murray A. Gordon for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Ronald E. Sternberg and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the majority at the Appellate Division that the medical board was not arbitrary or capricious in its unanimous conclusion that appellant had failed to sustain his burden of establishing a causal connection between the incident of July 10, 1975 and his disabling cataracts. The board explicated the rationale behind its decision, that decision was warranted by the evidence before the board, and, the issue of causation being one for medical judgment, the board of trustees was entitled to rely on the opinion of the medical board.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Mark Weston, Appellant.
    Argued May 3, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Megan Tallmer and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that the testimony of the arresting officer could not properly constitute the basis of the trial court’s finding of probable cause has not been preserved for our review in that counsel’s objections to the court’s reliance on the testimony focused upon the sufficiency rather than the reliability of the officer’s testimony (People v Jenkins, 47 NY2d 722).

Similarly unpreserved is defendant’s contention that the trial court erred in not issuing a pretrial ruling regarding the admissibility of the knife at trial. If defendant believed that he was prejudiced by references to the knife at trial, to the extent that he was denied a fair trial, it was necessary that he move for a mistrial on this specific ground in order to preserve the issue for appellate review (CPL 470.05, subd 2; 280.10, subd 1; People v Medina, 53 NY2d 951). Defendant’s only motion for a mistrial, however, which followed the District Attorney’s opening statement, was grounded solely upon the People’s inability to connect the knife to defendant and was not based on any claim of prejudice as a result of references to the knife.

Finally, we have reviewed defendant’s due process claim regarding the prejudicial effect of various remarks by the People in summation and find the contention to be without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v John R. De Vito, Appellant.
    Argued May 5, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Murray Bogatin for appellant.

      Patrick Henry, District Attorney (John G. Poli of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Although it was inappropriate for the trial court to address counsel as it did in the presence of the jury, it was not error for the court to prevent counsel from cross-examining the witness concerning the possibility of her receiving a life sentence, a risk to which the defendant was also exposed.

No door had been opened to this inquiry and it was not necessary to specify the potential sentence in order to explain to the jury the extent of the arrangement the witness had made with the prosecutor for a grant of immunity (People v Roth, 30 NY2d 99).

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

Order affirmed in a memorandum.


text:
    Joseph R. Losing & Associates, Inc., Appellant, v Continental Casualty Company, Respondent, et al., Defendants.
    Argued May 6, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Thomas F. De Soye and John J. Connolly for appellant.

      William H. Morris and Gerald P. McMorrow for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Appellant contends that the reporting of a “potential claim” to the insurance carrier “locked” appellant into that carrier, inhibiting its freedom of contract because no other insurer would agree to cover the potential claim which was reported. It is appellant’s contention that this “claims made” policy violated the public policy of this State. Inasmuch as the particular clause in question did not violate any statutory mandate or prohibition or any regulation of the Superintendent of Insurance, this court cannot say that the clause was violative of public policy. Any other substantive issues will be resolved at the trial.

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

Order affirmed, etc.


text:
    Public Improvements, Inc., Appellant, v Board of Education of the City of New York (P.S. 72, Bronx), Respondent.
    Argued May 3, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Alan Levy and Franklin E. Tretter for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (John F. Grubin and John P. McCahey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (81 AD2d 537). We but add that estoppel is unavailable against a public agency (see Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88; see, also, Matter of Bloomberg-Dubin v Board of Educ., 82 AD2d 854, affd 56 NY2d 555). And, as we have recently had occasion to reiterate, in the absence of an affirmative agreement to the contrary, of which there is no indication here, compliance with the provisions of section 3813 of the Education Law is a “condition precedent” to the commencement of an action against any school district or board of education (cf. Matter of Geneseo Cent. School [Perfetto & Whalen Constr. Corp.], 53 NY2d 306, 311, citing Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283, 288).

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

Order affirmed, with costs, in a memorandum.


text:
    Alfred J. Hasenbein, Appellant, v Muriel Siebert, as Superintendent of Banks of the State of New York, et al., Respondents.
    Argued May 5, 1982;
    decided June 8, 1982

      APPEARANCES OF COUNSEL

      Leonard M. Simon for appellant.

      Robert Abrams, Attorney-General {Ann Horowitz and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Section 397 (subd 2, par [b], cl [3]) of the Banking Law, which was designed to eliminate nepotism, does not violate plaintiff’s right of equal protection and due process of law. It does not interfere with his freedom to marry, because its focus is on marital relationships, not status (cf. Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506, 512-514). Nor, simply because it precludes him from sitting as a director of one savings and loan institution, does it interfere with his right to pursue his chosen profession. Moreover, the statute is a rational exercise of the State’s police power, reasonably calculated to achieve its goal of eliminating nepotism in the savings and loan industry (see Memorandum of State Banking Dept, NY Legis Ann, 1971, p 110; see Minnesota v Clover Leaf Creamery Co., 449 US 456, reh den 450 US 1027; Town of North Hempstead v Exxon Corp., 53 NY2d 747).

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

Order affirmed, with costs, in a memorandum.


text:
    Macmillan, Inc., Respondent, v CF Lex Associates et al., Appellants.
    Submitted May 17, 1982;
    decided June 8, 1982
   Motion to dismiss the appeal denied.


text:
    Betty O. Muka, Appellant, v Al Greene, Respondent.
    Decided June 8, 1982
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department. A direct appeal does not lie from the nonfinal order striking the case from the calendar; nor does a direct appeal lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    Lois T. Pentifallo et al., Respondents, v Hilton of Panama, S. A., Appellant, et al., Defendants.
    Decided June 8, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the question certified does not present a question of law decisive of the correctness of the determination of the Appellate Division.


text:
    Edward H. Phillips, Jr., Appellant, v City of Syracuse et al., Respondents. Edward H. Phillips, Jr., Appellant, v State of New York, Respondent.
    Submitted April 12, 1982;
    decided June 8, 1982
   Motion to dismiss portion of appeal denied.


text:
    Melvin D. Ungar, Individually and on Behalf of All Those Similarly Situated, et al., Appellants, v Holmes Protection, Inc., Respondent.
    Decided June 8, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 36, subd [b], pp 143-144).


text:
    Angel Crespo, an Infant, by His Mother and Natural Guardian, Felicita Crespo, et al., Respondents, v Frank Hall, as Director of the New York State Division for Youth, et al., Appellants, et al., Defendants.
    Argued May 3, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert J. Schack and Peter H. Schiff of counsel), for appellants.

      Barbara Salken, Caesar Cirigliano, Michele Maxian and Bennett M. Lincoff for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed.

The unambiguous statutory scheme establishes that, immediately upon sentencing, a juvenile offender must be committed to the custody of the Director of the State Division for Youth (DFY) for confinement in a secure DFY facility. CPL 430.20 (subd 1) provides that “[w]hen a sentence of imprisonment is pronounced * * * the defendant must forthwith be committed to the custody of the appropriate public servant” (emphasis added). In the case of a juvenile or youthful offender sentenced to an indeterminate or definite sentence, custody is “committed to * * * the director of the division for youth who shall arrange for the confinement of such offender in secure facilities of the division” (Penal Law, § 70.20, subd 4). DFY is obligated to maintain such secure facilities and provide appropriate services (Executive La w, § 515-b).

Contrary to the argument of defendants DFY and Hall, the director, the statutes permit no discretion as to when juvenile offenders must be accepted for transfer. “[Fjorthwith” cannot be read to permit transfer whenever DFY deems it prudent. “[FJorthwith” here means without delay. Trial Term thus correctly determined that DFY had the legal responsibility to provide facilities and to place sentenced juvenile offenders in such facilities upon sentencing.

Similarly unpersuasive is defendants’ challenge to the determination that DFY’s obligation to accept juvenile offenders committed to it must be satisfied within 10 days of sentencing. That determination, left undisturbed by the Appellate Division, cannot be said to be inappropriate on this record and in light of defendants’ reluctance to act promptly. There was introduced at trial substantial evidence concerning the relative merits of detention facilities operated by the City of New York and the State and the State’s capacity to receive sentenced juvenile offenders. The trial court found that existing DFY facilities were underused and could accommodate juvenile offenders held after sentence in the city facility. Defendants point to nothing to show that the 10-day limit for transfer is inadequate for routine processing or is otherwise unreasonable. Of course, this limit should yield in a particular case when there is a demonstrated need for flexibility.

Trial Term granted injunctive relief, ordering DFY to accept transfer of plaintiffs and all other juvenile offenders within 10 days of sentencing. Inasmuch as class certification was denied and plaintiffs apparently already have been placed in DFY facilities, such a broad order is inappropriate under the circumstances. Declaratory relief is sufficient to establish the rights at issue. The order of the Appellate Division therefore should be modified to the extent of deleting the injunctive relief and declaring that the State is obligated to transfer a juvenile offender to a DFY facility within 10 days of sentencing unless exigent circumstances which justify a further limited delay are present in a particular case.

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

Order modified, etc.


text:
    In the Matter of Niagara Recycling, Inc., et al., Appellants, v Town Board of the Town of Niagara et al., Respondents.
    Argued May 13, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      Edwin P. Yaeger for appellants.

      Rita Merino Hager and Robert P. Merino for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Stewart F. Hancock, Jr., at the Appellate Division (83 AD2d 335).

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


text:
    Peter F. Cohalan, as Supervisor of the Town of Islip, et al., Respondents, v George E. Lechtrecker, as Executor of John Archambault, Deceased, et al., Appellants.
    Decided June 10, 1982

      APPEARANCES OF“ COUNSEL

      Warren Landau for appellants.

      William R. Bennett, Town Attorney (Lark J. Shlimbaum of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (84 AD2d 775).

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


text:
    Murray Sporn, Appellant, v Suffolk Marketing, Inc., Respondent.
    Argued May 6, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      Richard J. Reisch, Richard A. Sporn and Roger Bruce Feinman for appellant.

      Joseph Calderon and Richard A. Whitney for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant Suffolk Marketing, Inc., contracted with Motown Records Corp. for the right to market an album of recordings of a certain well-known artist. Plaintiff asserts that by oral agreement he was engaged by defendant to procure these recording rights from Motown and that his efforts brought about the licensing agreement which was ultimately reached. Defendant maintained, however, that plaintiff’s complaint should be dismissed on the basis of section 5-701 (subd a, par 10) of the General Obligations Law, which provides in pertinent part that an oral agreement is void if such agreement “[i]s a contract to pay compensation for services rendered in * * * negotiating the purchase, sale, exchange, renting or leasing of * * * a business opportunity”. The issue in this case is whether the contract between defendant and Motown involves the sale of a business opportunity within the meaning of the statute.

In Freedman v Chemical Constr. Corp. (43 NY2d 260) we noted the potential pitfalls in making sweeping generalizations concerning the scope of the term “business opportunity” contained within the statute. The difficulties inherent in a judicial declaration of the ultimate scope of this statute require that these situations be approached substantially on a case-by-case basis. In the context of the present case, we conclude that the Appellate Division was correct in holding that the licensing agreement involved in this case constituted a business opportunity within the meaning of the statute and that plaintiff’s claim is barred by the Statute of Frauds.

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

Order affirmed, with costs, in a memorandum.


text:
    Channa S. Muallem, Individually and as Natural Guardian of Daniel E. Muallem, an Infant, Respondent, v City of New York, Appellant, and Harry Franco, Defendant and Third-Party Plaintiff-Appellant. Gasemaro Buonocore, Third-Party Defendant-Respondent.
    Argued May 11, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      Albert N. Podell and Stuart A. Blander for City of New York, appellant.

      Charlene I. Lund for Harry Franco, appellant.

      Robert S. Fader, John Anthony Bonina and Charles H. Dobkin for plaintiff-respondent.

      Audrey Rogers, J. Robert Morris, L. Kevin Sheridan and Steven Di Joseph for third-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative for reasons stated in the opinion by Presiding Justice Milton Mollen at the Appellate Division (82 AD2d 420).

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


text:
    The People of the State of New York, Respondent, v William Hutchinson, Appellant.
    Argued May 11, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      Lynn W. L. Fahey and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Marlene Nadel and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

With respect to his conviction for attempt to commit robbery, defendant contends that inasmuch as he was charged with attempting to steal money “from Dennis O’Connor”, the People were required to prove that O’Con-nor was an “owner”, i.e., a “person who has a right to possession * * * superior to that of the taker” (Penal Law, § 155.00, subd 5). The jury was charged in the language of the statute, which did not require proof here that O’Connor had an independent right of possession but only that he had a possessory right which, however limited or contingent, was superior to that of defendant. Because the proof was uncontradicted that O’Connor was an employee of the bank it cannot be said that the jury was not warranted in concluding that as such employee he had a right of possession superior to that of defendant, who had no right of possession whatsoever. In this view it is immaterial that the proof was that the bank’s money came from the drawer of two other tellers.

In relation to his conviction for escape (Penal Law, § 205.10, subd 2), defendant urges that it was error for the trial court not to have given a charge requiring a showing of knowledge or volition. The Trial Judge had charged the language of the statute (“having been arrested for a felony, he escapes from custody”) and the statutory definition of custody (“restraint by a public servant pursuant to an authorized arrest” [Penal Law, § 205.00, subd 2]) and had told the jury that to convict on the escape count it must find that on September 11, 1977 defendant had been lawfully arrested for a felony, that he was then in the custody of a police officer pursuant to an authorized arrest and that on that day he escaped from custody. The commonly understood, definition of the verb “escape” is “to get away (as by flight or conscious effort): break away, get free or get clear (the prisoner escaped from prison)” (Webster’s Third New International Dictionary, p 774; see, also, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 205.05, p 437). While the better practice in light of defendant’s specific request for a charge on knowledge or volition would have been to point up for the jury that escape involves conscious effort, independent proof of intent is not required absent facts suggesting a purpose other than the evasion of custody, as for example, to evade the outbreak of fire in the area of confinement. Therefore, the Trial Judge’s refusal to charge as requested was not reversible error in view of the commonly understood meaning of the word escape and of the evidence which established that defendant had been under police guard in the hospital for some six weeks prior to September 11, 1977, and left the hospital at 5:30 a.m. on that day without authorization.

Defendant’s final claim in our court that the trial court permitted an excessive volume of testimony with respect to another very similar bank robbery was not preserved for our review.

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

Order affirmed in a memorandum.