text:
    Harry E. Andersen, as Administrator of the Estate of Arthur H. Andersen, Deceased, Appellant, v Long Island Railroad, Respondent, et al., Defendants.
    Argued March 24, 1983;
    decided April 28, 1983

      APPEARANCES OF COUNSEL

      E. Allan Riebesehl and John P. Kle for appellant.

      Mitchell Kaufman and Seymour H. Metnick for respondent.
   OPINION OF THE COURT

Memorandum.

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

The factual and procedural background out of which this appeal arises is set forth in the opinion at the Appellate Division (88 AD2d 328).

The 1976 amendment to section 1276 of the Public Authorities Law did not abolish the requirement that there be presented a demand to be followed by a 30-day waiting period prior to the institution of an action such as the present. Before that amendment, subdivisions 1, 2 and 6 provided as follows:

“Actions against the authority.

“1. As a condition to the consent of the state to such suits against the authority, in every action against the authority for damages, for injuries to real or personal property or for the destruction thereof, or for personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority or other officer designated for such purpose and that the authority has neglected or refused to make an adjustment or payment thereof.

“2. An action against the authority founded on tort shall not be commenced more than one year after the cause of action therefor shall have accrued, nor unless a notice of claim shall have been served on the authority within the time limited by and in compliance with all the requirements of section fifty-e of the general municipal law * * *

“6. Each subsidiary corporation of the authority shall be subject to the provisions of this section as if such subsidiary corporation were separately named herein, provided, however, that a subsidiary corporation of the authority which is a stock corporation shall not be subject to the provisions of this section except with respect to those causes of action arising on and after the first day of the twelfth calendar month following that calendar month in which such stock corporation becomes a subsidiary corporation of the authority.”

On September 1,1976 (L 1976, ch 745, § 4), subdivision 6 was amended to read: “6. The provisions of this section which relate to the requirement for service of a notice of claim shall not apply to a subsidiary corporation of -the authority. In all other respects, each subsidiary corporation of the authority shall be subject to the provisions of this section as if such subsidiary corporation were separately named herein, provided, however, that a subsidiary corporation of the authority which is a stock corporation shall not be subject to the provisions of this section except with respect to those causes of action arising on and after the first day of the twelfth calendar month following that calendar month in which such stock corporation becomes a subsidiary corporation of the authority.”

Literally read the 1976 amendment of subdivision 6 touched only those provisions of section 1276 “which relate to the requirement for service of a notice of claim”, i.e., the provisions contained in subdivision 2. “Notice of claim” can be a phrase of art, and that the Legislature so used it in this instance and intended a literal reading of the amendment appears from the memorandum of the Judicial Conference in support of the legislation (NY Legis Ann, 1976, pp 9-10, quoted in relevant part at 88 AD2d, p 334). Particularly pertinent is the sentence: “The amendment deletes the requirement that a notice of claim precede the commencement of an action against a subsidiary, but would provide, however, that in all other respects, each subsidiary shall be subject to the other provisions of the section”. (NY Legis Ann, 1976, pp 10-11.)

Moreover, there are compelling reasons to distinguish between service of a “notice of claim” and presentation of a “demand” or “claim” arising from the functional difference between the two. Presentation of the demand at anytime within the statutorily prescribed period of limitations, with its accompanying 30-day waiting period, is designed to afford the public authority an opportunity, prior to incurring the expenses of litigation, to evaluate the claim and to determine whether to attempt an adjustment or to pay the claim. By some contrast, service of the notice of claim, within the 90-day period of limitations prescribed therefor, serves to assure that the public authority will be given prompt notice after the accrual of the claim to permit effective investigation of the circumstances out of which the claim arose.

We agree with the reasoning by which both the Appellaté Division, Second Department (in this case), and the Appellate Division, Fourth Department (in Niemczyk v Pawlak, 76 AD2d 84), reached the conclusion that the prescriptions of subdivision 1 of section 1276 were not affected by the 1976 amendment of subdivision 6.

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Paul A. Anostario, Respondent, v Vincent E. Vicinanzo et al., Appellants.
    Argued March 23, 1983;
    decided April 28, 1983

      APPEARANCES OF COUNSEL

      Richard T. Horigan and Francis Bergan for appellants.

      Arnold M. Gordon for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, Montgomery County, dismissing the complaint on the merits should be reinstated.

Plaintiff seeks to enforce an alleged oral agreement, which has, as its object, the purchase of real property. We agree with the determinations below that the contract is subject to the Statute of Frauds (General Obligations Law, § 5-703, subd 1) which has not been complied with, inasmuch as the writings offered by plaintiff do not sufficiently spell out the terms of the alleged agreement. Relief in the form of specific performance of the alleged agreement was nevertheless granted by the Appellate Division, apparently on the basis that plaintiff had proved sufficient acts of part performance as to remove the oral agreement from the statute’s mandate.

The oral agreement alleged by plaintiff provided that plaintiff and defendant would hold equal shares of a corporation formed to hold title to and run the affairs of a seven-story office building. Defendant, an attorney, was to arrange for the purchase and financing of the building and to perform legal services for the corporation on a continuing basis. Plaintiff, for his part, was to be responsible for the over-all management of the building, including repairs and remodeling and handling the tenants. Prior to the formation of the corporation, plaintiff and defendant signed a purchase agreement for the building, as copromoters of a corporation to be formed. Thereafter, both parties signed a bank note for the sum of $37,000 which was used for a down payment. This obligation was paid when defendant secured the mortgage commitment. Plaintiff eventually assigned his interest in the purchase contract to the newly formed corporation. These actions are relied upon by plaintiff as constituting sufficient part performance to remove the alleged oral agreement from the operation of the Statute of Frauds.

The doctrine of part performance may be invoked only if plaintiff’s actions can be characterized as “unequivocally referable” to the agreement alleged. It is not sufficient, as Presiding Justice Mahoney noted in the dissent below (56 AD2d 406, 412), that the oral agreement gives significance to plaintiff’s actions. Rather, the actions alone must be “unintelligible or at least extraordinary”, explainable only with reference to the oral agreement (Burns v McCormick, 233 NY 230, 232; Cooper v Schube, 86 AD2d 62, affd on opn below 57 NY2d 1016). Plaintiff’s actions, viewed alone, are not “unequivocally referable” to an agreement to convey a one-half interest in defendant’s corporation. While the agreement alleged provides a possible motivation for plaintiff’s actions, the performance is equivocal, for it is as reasonably explained by the possibility of other expectations, such as the receipt of compensation other than in the form of an equity interest in the corporation. Moreover, the performance undertaken by plaintiff is also explainable as preparatory steps taken with a view toward consummation of an agreement in the future (see Grade Sq. Realty Corp. v Choice Realty Corp., 305 NY 271, 282). Inasmuch as no basis for application of an exception to the Statute of Frauds has been demonstrated, Supreme Court properly dismissed plaintiff’s complaint.

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

Order reversed, with costs, and the judgment of Supreme Court, Montgomery County, reinstated in a memorandum.


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    In the Matter of William C. MacMillen, Jr., Individually and as President of Horsemen’s Benevolent and Protective Association, New York Division, Appellant, v New York State Racing and Wagering Board, Respondent, and Jockeys’ Guild, Inc., Intervenor-Respondent.
    Argued March 24, 1983;
    decided April 28, 1983

      APPEARANCES OF COUNSEL

      Herman E. Cooper and Jonathan L. Sulds for appellant.

      Robert Abrams, Attorney-General {Theresa E. Wolinski, Peter H. Schiff and Henriette Frieder of counsel), for respondent.

      Christopher S. Rooney and Roger D. Smith for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

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

Section 57 of the Workers’ Compensation Law mandates that every State or municipal official authorized to issue permits obtain proof of compensation insurance coverage for all “employees in a hazardous employment.” The New York State Racing and Wagering Board is a permit issuing agency, racing is a hazardous employment and the relationship between an owner and a jockey may be held to be that of employer-employee (Matter of Rice v Stoneham, 254 NY 531; Matter of Pierce v Bowen, 247 NY 305). Whether in fact a particular jockey is an employee or an independent contractor is, however, a matter determinable by the Workers’ Compensation Board only after an injury has occurred (see O’Rourke v Long, 41 NY2d 219). It follows that the New York State Racing and Wagering Board has the authority to condition issuance of an owner’s permit upon the provision of “compensation insurance coverage for jockeys who ride their horses in races at this state’s thoroughbred tracks.” The board’s declaratory ruling so stating is, therefore, neither unauthorized, nor arbitrary and capricious, nor inconsistent with the board’s rule 4006.3 (9 NYCRR).

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Stephen Moses, Appellant.
    Decided April 28, 1983
   Appeal dismissed, by the Court of Appeals sua sponte, upon the ground that appellant is not presently available to obey the mandate of the Court of Appeals in the event of an affirmance (see People v Genet, 59 NY 80; People v Del Rio, 14 NY2d 165; People v Sullivan, 28 NY2d 900; People v Wardlow, 48 NY2d 669).


text:
    Betty O. Muka, Appellant, v Frederick B. Bryant, Respondent. (And 32 Additional Actions.)
    Submitted April 11, 1983;
    decided April 28, 1983
   Motion to vacate the Court of Appeals order dated March 21, 1983 dismissing the appeals herein, denied. [See 58 NY2d 1115.]


text:
    Betty O. Muka, Appellant, v New York State Bar Association, Respondent. Betty O. Muka, Appellant, v John A. Williamson, Respondent.
    Submitted April 11, 1983;
    decided April 28, 1983
   Motions to vacate the Court of Appeals order dated March 21,1983 dismissing the appeals herein, denied. [See 58 NY2d 1115.]


text:
    In the Matter of Syracuse University, Appellant, v City of Syracuse et al., Respondents.
    Submitted April 4, 1983;
    decided April 28, 1983
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not the type of nonfinal order which comes within the meaning of CPLR 5602 (subd [a], par 2).


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    In the Matter of Curtis W. Gregory, Respondent, v Board of Elections of the City of New York, Respondent, and Joan A. Gill, Appellant. (And Another Proceeding.)
    Argued April 29, 1983;
    decided April 29, 1983

      APPEARANCES OF COUNSEL

      Robert Allan Muir, Jr., for appellant.

      H. Spencer Kupperman for respondent.
   OPINION OF THE COURT

Memorandum.

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

Issues with respect to the timeliness of the institution of the invalidation proceeding and the manner of service of the order to show cause do not go to subject matter jurisdiction and were waived by the candidate’s participation in the proceeding. As to the remaining issue, the determination, concurred in by all the Justices in the Appellate Division, that Mrs. Gill is not a resident of the Community School Board District in which she is a candidate for office more nearly comports with the weight of the evidence.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur; Judge Fuchsberg taking no part.

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of John L. Lavelle et al., Respondents, v Anna M. Gonzalez, Appellant, and Matteo Lumetta et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued April 29, 1983;
    decided April 29, 1983

      APPEARANCES OF COUNSEL

      Paul Henry Janis and James R. Sandner for appellant.

      Martin E. Connor for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, for the reasons stated in the memorandum opinion of that court.

Arguments raised by appellant in our court grounded on the manual and regulations promulgated by the board of education with the approval of the board of elections are unavailing inasmuch as the provisions of the Education Law allow for the promulgation of such regulations only to the extent that they are not inconsistent with the provisions of the Education Law (Education Law, § 2590-c, subd 6, pars [1], [32]). The latter law includes through incorporation by reference the provisions of the Election Law in which the Appellate Division rested its determination. (Education Law, § 2590-c, subd 6, par [31]).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur; Judge Fuchsberg taking no part.

Order affirmed, without costs, in a memorandum.


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    Edward F. McDonough et al., as Trustees of Hudson Valley Community College, Appellants, v William J. Murphy, as Rensselaer County Executive, et al., Respondents.
    Submitted April 25, 1983;
    decided April 29, 1983
   On the court’s own motion, appeal by plaintiff Fleming dismissed upon the ground that, as to said plaintiff, the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic insofar as made by plaintiff Fleming and denied insofar as made by the remaining plaintiffs. Motion to disqualify attorney Honig denied. Motion for a preference granted and case set down for argument on June 8,1983, appellants’ papers on appeal to be served and filed on or before May 10 and respondents’ on or before May 20, 1983.


text:
    In the Matter of Carol A. Krueger, Respondent, v Martin Richards et al., Constituting the Board of Elections of the City of New York, Respondents, and Lois M. Hickey, Appellant.
    Argued May 2, 1983;
    decided May 2, 1983

      APPEARANCES OF COUNSEL

      Robert S. Sikorski for appellant.

      Robert Allan Muir, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division granting the petition to invalidate the nominating petition should be affirmed.

Respondent brought no petition to validate, which would have required that she specify the signatures which she claimed the board had erroneously invalidated. Instead, after the statutory time period (Election Law, § 16-102, subd 2), shfe served an answer to the petition to invalidate containing an affirmative defense in which she claimed, without specification, that there were sufficient valid signatures to her petition. To permit her to do so would be manifestly unfair (see Matter of Suarez v Sadowski, 48 NY2d 620, 621) because her opponents would thereby be deprived of the full opportunity afforded them by the statute to meet her proof.

The Appellate Division did not err, therefore, in precluding her from relying upon the validity of such unspecified signatures. Nor are there present in this case unique circumstances, such as were present in Matter of Halloway (77 AD2d 932, 933; see Matter of Pell v Coveney, 37 NY2d 494). In light of this disposition, we do not reach the substantive issues raised.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur; Judge Fuchsberg taking no part.

Order affirmed, without costs, in a memorandum.


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    In the Matter of the Claim of Vincent A. LaRocca, Appellant. New York City Department of Transportation, Respondent; Lillian Roberts, as Commissioner of Labor, Respondent.
    Decided May 3, 1983

      APPEARANCES OF COUNSEL

      James W. Cooper for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Body Schorr of counsel), for New York City Department of Transportation, respondent.

      Robert Abrams, Attorney-General, for Lillian Roberts, Commissioner of Labor, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the decision of the Unemployment insurance Appeal Board reinstated.

Claimant was charged by his employer with falsely reporting mileage traveled during the course of his employment as a motor vehicle operator for the New York City Department of Transportation. An informal conference was held by his employer, after which claimant was found guilty and suspended for 30 days.

Thereupon, claimant applied for unemployment benefits but was determined to be ineligible by the local board on the ground that he had been suspended from his job for misconduct. At a hearing before the Unemployment Insurance Appeal Board, the administrative law judge overruled the local board’s determination, finding that claimant did not voluntarily leave his job and that claimant’s actions did not amount to misconduct for purposes of qualifying for unemployment benefits. The Unemployment Insurance Appeal Board affirmed and the employer appealed. The Appellate Division reversed and remitted for further proceedings, holding that claimant voluntarily left his employment.

Section 593 (subd 1, par [a]) of the Labor Law provides that, for a limited period measured by his subsequent employment, a claimant is ineligible to receive unemployment benefits if he voluntarily leaves his employment without good cause. Whether a claimant has voluntarily left his employment is usually a question of fact for the Unemployment Insurance Appeal Board to decide. (Matter of Fisher [Levine], 36 NY2d 146, 150.) This is so where, as here, different inferences can be drawn from the evidence presented. In such cases, the appeal board’s decision concerning the voluntariness of a claimant’s separation from employment is conclusive upon the courts if supported by substantial evidence. (Matter of Fisher [Levine], supra, at p 150.)

In the case on appeal, claimant presented evidence showing that he vigorously disputed the charges filed against him and did not leave his job until ordered to do so by his employer. Even then claimant did not accept the 30-day suspension until he was advised by his union representative that if he pursued the matter further he could lose his job permanently. Faced with this unwelcome prospect, claimant decided to accept the suspension, rather than proceed further in accordance with his union’s grievance procedures or the procedures available under sections 75 and 76 of the Civil Service Law. Upon this record, we believe that the board’s determination that claimant did not voluntarily leave his job is supported by substantial evidence.

The Appellate Division, in reaching a different conclusion, erroneously relied upon Matter of Cahill (Ross) (77 AD2d 734). Unlike the case on appeal, the appeal board in Matter of Cahill (Ross) determined that the claimant had voluntarily resigned his employment. The Appellate Division, noting that claimant accepted “the concept that he resigned” (77 AD2d, at p 735), merely held that the board’s finding was supported by substantial evidence. Since substantial evidence supports the appeal board’s determination in this case as it did in Matter of Cahill (Ross) (supra), a reversal is required. (See, also, Matter of Guerin [Roberts], 88 AD2d 1018, mot for lv to app den 57 NY2d 604.)

With respect to the board’s finding that claimant was not guilty of misconduct for purposes of qualifying for unemployment benefits, an issue not reached by the Appellate Division, we note that evidence was presented at the hearing demonstrating that claimant kept a record of mileage he actually traveled. Additional evidence, which was not rebutted by the employer, showed that claimant began recording his actual mileage, as opposed to that registered on his vehicle’s odometer, only after he had reported the mileage discrepancies to his supervisor and was assured that the problem would be taken care of. We hold, therefore, that there is substantial evidence to support the board’s finding of no misconduct.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and the decision of the Unemployment Insurance Appeal Board reinstated in a memorandum.

       Since the appeal board, on remittitur, was merely required to perform the ministerial act of denying benefits to claimant, the order of the Appellate Division is final and subject to review by this court. (See Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 11, p 47.)


text:
    The People of the State of New York, Appellant, v Charles Farrell, Respondent.
    Decided May 3, 1983

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Charles E. Knapp of counsel), for appellant.

      Edith Blumberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Where, as here, there is evidence to support the determinations that there was an arrest and that there was no probable cause for the arrest, these mixed questions of law and fact are beyond the power of this court to review (see People v Harrison, 57 NY2d 470, 477; People v Wharton, 46 NY2d 924, 925).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed in a memorandum.


text:
    Cameron K. Wehringer, Appellant, v Helmsley-Spear, Inc., et al., Respondents.
    Decided May 3, 1983

      APPEARANCES OF COUNSEL

      Cameron K. Wehringer, appellant pro se.

      Richard G. Rosenbaum 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 [g]), order affirmed, with costs. Plaintiff has not stated a cause of action in either prima facie tort (see ATI, Inc. v Ruder & Finn, 42 NY2d 454) or intentional infliction of mental distress (Fischer v Maloney, 43 NY2d 553).

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


text:
    In the Matter of W. H. Morton & Company, Inc., Appellant, v New York State Tax Commission, Respondent.
    Decided May 3, 1983

      APPEARANCES OF COUNSEL

      Rebecca S. Rudnick for appellant.

      Robert Abrams, Attorney-General (Francis V. Dow 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 [g]), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (91 AD2d 1080).

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


text:
    Elmer Eddy et al., Appellants, v Tops Friendly Markets et al., Respondents.
    Decided May 3, 1983

      APPEARANCES OF COUNSEL

      Peter A. Vinolus for appellant.

      Paul I. Perlman for respondent.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 1203; see, also, Madrid v City of New York, 42 NY2d 1039; and 1 NY PJI2d 274-275).

We do not reach and have not considered appellant’s argument, raised for the first time before us, that notice is not an element of an action against a self-service supermarket with respect to a fall caused by material in the aisle (see Ann., 85 ALR3d 1000).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Randolph Todd, Appellant.
    Decided May 3, 1983

      APPEARANCES OF COUNSEL

      Edward H. Rosenthal for appellant.

      Denis Dillon, District Attorney (Douglas R. Noll and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

Defendant has been convicted after a jury trial upon information charging him with assault, third degree, in violation of subdivision 1 of section 120.00 of the Penal Law. The charges arose out of a dispute between defendant, a 28-year-old dental surgeon, and complainant, an 82-year-old man, in the parking area of a Manhasset shopping center. The altercation developed after complainant advised defendant he had parked in a restricted zone. Complainant’s version of the incident, supported by evidence in the record and accepted by the jury and a majority of the Appellate Term, was that after complainant spoke defendant approached him while he was sitting in his car. As complainant tried to exit, defendant smashed the door of the car against complainant’s foot; that after complainant succeeded in getting out of the car defendant struck him in the ribs and knocked him to the ground. Complainant testified that he sustained a concussion and laceration of the head, several severe and painful bruises and strains, and a severely bruised and swollen foot which he could not support weight on. The symptoms and pain continued three to five weeks (cf. Matter of Philip A., 49 NY2d 198, 200). Complainant was treated by two physicians who testified and generally confirmed his complaints and injuries.

Defendant’s version of the incident was substantially different and although his evidence would warrant a factual finding of harassment, we find no error in the court’s refusal to charge that crime as a lesser included offense (see People v Glover, 57 NY2d 61; People v Moyer, 27 NY2d 252).

The application for postjudgment relief is not properly before us for review.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed in a memorandum.


text:
    In the Matter of Christopher Menna, Appellant, v New York City Employees' Retirement System, Respondent.
    Decided May 3, 1983

      APPEARANCES OF COUNSEL

      William A. Zutt for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Ronald E. Sternberg 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 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 537).

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


text:
    In the Matter of Jerome Schussler, Appellant, v Michael J. Codd, as ex-Police Commissioner of the City of New York and as Past Executive Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.
    Decided May 3, 1983

      APPEARANCES OF COUNSEL

      Carol Mellor and Joseph Fallek for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Larry A. Sonnenshein 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 [g]), order affirmed, with costs. In the absence of evidence to support a finding of “accidental injury”, the Appellate Division correctly dismissed the petition (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N. Y., Art. II, 57 NY2d 1010).

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


text:
    In the Matter of Peter R. Cardone, Appellant, v Michael J. Codd, as ex-Police Commissioner of the City of New York and as Past Executive Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.
    Decided May 3, 1983

      APPEARANCES OF COUNSEL

      Carol Mellor and Joseph Fallek for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Aaron I. Blinder 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 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 909).

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


text:
    In the Matter of Eugene Valentin, on Behalf of Himself and All Other Sanitation Men Similarly Situated, et al., Appellants, v Board of Trustees of the New York City Employees' Retirement System et al., Respondents.
    Decided May 3, 1983

      APPEARANCES OF COUNSEL

      Morris Weissberg for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Irving Genn 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 . [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 916).

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


text:
    The People of the State of New York, Respondent, v Juan Cabral, Appellant.
    Decided May 3, 1983
   Appeal dismissed by the Court of Appeals sua sponte, upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).


text:
    Estelle Villano, Appellant, v Howard L. Ward et al., Respondents.
    Submitted April 18, 1983;
    decided May 3, 1983
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, upon the ground that it does not lie as of right from the unanimous Appellate Division order of affirmance.


text:
    The People of the State of New York, Appellant, v Dennis Martin, Respondent.
    Argued March 24, 1983;
    decided May 5, 1983

      APPEARANCES OF COUNSEL

      Michael Kavanagh, District Attorney (.Marsha Solomon of counsel), for appellant.

      Robert D. Cook for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Shortly after midnight on December 18, 1979, police arrested defendant as he fled from an auto supply store. He was charged with burglary in the third degree. At trial, the court denied defense counsel’s request that the jury be charged on the lesser included offense of criminal trespass in the third degree. The jury found defendant guilty of burglary. The Appellate Division reversed and ordered a new trial. Although the Appellate Division order stated that the reversal was based on the law and the facts, examination of that court’s decision indicates that the determination was based on the law alone.

Trespass in the third degree is a lesser included offense of burglary in the third degree (see People v Henderson, 41 NY2d 233, 235). Thus, the trespass count should have been charged if, under any reasonable view of the evidence, a jury could find that defendant committed the lesser offense but not the greater (see CPL 300.50, subds 1, 2; see, also, People v Scarborough, 49 NY2d 364; People v Johnson, 45 NY2d 546). In determining whether such a reasonable view exists, the evidence must be viewed in the light most favorable to defendant (see People v Shuman, 37 NY2d 302).

Defendant testified that he had been drinking steadily during the 12 hours before his arrest and did not remember being at the auto supply store. Several other defense witnesses testified to defendant’s intoxicated condition on the evening before his arrest and immediately after his arrest. The jury could have found that defendant knowingly entered or remained unlawfully in the building — and thereby committed trespass in the third degree — while also concluding that defendant was too drunk to form the specific intent to commit a crime in the building, a prerequisite to a conviction for burglary. Therefore, it was error to have refused to submit the lesser included offense, along with the greater crime, to the jury.

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

Order affirmed in a memorandum.


text:
    In the Matter of Morris M. Goldstein, Respondent, v Albert B. Lewis, as Superintendent of Insurance of the State of New York, Appellant.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (August L. Fietkau of counsel), for appellant.

      Michael E. Gorelick for respondent.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs. Subdivision 10 of section 119 of the Insurance Law creates no presumption. Petitioner’s license should, therefore, be revoked only if the superintendent finds that petitioner was in fact involved in the fraudulent scheme carried out by Levy and Adler and the record contains substantial evidence to support that finding. Here, there is no such evidence. The Appellate Division, therefore, properly annulled the determination of the Superintendent of Insurance that petitioner was untrustworthy to act as an insurance agent. (Insurance Law, §§ 117, 119.)

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, in a memorandum.


text:
    Madelyn Zupan, Appellant, v Julian Firestone, Respondent.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      Richard J. Wagner for appellant.

      Murray A. Gordon for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 Ob) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 561).

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


text:
    In the Matter of Pamela Marland, Respondent, v Gordon Ambach, as Commissioner of Education of the State of New York, Respondent, and Board of Education of the City School District of New York et al., Appellants.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Marvin R. Kwartler of counsel), for appellant.

      John G. Lipsett for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs, for the reasons stated in the opinion of Justice Ann T. Mikoll at the Appellate Division (79 AD2d 48).

We would only add that because there is sufficient evidence in the record to support the factual determination that petitioner’s retirement was involuntary, the issue is beyond our power to review. (CPLR 5501, subd [b]; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 108, pp 452-455; see, also, Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 5.) Additionally, with respect to the issue of back pay, contrary to respondents’ assertions, there is no rule prohibiting the courts from awarding back pay to a probationary teacher, such as petitioner, who has been denied contractual procedural rights affecting her ability to contest her discharge from employment. (See Ricca v Board of Educ., 47 NY2d 385, 394.) Under the circumstances present here, the award of back pay was proper.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of Sheila David, Respondent, v New York City Conciliation and Appeals Board, Appellant.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      Ellis S. Franke and Sharon K. Jablin for appellant.

      Marvin M. David for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the petition dismissed and the order of the Conciliation and Appeals Board reinstated.

The garage rental term to which the tenant objects is the same term that was included in the original lease. Since the landlord is only obligated to offer renewal “on the same conditions as the expiring lease” (Code of Rent Stabilization Association of New York City, Inc., § 60), the landlord’s inclusion in the lease of the garage clause presents no violation of the law.

The fact that the tenant preliminarily had the opportunity of renting or not renting the garage space and thus of including or not including the garage rental term in the original lease is irrelevant. The statute focuses on the terms actually in the lease and not those terms or options discussed or rejected during the initial negotiations.

Although the broad purpose of the Rent Stabilization Law is to protect the interests of tenants, the means adopted is stabilization or “freezing” of the terms of existing rental agreements. This affords a measure of protection to both parties by permitting the tenant to renew the lease on its original terms, with limited statutory adjustments, while protecting the landlord against the loss of the contractual rights for which it originally bargained. Under such a scheme, a tenant seeking the benefits of the statute may not pick and choose only those conditions which he or she continues to find convenient or advantageous.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, petition dismissed and order of the board reinstated in a memorandum.


text:
    American Bartenders School, Inc., Appellant, v 105 Madison Company, Respondent.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      Joseph Mandell and Emanuel Thebner for appellant.

      M. William Scherer for respondent.
   OPINION OF THE COURT

Memorandum.

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

The doctrine of equitable estoppel should not be applied in this case. The purpose of invoking the doctrine is to prevent the infliction of unconscionable injury and loss upon one who has relied on the promise of another (3 Williston, Contracts [3d ed], § 533A, at p 798; Imperator Realty Co. v Tull, 228 NY 447, 453). It cannot be said that an “unconscionable” injury to plaintiff has resulted from defendant’s refusal to execute the lease modification. Plaintiff’s allegation that defendant’s profit motive somehow renders its conduct inequitable would seem to be irrelevant, inasmuch as the concern is for whether defendant’s conduct has unjustly injured plaintiff. The circumstances set forth by plaintiff simply do not rise to a level of unconscionability warranting application of equitable estoppel (see Ginsberg v Fairfield-Noble Corp., 81 AD2d 318).

In addition, the doctrine of part performance is inapplicable, inasmuch as the performance is not “unequivocally referable” to the alleged oral agreement (e.g., Burns v McCormick, 233 NY 230).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Michael S. Smith, Appellant, v State of New York, Respondent.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      Jeremiah J. Moriarty III, for appellant.

      Robert Abrams, Attorney-General (Peter J. Dooley 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 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 1181).

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


text:
    John A. Tonello, as Administrator of the Estate of Louise R. Tonello, Deceased, Appellant, v Carborundum Company, Respondent.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      Frank P. Della Posta for appellant.

      Paul J. Suozzi 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 [g]), order affirmed, with costs. The Appellate Division correctly held that Special Term abused its discretion in denying defendant’s motion to dismiss pursuant to CPLR 3012 (subd [b]) (see, e.g., Barasch v Micucci, 49 NY2d 594).

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


text:
    William Campbell, Appellant, v Paul Maslin et al., Respondents, et al., Defendant.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      Lisa R. Strax for appellant.

      David 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 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (91 AD2d 559).

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


text:
    In the Matter of the Arbitration between Leon M. Waks et al., Respondents, and Frances Waugh, Appellant.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      Edward Nathan for appellant.

      Robert P. Stein 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 [g]), order affirmed, with costs, for the reasons, with respect to the issues raised, stated in the memorandum at the Appellate Division (91 AD2d 575). Arbitration of the dispute does not offend public policy because it arises from the settlement agreement executed by the parties rather than from the underlying dispute.

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


text:
    Geneseo Police Benevolent Association, Council 82, American Federation of State, County and Municipal Employees, AFL-CIO, Respondent, v Village of Geneseo, Appellant.
    Decided May 5, 1983

      APPEARANCES OF COUNSEL

      John P. MacArthur for appellant.

      Peter Henner and Christopher H. Gardner 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 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 858).

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


text:
    The People of the State of New York, Appellant, v Manuel Rowell, Respondent.
    Argued March 24, 1983;
    decided May 5, 1983

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney (Maryanne Luciano, Gerald D. Reilly and Anthony J. Servino of counsel), for appellant.

      Gilbert A. Holmes for respondent.
   OPINION OF THE COURT

Memorandum.

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

The People appeal from an order of the Appellate Division which reversed a judgment convicting defendant of sexual abuse in the first degree. The Appellate Division held that the trial court erred in receiving defendant’s inculpatory statements in evidence in violation of his right to counsel.

The charge arose from an incident occurring September 27, 1977 when defendant, a 19-year-old school bus driver, sexually molested a 10-year-old handicapped girl who was a passenger on the bus. When the New Rochelle police learned of the incident from the girl’s mother the next day, they contacted defendant through his employer, who was also his uncle, and asked him to come to the police station for questioning. He agreed to do so and brought his uncle with him. Defendant denied to the police that he had touched the girl and he left the station after only brief questioning. When further investigation created doubts about defendant’s denial, however, the police contacted his uncle on October 4 and requested that he bring defendant to the station again for further questioning. At this time, defendant admitted inaccuracies in his earlier statement but he continued to deny touching the victim and, at his uncle’s suggestion, defendant agreed to take a polygraph examination. The police attempted to make an appointment with the State Police for that purpose, but they were unable to do so. Finally, on October 10 Detective De Marco telephoned defendant to notify him that an examination had been scheduled for October 13. Defendant responded that he was “perfectly willing to take * * * the test” and added that he was going to Manhattan that day to meet his mother and then to see an attorney. He did not know where he was to meet the attorney nor did he mention the purpose of his visit.

On the morning of October 13 when Detective De Marco called defendant to arrange the trip to the State Police barracks in Somers, New York, he asked him about his visit to the attorney. Defendant answered that he had not seen an attorney and that he was still willing to take the test. De Marco then picked up defendant and drove him to Somers. During the course of the polygraph proceedings at the State Police barracks, defendant made the challenged inculpatory statements.

Defendant moved before trial to suppress these statements, alleging that his Fifth Amendment rights had been violated under the rule in Miranda v Arizona (384 US 436). Both Trial Term and the Appellate Division held otherwise. The Appellate Division reversed on the law, however, holding that defendant had been denied his constitutional right to counsel and citing People v Woodard (64 AD2d 517) and People v Skinner (52 NY2d 24). We find neither case dispositive of this appeal. Woodard involved custodial interrogation during which an Assistant District Attorney ignored defendant’s “clear and categoric” request for the assistance of counsel. Skinner involved noncustodial interrogation after the police were aware defendant had retained counsel. In this case, defendant was not subject to custodial interrogation nor had his right to counsel attached. Accordingly, the police were free to question him if he chose to talk to them.

We have held that once an individual in custody has expressed the need for counsel, evidence subsequently obtained from him by the police in the absence of counsel and without counsel’s consent will be excluded from use upon his trial (see People v Cunningham, 49 NY2d 203, 209-210; People v Hobson, 39 NY2d 479; see, also, People v Marrero, 51 NY2d 56, 59). This is so because such protection is necessary as a shield to protect the individual “against the awesome and sometimes coercive force of the State” (see People v Rogers, 48 NY2d 167, 173). By parity of reasoning, once a critical stage of the proceedings occurs, usually when the investigatory stage is over and the accusatory stage has started by the filing of formal charges, the right to counsel attaches whether defendant requests counsel or not. The police may not thereafter question him nor may he waive counsel without counsel’s presence (People v Settles, 46 NY2d 154).

In this case, defendant was free for two weeks while the police investigated this crime and he had competent adults, his uncle and apparently his mother also, with whom he could consult. He talked to the police on several occasions and saw no need for a lawyer. It was not enough to invoke his right to counsel under the circumstances that he suggested to the police that he might consult a lawyer (see People v Johnson, 55 NY2d 931; cf. People v Ellis, 58 NY2d 748). His statements were admissible unless he had retained counsel on the matter under investigation to the knowledge of the police (People v Skinner, 52 NY2d 24, supra) or had unequivocally informed the police of his intention to do so. Since he had done neither at the time his statements were obtained, they were admissible in evidence.

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

Order reversed and judgment of Westchester County Court reinstated in a memorandum.


text:
    Marcia Kreitman et al., Respondents, v Uzi Einy, Doing Business as Gal Realty, Appellant.
    Submitted April 18, 1983;
    decided May 5, 1983
   Motion, insofar as it seeks to dismiss the appeal, granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Insofar as it seeks vacatur, of a stay, motion denied.


text:
    In the Matter of Andrew Alban et al., Respondents, v County of Nassau, Appellant.
    Argued April 25, 1983;
    decided May 10, 1983

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (William S. Norden and Kathryn Driscoll Hopkins of counsel), for appellant.

      William Merritt for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Leon D. Lazer at the Appellate Division (89 AD2d 340).

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


text:
    Hudson View Properties, Appellant, v Julia M. Weiss et al., Respondents, and Robert Abrams, as Attorney-General of the State of New York, Intervenor-Respondent.
    Argued April 26, 1983;
    decided May 10, 1983

      APPEARANCES OF COUNSEL

      Gary M. Rosenberg, Warren A. Estis, Sherwin Belkin, Jay Zinnis and Robert A. Jacobs for appellant.

      Christopher A. Hansen for respondents.

      Robert Abrams, Attorney-General (Kim E. Greene, Peter H. Schiff, Deborah Bachrach and Jane Levine of counsel), intervenor-respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the landlord’s petition reinstated and the case remitted to Civil Court, City of New York, for further proceedings.

Petitioner landlord, in this holdover proceeding, seeks to evict respondent tenant from a rent-controlled apartment on the ground that tenant violated a substantial obligation of her tenancy by allowing a person not a tenant and not part of her “immediate family” to occupy the apartment with her.

Tenant contends that the landlord in seeking to enforce the restrictive covenant in the lease limiting occupancy to the tenant and members of tenant’s immediate family discriminates against her on the basis of marital status in violation of the State Human Rights Law (Executive Law, § 296, subd 5, par [a]) and the New York City Human Rights Law (Administrative Code of City of New York, § Bl-7.0, subd 5, par [a]).

We have recently addressed an analogous question: whether an employer’s antinepotism rule which forbids an employee from working under the supervision of a relative (including a spouse) violates section 296 of the Executive Law by discriminating on the basis of marital status. (Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506.) In that case, we held there was no statutory violation inasmuch as the disqualification of the employee under the company policy was not for being married (i.e., on the basis of her marital status), but for being married to her supervisor (i.e., on the basis of her relationship vis-á-vis a particular individual).

In this case, the issue arises not because the tenant is unmarried, but because the lease restricts occupancy of her apartment, as are all apartments in the building, to the tenant and the tenant’s immediate family. Tenant admits that an individual not part of her immediate family currently occupies the apartment as his primary residence. Whether or not he could by marriage or otherwise become a part of her immediate family is not an issue. The landlord reserved the right by virtue of the covenant in the lease to restrict the occupants and the tenant agreed to this restriction. Were the additional tenant a female unrelated to the tenant, the lease would be violated without reference to marriage. The fact that the additional tenant here involved is a man with whom the tenant has a loving relationship is simply irrelevant. The applicability of that restriction does not depend on her marital status.

Thus, we conclude that the landlord in this holdover proceeding has not discriminated against the tenant in violation of the State or city Human Rights Law.

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

Order reversed, etc.


text:
    Hilda Valenti et al., Respondents, v Cabrini Health Care Center, Also Known as Columbus Italian Hospital Division, Appellant, et al., Defendant.
    Decided May 10, 1983

      APPEARANCES OF COUNSEL

      Howard R. Cohen for appellant.

      Gregory Peck 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 [g]), order reversed, with costs, defendant’s motion for summary judgment granted, and question certified answered in the negative (see Barrett v Kasco Constr. Co., 56 NY2d 830; Strange v Montefiore Hosp. & Med. Center, 59 NY2d 737).

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


text:
    Mary Strange, Appellant, v Montefiore Hospital and Medical Center, Respondent.
    Decided May 10, 1983

      APPEARANCES OF COUNSEL

      Gregory Peck and Martin S. Rothman for appellant.

      Alexander J. Wulwick for respondent.
   OPINION OF THE COURT

Memorandum.

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

As we wrote in Barrett v Kasco Constr. Co. (56 NY2d 830, 831), procedurally indistinguishable from the case now before us, “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).” CPLR 5013 does not require that the prior judgment contain the precise words “on the merits” in order to be given res judicata effect; it suffices that it appears from the judgment that the dismissal was on the merits. Indeed, one would not expect to find any such explicit recital in a judgment of dismissal based on a grant of summary judgment for insufficiency of proof, as occurred here.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur; Judge Fuchsberg taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Marine Midland Bank, N. A., Plaintiff, v Edward T. Bowker, Defendant and Third-Party Plaintiff-Appellant. John F. Byrne, Doing Business as Jack Byrne Ford & Mercury, et al., Third-Party Defendants-Respondents.
    Argued April 26, 1983;
    decided May 10, 1983

      APPEARANCES OF COUNSEL

      Paul M. Whitaker for appellant.

      Karl H. Schrade for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in so much of the opinion by Justice Howard A. Levine at the Appellate Division as regards the subject matter jurisdiction of County Court (89 AD2d 194).

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


text:
    Cherie Appel, Appellant, v Charles Heinsohn, Inc., Doing Business as Lakeside Riding Academy, Respondent.
    Decided May 10, 1983

      APPEARANCES OF COUNSEL

      Edgar T. Schleider for appellant.

      Patrick J. Crowe 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 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 1029).

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


text:
    Harvey B. Taterka, Appellant, v Nationwide Mutual Insurance Company et al., Respondents.
    Decided May 10, 1983

      APPEARANCES OF COUNSEL

      Harold I. Meyerson for appellant.

      Robin Mary Heaney 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 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 568).

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


text:
    Joseph Nunes et al., Respondents-Appellants, v State of New York, Appellant-Respondent.
    Decided May 10, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Dennis Hurley of counsel), for appellant-respondent.

      Joseph C. Shapiro and Henry B. Whitbeck for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing so much of the order as modified the judgment of the Court of Claims and awarded claimant $45,150, and the case remitted to the Appellate Division for further proceedings in accordance with this memorandum, and, as so modified, affirmed. The cross appeal by claimants should be dismissed upon the grounds that the claimants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]) and the dissent at the Appellate Division is not on a question of law in favor of claimants (CPLR 5601, subd [a], par [i]).

The Court of Claims erroneously failed to give any consideration to evidence of damages contained in an appraisal used by the State to obtain Federal highway funding, known as the Pomeroy appraisal, which figure was received in evidence. The Court of Claims explained its initial failure to consider this evidence as oversight caused by the sealing of its offices and resultant loss of access to its files due to chemical contamination. Nevertheless, upon claimants’ motion to vacate that court’s decision or for a new trial, the court refused to consider the figure as evidence of value despite admitting its initial oversight. The court merely stated that in any event this estimate supported its earlier conclusion. The Appellate Division therefore properly denied the State’s motion to dismiss the claim and granted the cross motion to vacate the earlier decision of the Court of Claims.

However, the Appellate Division improperly awarded claimants $45,150. The Pomeroy appraisal was neither marked as an exhibit nor received in evidence. The value stated in it was received solely as an admission. Consideration of the appraisal by the Appellate Division thus constituted error (see Kirby v Mafox Realty Corp., 272 App Div 889) and the matter should be remitted to the Appellate Division for further proceedings.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified, with costs to the State of New York, and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed. Cross appeal by claimants dismissed, without costs, upon the grounds that claimants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]) and the dissent at the Appellate Division is not on a question of law in favor of claimants (CPLR 5601, subd [a], par [i]).


text:
    Edward Bailey, as Administrator of the Estate of Cora Bailey, Deceased, Appellant, v North Shore University Hospital, Defendant, and William Sherbany, Respondent.
    Decided May 10, 1983

      APPEARANCES OF COUNSEL

      Gregory Peck for appellant.

      Beth A. Banett 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 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (91 AD2d 967).

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


text:
    In the Matter of Martin B. Biener, Respondent, v Incorporated Village of Thomaston et al., Appellants.
    Decided May 10, 1983
   On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed, without costs, upon the ground that appellants are not parties aggrieved (CPLR 5511).


text:
    John F. Lopresto et al., as Preliminary Executors of Linda Martorano, Also Known as Valeria Martorano, Respondents, v Linda Brizzolara, Appellant.
    Submitted April 18, 1983;
    decided May 10, 1983
   On the court’s own motion, appeal dismissed, without oosts, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]). Motion for a stay dismissed as academic.


text:
    Katherine J. Mackie, Appellant, v La Salle Industries, Inc., et al., Respondents.
    Submitted April 18, 1983;
    decided May 10, 1983
   Motion to dismiss the appeal granted to the extent that the appeal as against defendant La Salle Industries, Inc., is dismissed, with costs and $20 costs of motion, upon the ground that the order of the Appellate Division insofar as it pertains to that defendant does not finally determine the action within the meaning of the Constitution; motion otherwise denied.


text:
    Luz M. Rodriguez, Individually and as Mother and Natural Guardian of Alberto Miranda, an Infant, Appellant-Respondent, v George P. Baker et al., as Trustees of the Penn Central Transportation Company, et al., Respondents-Appellants, and City of New York et al., Respondents.
    Submitted April 11, 1983;
    decided May 10, 1983
   Motion by plaintiff for leave to appeal denied, with $20 costs and necessary reproduction disbursements to respondent city. On the court’s own motion, appeal taken as of right by plaintiff dismissed, without costs, upon the ground that plaintiff is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    Paul D. Vadala et al., Appellants, v Randall Carroll, Respondent.
    Decided May 11, 1983

      APPEARANCES OF COUNSEL

      Craig P. Schlanger for appellant.

      Francis Maloney, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division’s determination that it was error to have set aside the verdict as against the weight of the evidence, although appealable, is beyond the scope of our review (Aiello v Garahan, 58 NY2d 1078; Mongelli Carting Co. v Nassau Ins. Co., 57 NY2d 649; Gutin v Mascali & Sons, 11 NY2d 97; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 148, p 588). Due to the posture in which this case comes before us, there must be an automatic affirmance (Goehle v Town of Smithtown, 55 NY2d 995; Rochester Tel. Corp. v Green Is. Constr. Corp., 51 NY2d 788; Pfohl v Wipperman, 34 NY2d 597).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur; Judge Fuchsberg taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Angelo Guarino, Jr., et al., Appellants, v Mohawk Containers Co., Inc., Respondent and Third-Party Plaintiff. New York Air Brake Co., Inc., Third-Party Defendant.
    Decided May 11, 1983

      APPEARANCES OF COUNSEL

      Albert A. Alteri for appellant.

      Donald P. Colella for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff has failed to set forth any facts or circumstances from which it could be found that his use of defendant’s product was foreseeable, and accordingly summary judgment was properly granted. Inasmuch as plaintiff had deposed one of defendant’s officers and in the 17 months available had not indicated a desire for further disclosure, that he now asserts that he had not completed discovery does not interdict the grant of summary judgment (Chemical Bank v PIC Motors Corp., 58 NY2d 1023).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Simons taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), . order affirmed, with costs, in a memorandum.


text:
    McCaskey, Davies and Associates, Inc., Appellant, v New York City Health & Hospitals Corporation, Respondent.
    Decided May 11, 1983

      APPEARANCES OF COUNSEL

      Joan M. Genchi and Frederic Block for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (William Barish of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing so much of it as granted defendant’s motion for summary judgment dismissing the complaint and by denying defendant’s motion for that relief, and, as so modified, affirmed.

Leave to amend the pleadings “shall be freely given” absent prejudice or surprise resulting directly from the delay (CPLR 3025, subd [b]; Fahey v County of Ontario, 44 NY2d 934, 935). Here the amendment sought to be pleaded was failure to comply with the contractual time limitation requiring commencement of action within six months of termination. There being nothing in the papers indicative of prejudice to or surprise of plaintiff, it was an abuse of discretion as a matter of law for Trial Term to deny defendant’s motion to amend its answer.

It was, however, error for the Appellate Division to grant defendant’s motion for summary judgment. Each party claimed the other had breached the contract; neither gave formal notice of termination. Whether the action was timely commenced turns, therefore, on whether in fact the contract was terminated and, if so, when. These questions present triable issues of fact barring summary judgment.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified, with costs to plaintiff, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Linda Ziehm, Appellant, et al., Petitioner, v City of Buffalo et al., Respondents.
    Decided May 11, 1983

      APPEARANCES OF COUNSEL

      Christopher J. Flynn for appellant.

      John J. Naples, Corporation Counsel (Paul McCarthy of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The respondent commissioner concluded (1) that petitioner either was a resident of Buffalo on January 1,1977, or else was willfully concealing her nonresidence and (2) that under section 4 of chapter 1 of the Buffalo City Ordinances, as modified by the labor agreement, either ground would sustain petitioner’s dismissal following her change of residence to Hamburg, New York, in 1979. There was substantial evidence in the record supporting either prong of the first conclusion and the testimony of the vice-president of petitioner’s union supplied a rational basis for the second.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Louise McCormick et al., Appellants, v David Axelrod, as Commissioner of New York State Department of Health, et al., Respondents.
    Submitted April 11, 1983;
    decided May 11, 1983
   On petitioners’ motion to hold respondents in contempt: The parties are directed to present evidence on the issues raised on the motion at a hearing before Honorable Joseph F. Gagliardi, who shall report thereon to this court on or before June 1, 1983. [See 58 NY2d 607, 972.]

Judge Meyer taking no part.


text:
    Howard P. Aronson et al., as Trustees Under the Last Will and Testament of Edward Satenstein, Deceased, Appellants, v Donald N. Riley, Individually and as Administrator of the Estate of Florence Chaloux, Deceased, Respondent.
    Argued April 25, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      JohnB. Sherman, Sheldon Bunin and Mark V. Olsen for appellants.

      Anthony Pasquantonio for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court denying defendant’s motion for summary judgment reinstated.

We conclude that the restrictive agreement between Edward Satenstein and the Chaloux’ is ambiguous and that it cannot be determined as a matter of law on examination of the agreement alone whether transfer by intestate succession did or did not fall within the proscription that “[n]either of the grantees shall transfer or convey said premises to any person or corporation without first offering to sell and reconvey the above described premises to the grantor, his heirs or legal representatives”. Use of the verb “transfer” expanded the connotation normally associated with the verb “convey”. Involuntary transfers during the lifetime of the Chaloux’ were expressly excluded from the proscription of the agreement; there was, however, no counterpart exclusion of involuntary transfers on death. Although express provision was made with respect to the first-refusal obligation during the lifetime of the Chaloux’ (when it was applicable) and after the death of the survivor of the Chaloux’ (when it was inapplicable), no explicit provision was made as to its application on the death of such survivor. The failure to make unmistakable provision with respect to this inescapably foreseeable contingency, as could so easily have been done, results in an ambiguity.

In view of our conclusion that the agreement is ambiguous, defendant’s motion for summary judgment should be denied inasmuch as plaintiff has tendered extrinsic evidence in admissible form sufficient to require a trial as to whether the parties intended by their agreement to accord to the grantor and his heirs the right to buy back the property on the death of the survivor of George and Florence Chaloux (see Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169, 172; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290-291).

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

Order reversed, with costs, and the order of Supreme Court, Westchester County, denying defendant’s motion for summary judgment reinstated in a memorandum.


text:
    Nicholas D'Angelo, Respondent, v Bob Hastings Oldsmobile, Inc., Appellant.
    Argued April 26, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Peter A. Harris and James S. Hinman for appellant.

      Neva S. Flaherty and James Montgomery Quinn for respondent.
   OPINION OF THE COURT

Memorandum.

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

The findings of fact made by the trial court with respect to plaintiff’s right to recover in his action for equitable rescission grounded in fraud, having been affirmed at the Appellate Division, may not be disturbed in our court, there being evidence in the record for their support, and such findings are sufficient as a matter of law to establish plaintiff’s right to recover in that action. With respect to defendant’s counterclaim for damages based on an alleged implied contract for storage, the determination of the Appellate Division that the proof was insufficient to establish such a contract more nearly comports with the weight of the evidence.

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

Order affirmed, with costs, in a memorandum.


text:
    Good Karma Productions, Appellant, v Penthouse International, Ltd., Respondent.
    Argued April 28, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Jack Rabin and Robert S. Powers for appellant.

      Jeffrey H. Daichman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (88 AD2d 561).

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


text:
    In the Matter of Derby Bock, Appellant, v Arthur Cooperman, as Chairman of Workers’ Compensation Board of State of New York, et al., Respondents.
    Submitted April 29, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Debby Bock, appellant pro se.

      Robert Abrams, Attorney-General (Howard Friedland, Peter H. Schiff and Henriette Frieder of counsel), respondent pro se, and for Arthur Cooperman and others, as members of the Workers’ Compensation Board of the State of New York, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (89 AD2d 539).

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


text:
    Patricia J. Battaglia, Appellant, v Philip S. Battaglia, Sr., Respondent.
    Argued April 28, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Peter K. Levine for appellant.

      Barbara S. Brenner for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and defendant’s motion to dismiss the action denied for the reasons stated in the dissenting memorandum by Justice Howard A. Levine at the Appellate Division (90 AD2d 930, 933-934).

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


text:
    Helen Shaw et al., Appellants, v City of Auburn, Respondent.
    Decided June 2, 1983

      APPEARANCES OF COUNSEL

      Lee S. Michaels for appellants.

      JohnJ. Pettigrass, Corporation Counsel {Earle E. Thurs-ton, Jr., 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 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 817).

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


text:
    The People of the State of New York, Respondent, v Benny Villani, Also Known as Benny De Llama, Appellant.
    Argued April 25, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Charles S. Desmond and Anthony V. Lombardino for appellant.

      Mario Merola, District Attorney (Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed, without prejudice, however, to an application by the People, if they be so advised, for leave to resubmit the charge of criminal usury in the second degree (People v Mayo, 48 NY2d 245, 253).

Defendant argues that he was denied due process because the prosecutor (1) concealed the fact that Ralph Porpora, an employee of defendant, had denied in testimony before the Grand Jury ever receiving from the complaining witness any money or envelope for transmittal to defendant, and (2) sought, unsuccessfully, to assist the complaining witness in efforts to obtain a small business loan and (3) because the denial of his motion for particulars of the one count indictment for criminal usury in the first degree deprived him of adequate notice and of a fair trial.

The first argument need not be considered in view of the conclusion hereafter reached that there must be a new trial. The second contention is without merit. Assistance by the prosecutor to a complaining witness may affect his credibility but does not render him incompetent to testify. Defendant’s objection to the question which would have informed the jury of the prosecutor’s offer and efforts to assist the complaining witness having kept that information from the jury, there has been no violation of defendant’s rights.

Defendant’s third contention is, however, well taken. The indictment was for first degree criminal usury, which differs from second degree in that “the actor’s conduct was part of a scheme or business of making or collecting usurious loans” (compare Penal Law, § 190.40, with Penal Law, § 190.42). Even if the indictment be deemed sufficiently to particularize the one loan made to Frank Starace which the People sought to prove at trial, defendant was entitled to particulars as to the “scheme or business” allegation in order to know what he would be called upon to defend against (People v Iannone, 45 NY2d 589). Somewhat disingenuously in view of the difference between defending a single usurious transaction and defending against the broader charge of loansharking, and of the prosecutor’s references to the broader charge though he had to be aware that it could not be proved, the People argue that defendant was not prejudiced because only the second degree offense was charged to the jury as a lesser included offense. The argument answers itself. No more availing is the People’s suggestion that defendant was not entitled to particulars because his motion did not allege that he could not “adequately prepare or conduct his defense without [such] information” (former CPL 200.90, subd 2; now CPL 200.95, subd 1, par [b]). No such argument was made in opposing the application, nor did the motion Judge deny the request for particulars on any such ground.

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

Order reversed and the indictment dismissed, without prejudice to an application by the People, if they be so advised, for leave to resubmit the charge of criminal usury in the second degree.


text:
    Steven C. Burns, Respondent, v 500 East 83rd Street Corp. et al., Defendants, and Sydelle Burns, Appellant.
    Argued April 25, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Jack B. Levitt for appellant.

      Jack S. Dweck and Harvey I. Sladkus for respondent.
   OPINION OF THE COURT

Memorandum.

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

At issue is who, between a husband, who alone signed the lease and pays the rent but does not reside in the apartment, and a wife, who is not a signatory of the lease and resides in the apartment pursuant to the provision of the lease permitting occupancy “only by Tenant and the members of the immediate family of Tenant,” is entitled under the Rent Stabilization Law (Administrative Code of City of New York, § YY51-6.0, subd c, former par [9], cl [b]) to purchase the shares allocated to the apartment under the plan for conversion to co-operative ownership. Under subdivision 5 of section 61 of the Code of the Rent Stabilization Association of New York City, Inc., that right belongs to “tenants in occupancy and lessees of record of vacant or subleased apartments at the time of the offering.”

We agree with the courts below that plaintiff husband as the signer of the lease is the tepant and that occupancy by his wife and children as permitted by the lease is occupancy by the tenant-husband even though he is not, himself, physically present. That conclusion is consistent with the code provision protecting the right of a lessee of record to purchase even though he has subleased and his sublessee is in actual possession, for the position of the wife is essentially no different as respects her husband than that of a subtenant as respects the lessee of record.

Neither Cooper v 140 East Assoc. (27 NY2d 115) nor Ian v Wassberg (55 NY2d 706) is to the contrary. Cooper concerned rent-controlled premises the right to purchase which was governed by regulations defining “tenant” to include a “subtenant” and “sublessee” (27 NY2d, at p 118) and Wassberg was at pains to make clear that the “paramount right to occupy” arose “under the circumstances of this case” — that is, where the person in occupancy had been put in possession by the landlord in violation of the rights of a prior lessee.

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

Order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Julius Bryant, Appellant.
    Argued April 27, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Miriam J. Hibel and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Admissibility of the defendant’s postarrest statement involves not the right to counsel but the protection against self incrimination. All of the spontaneity holdings relied upon by defendant, including that in People v Carmine A. (53 NY2d 816), concerned situations in which suppression turned on the right to counsel, not the right to preinterrogation warnings. Spontaneity in the latter context turns on whether a statement made by defendant was the product of “express questioning or its functional equivalent” (Rhode Island v Innis, 446 US 291, 300-301). The hearing Judge having found that the defendant’s postarrest statement was not in response to any question by the officers and the Appellate Division having held that the statement was not produced by the functional equivalent of interrogation, we may not overturn those rulings, absent error of law, not here present.

The claimed errors in admission of evidence are either unpreserved or harmless and, although the better practice would have been to give the limiting instruction requested by defendant’s attorney that in evaluating the testimony of the alibi witness the jury should not consider that she was on welfare or had borne children out of wedlock, the failure to do so furnishes no ground for reversal in light of the extended instruction on credibility given by the court and the absence of any comment by the prosecutor in summation on either fact as affecting the credibility of the witness.

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

Order affirmed in a memorandum.


text:
    Frank Dzurenko, Appellant, v Jordache, Inc., et al., Respondents, et al., Defendants.
    Submitted April 28, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Mark S. Gallagher for appellant.

      Robert A. Spiegelman and Steven M. Gerber for Jordache Enterprises, Inc., respondent.

      Murray L. Skala and Toby M. Schaffer for H.P.&E., Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing so much thereof as affirmed dismissal of the first, third and fourth causes of action and reinstating those causes of action and, as so modified, should be affirmed, with costs to plaintiff. The question certified is answered in the negative.

As we recently held in Shields v Gross (58 NY2d 338, 347), “a defendant’s immunity from a claim for invasion of privacy is no broader than the consent executed to him.” Whether the limitation in the consent is as to time, form or forum, the use of a name, portrait or picture is without consent if it exceeds the limitation.

Nor is it material, as defendants argue, that the limitation was plaintiff’s unilateral act and was put on the consent form after the photographs were taken. Section 51 of the Civil Rights Law requires “the written consent” of such person and, absent facts, not here pleaded, upon which an estoppel could be grounded, the fact that the consent was signed after, rather than before, the photographic session, imposed no limitation upon the absolute right granted plaintiff by the statute to limit his consent in any way he deemed proper or desirable. For a use beyond the granted consent he has an action under section 51 and is not limited to an action sounding in contract.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to plaintiff. Question certified answered in the negative.


text:
    Linda G. Brennan et al., as Coadministratrices of the Estate of Leo J. Brennan, Jr., Deceased, et al., Appellants, v City of New York et al., Respondents.
    Argued April 29, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      David G. Commender for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis and Carolyn E. Demarest of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The New York City Health and Hospitals Corporation (NYCHHC) is a public benefit corporation, independent of the City of New York (L 1969, ch 1016, § 1 [New York City Health and Hospitals Corporation Act, § 4, subd 1]; Bender v New York City Health & Hosps. Corp., 38 NY2d 662). That it is denominated an “agency” of the city for purposes of section 50-k of the General Municipal Law, thus entitling its officers and employees to legal representation and indemnification at the expense of the corporation for acts performed within the scope of duty, does not change the status of NYCHHC. To the contrary, that provision reinforces the conclusion that for purposes other than representation and indemnification NYCHHC is not an agency of the city.

The action for the death of plaintiffs’ decedent was, therefore, required to be commenced within one year and 90 days after April 3,1979, the date of his death. Section 20 of the New York City Health and Hospitals Corporation Act being the provision specifically applicable to an action against NYCHHC, the two-year general limitation period for wrongful death actions established by EPTL 5-4.1 is inapplicable, as also (assuming without deciding that it applies to an action accruing before its effective date) is the two-year provision of section 50-i of the General Municipal Law, as amended by chapter 738 of the Laws of 1981.

Notice of claim for plaintiffs’ decedent’s death was likewise required to be filed within 90 days after death, except as subdivision 5 of section 50-e of the General Municipal Law may have permitted extension of that period by court order. Subdivision 5, however, explicitly provides that “The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation” — in NYCHHC’s case, one year and 90 days.

To argue as to plaintiffs that because accrual of the cause of action is used in section 20 as the time from which both filing of the notice of claim and commencement of the action is measured, and because under section 50-e of the General Municipal Law filing of a notice of claim within 90 days after appointment of a representative has been held permissible, the time for commencement of the action runs from appointment of a representative but, because of EPTL 5-4.1, cannot extend beyond two years after date of death, is to invert the legislative intent. More logical is it to conclude that the Legislature intended the period of limitations as to NYCHHC to be one year and 90 days as it had explicitly provided (cf. Erickson v Town of Henderson, 30 AD2d 282, 285), and that the notice of claim be filéd within 90 days of death, except as cases such as Erickson and Joseph v McVeigh (285 App Div 386, affd 309 NY 877) ameliorated the notice of claim requirement for a personal representative not appointed in time to comply. Supportive of the conclusion reached is the absence from section 20 of any reference to EPTL 5-4.1, of which the Legislature, of course, was aware. Had it intended its two-year limitation period to furnish the cutoff date, it could have accomplished that end by a simple cross reference to the latter section.

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

Order affirmed, with costs, in a memorandum.

       Effective September 1,1981, chapter 738 of the Laws of 1981 amended section 50-e (subd 1, par [a]) to authorize filing as of right of a notice of claim within 90 days after appointment of a representative of decedent’s estate.


text:
    The People of the State of New York, Respondent, v Maurice Patterson, Appellant.
    Argued May 2, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Stewart E. Sterk for appellant.

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

Order affirmed for the reasons stated in the memorandum of the Appellate Division (88 AD2d 694), to which we add only that, in view of his ruling limiting use of the 1979 rape conviction, it cannot be said that, as in People v Williams (56 NY2d 236), the Trial Judge failed to exercise discretion.

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


text:
    Morgan Services, Inc., Respondent, v Lavan Corporation, c/o Hotel Lafayette, Appellant.
    Argued May 2, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Lawrence A. Schulz for appellant.

      Gerard J. O’Brien for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reducing the total damages awarded to $23,092.06 and, as so modified, should be affirmed, with costs to plaintiff.

The Appellate Division having affirmed the Trial Judge’s findings that both contracts were breached by defendant, that issue is beyond our review. On the principle of Truck Rent-A-Center v Puritan Farms 2nd (41 NY2d 420) we agree with the conclusion of both courts below that the provision for liquidated damages in the rental contract bore a reasonable relation to the amount of probable actual harm for breach of that contract, there being uncertainty concerning the re-rental or sale value of the uniforms supplied by plaintiff under the contract. The parties agreed that the correct damage figure on this contract is $2,971.19.

As to the laundry contract, the Trial Judge made no award, finding that plaintiff incurred no expense and was not entitled to liquidated damages. The Appellate Division concluded that the liquidated damage clause was legal and proper and we agree, the damages being unpredictable in view of the labor and capital costs that the contract involved and the uncertainty that after a contract breach they would be fully utilized during the remainder of the contract term. On this contract, the Appellate Division adopted the amount, $20,120.87, mistakenly fixed by the Trial Judge as the damages for the rental contract. We find the weight of the evidence to support the method of calculation used by the Appellate Division.

Accordingly, plaintiff is entitled to total damages of $23,092.06.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to plaintiff.


text:
    In the Matter of the Estate of Nathan Agar, Deceased. Emily R. Craig, Respondent; Robert A. Agar et al., Appellants.
    Argued April 26, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Solomon R. Agar for appellants.

      Martin I. Kaminsky, Kenneth A. Zitter and John Halebian for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (88 AD2d 882), with costs payable out of the estate to all parties appearing separately and filing separate briefs.

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


text:
    Francis E. Sutton, Individually and as Administrator of the Estate of Marianne Sutton, Deceased, Appellant, v Piasecki Trucking, Inc., et al., Respondents, et al., Defendant. (And Another Action.)
    Argued April 27, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Duncan W. Clark for appellant.

      Judith Almgren Ferry for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff’s intestate, Marianne Sutton, was killed when her automobile was struck by a tractor trailer owned by defendant Piasecki Trucking, Inc., and driven by its employee, defendant Kerstanski. The accident occurred in the early afternoon of February 3, 1977 when the Sutton vehicle, proceeding southerly on Lakes Road in the Town of Blooming Grove, apparently passed through a stop sign controlling its travel and turned left into the path of the truck operated by defendant Kerstanski which was proceeding westerly on New York State Route 94. After trial, the jury found a verdict in plaintiff’s favor and apportioned fault for causing the accident 99% to the operator of the Sutton vehicle and 1% to defendant Kerstanski. On motion by plaintiff, the trial court set aside the verdict and ordered a new trial. The Appellate Division reversed, denied plaintiff’s motion and reinstated the verdict. On this appeal plaintiff contends that the trial court’s instructions to the jury were erroneous in several respects..

It appears from the evidence that immediately before impact plaintiff’s intestate had driven her vehicle from Lakes Road into the westbound lane of Route 94 in an attempt to turn left and proceed easterly. As she did so, defendant Kerstanski veered his truck to the left across the center line to avoid impact and the right front of the truck struck the center of the Sutton vehicle somewhere near the center of Route 94. It does not appear from the evidence that the Sutton vehicle ever crossed the center line or turned fully to proceed east on the highway. Accordingly, we find no error in the court’s refusal to charge subdivision (a) of section 1120 and section 1121 of the Vehicle and Traffic Law which required defendant driver to operate his vehicle in the right-hand lane of travel. His failure to do so in this emergent situation, if not excused, could not have been a proximate cause of the accident which occurred.

Moreover, we find no error in the court charging, pursuant to section 1172 of the Vehicle and Traffic Law, that plaintiff’s intestate was obliged to bring her vehicle to a stop when she approached the stop sign controlling southbound traffic on Lakes Road. While there was no direct evidence that plaintiff’s intestate failed to stop at the sign, there was substantial circumstantial evidence from which the jury could infer that she had failed to do so and defendants were entitled to a charge upon the statutory responsibilities imposed upon her at the time.

Plaintiff also urges that the trial court’s failure to marshal the evidence was reversible error in this case. The error, if such it was, was not preserved for our review by timely exception (CPLR 4110-b).

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

Order affirmed, with costs, in a memorandum.


text:
    Corrado Borgia, as Administrator of the Estate of Rosario Borgia, et al., Appellants, v Interboro General Hospital, Defendant, and Umberto De Girolamo et al., Respondents.
    Argued April 29, 1983;
    decided June 2, 1983

      APPEARANCES OF COUNSEL

      Douglas E. McKeon and John J. Tullman for appellants.

      Frederick N. Gaffney and Henry M. Primavera for respondents.
   OPINION OF THE COURT

Memorandum.

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

While a disabling illness may excuse an attorney’s delay in serving a complaint, in this case the default occurred well after the illness and therefore the default was not excused. Accordingly, the Appellate Division did not abuse its discretion in granting defendants’ motion to dismiss the complaint.

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

Order affirmed, with costs, in a memorandum.