text:
    Edward Austro et al., Plaintiffs, v Niagara Mohawk Power Corporation, Defendant and Third-Party Plaintiff-Appellant. Weber Construction Company, Inc., et al., ThirdParty Defendants-Respondents, et al., Third-Party Defendants. (And a Fourth-Party Action.)
    Argued September 10, 1985;
    decided October 10, 1985

      APPEARANCES OF COUNSEL

      Howard S. Rosenhoch and Lawrence H Wagner for appellant.

      Edward F. Layden for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and judgment granted to Niagara Mohawk Power Co. (NiMo) on its third-party complaint against third-party defendants Weber Construction Co., Inc., and Kenneth Begin.

The Appellate Division affirmed the dismissal, following trial, of NiMo’s third-party complaint insofar as it demanded indemnification from Weber for liability arising out of NiMo’s gross negligence. The demand was based on an agreement by Weber to indemnify NiMo for any liability caused by the latter’s negligence resulting, in whole or in part, in bodily injury arising out of work performed by Weber under a construction contract. The Appellate Division relied on this court’s pronouncements, in Gross v Sweet (49 NY2d 102) and Kalisch-Jarcho, Inc. v City of New York (58 NY2d 377), that exculpatory agreements will not be read to exempt a willful or grossly negligent party from liability to an injured person. The Appellate Division, however, failed to distinguish between the exculpatory clauses involved in those cases, which typically deprive a contracting party of the right to recover for damages suffered as the result of the exonerated party’s tortious act, and indemnity contracts that simply shift the source of compensation without restricting the injured party’s ability to recover. Indemnification agreements are unenforceable as violative of public policy only to the extent that they purport to indemnify a party for damages flowing from the intentional causation of injury (Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 400). Because there is no allegation of intentional harm in this case, NiMo should have been granted judgment against Weber and Begin for the full amount of its liability to plaintiff Austro. In view of our holding, we need not decide whether the evidence was legally sufficient to support the jury’s finding of gross negligence against NiMo.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Jasen taking no part.

Order reversed, with costs, and judgment granted to Niagara Mohawk Power Corporation in accordance with the memorandum herein.


source: Caselaw Access Project

license: Public Domain

text:
    Kenneth H. Loughry, Respondent-Appellant, v Lincoln First Bank, N. A., Defendant, and Robert Lee et al., Appellants-Respondents.
    Submitted July 22, 1985;
    decided October 10, 1985
   Motion by defendants Lee and Dovidio for leave to appeal denied.

Cross motion by plaintiff for leave to appeal as to the reduction of the verdict in his favor dismissed upon the ground that he is not aggrieved by the reduction which he stipulated to accept (Dudley v Perkins, 235 NY 448, 457).


text:
    In the Matter of Almon L. Wait.
    Decided October 15, 1985
   OPINION OF THE COURT

On consideration of continuation of this court’s September 10, 1985 suspension, with pay, of Honorable Almon L. Wait from his office of Justice of the Waverly Town Court, Franklin County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct, it is determined that the suspension continue, with pay, pending disposition of that request for review.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone. Taking no part: Judge Simons.


text:
    Walter Handlin et al., Plaintiffs, and Peter Mataxes, Appellant, v V. Renato Burkhart et al., Respondents.
    Decided October 15, 1985

      APPEARANCES OF COUNSEL

      John Jaye Markos for appellant.

      William M. Pinzler for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order dated May 21, 1984, insofar as it dismissed the complaint as to plaintiff Mataxes, affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 850).

Appeal from the order dated August 22, 1984 dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of the Estate of Jacob L. Greatsinger, Deceased. Walter G. Farrell et al., Respondents; John J. Jennings et al., Appellants.
    Decided October 15, 1985

      APPEARANCES OF COUNSEL

      Donald H. Tuttle and John J. Jennings, appellants pro se.

      Joseph C. Buck for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order of the Appellate Division appealed from and prior order of the Appellate Division brought up for review affirmed, without costs. It was not an abuse of discretion as a matter of law for the Appellate Division in its first order remitting to the Surrogate’s Court, to direct the allowance of counsel fees— without further specification.

The appeal, insofar as it seeks review of the second order of the Appellate Division affirming so much of the order of the Surrogate’s Court of Chemung County as made the allowance payable out of the remainder of the estate, does not lie as of right. The appeal, pursuant to CPLR 5601 (d) brings up for review only the prior nonfinal determination of the Appellate Division (CPLR 5501 [b]; see, Gilroy v American Broadcasting Co., 46 NY2d 580). Accordingly, the appeal insofar as it seeks review of the second Appellate Division order must be dismissed, without costs and without prejudice to a motion for leave to appeal from that order (see, CPLR 5514 [a]).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of the Claim of Robert Everett, Claimant, v A. S. Steel Rule Die Corp. et al., Respondents. Workers’ Compensation Board, Appellant.
    Decided October 15, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (.Robert Hermann, Carlin Meyer and Theresa E. Wolinski of counsel), for appellant.

      Leonard J. Linden, II, for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the opinion by Justice John T. Casey at the Appellate Division (106 AD2d 181).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of the State Division of Human Rights, on Complaint of Deborah E. Greene, Respondent, v St. Elizabeth's Hospital, Appellant.
    Decided October 15, 1985

      APPEARANCES OF COUNSEL

      J. Leo Coupe for appellant.

      Margarita Rosa and Sara Toll East for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, and the matter remitted to that court with directions to remand to respondent for further proceedings in accordance with this memorandum and, except as so modified, affirmed.

In a proceeding before respondent pursuant to the Human Rights Law (Executive Law art 15), the following facts were found. On July 13, 1976, Deborah E. Greene, a black woman, came to the emergency room of appellant hospital, where she was examined and treated for back pain by Louis M. Mascitelli. Mascitelli gave her a note describing her disability and excusing her from work, and a second note when she returned with the same condition a week later. On July 26, Greene returned, complaining of continuing pain, but Mascitelli refused her request for a third note, stating he could find no medical basis for her complaint. Under hospital policy, when a patient continued to complain of pain for more than two weeks, the emergency room doctor was to refer the patient to a specialist. While Mascitelli was writing a note, Greene asked what he was writing, whereupon he tore up the note, took her medical chart, began leaving the room, and ordered her out of the hospital giving her no referral. The patient and doctor then began to quarrel. Mascitelli accused her of being "lazy and shiftless,” said that he had dealt with her "kind” in East Harlem, and that she expected special treatment because she was black. After a heated discussion in the hallway among Greene, her companion, the doctor and a security guard summoned to the scene by the emergency room nurse, Greene left the hospital.

By order dated January 13, 1982, respondent found that both Mascitelli and the appellant hospital wrongfully withheld accommodations, advantages, facilities or privileges of a place of public accommodation on the basis of race and color. Both were ordered to cease and desist from such practice, to pay Greene $1,000 in damages, and appellant hospital additionally was ordered to notify its managers, supervisors, officers and employees that it does not discriminate on the basis of race and color of a patient. As to Mascitelli, respondent found after a hearing that, despite his denial, his words "had the clear ring of racial epithet and were so apprehended by Complainant.” As to appellant hospital, the determination rested on the bare fact that as Mascitelli’s employer, it "is responsible as the principal, having put Mascitelli in the position of providing or not providing its services.” The Human Rights Appeal Board affirmed the determination on the ground that it was supported by substantial evidence on the record taken as a whole. The Appellate Division, in a proceeding to review pursuant to Executive Law § 298, confirmed this determination, stating only that the delay in the proceeding was not so egregious as to constitute prejudice as a matter of law (Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816, 818). While agreeing with the conclusion of the Appellate Division regarding timeliness of the proceeding, we hold that appellant was erroneously found liable for Mascitelli’s conduct based solely on the employment relationship.

An "employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it.” (Matter of Totem Taxi v State Human Rights Appeal Bd., 65 NY2d 300, 305.) Here, respondent erroneously grounded appellant’s liability upon the simple fact that it employed the offending doctor, without any finding that the hospital itself in any way encouraged, condoned or approved his illegal acts. In support of affirmance, respondent now urges that, unlike the employer in Totem Taxi, here the hospital adopted no antidiscrimination policy, made no apology to Greene, and took no action against Mascitelli, thus tacitly condoning Mascitelli’s illegal conduct (see, Matter of General Motors Corp. v State Human Rights Appeal Bd., 78 AD2d 1006, affd 54 NY2d 905; Matter of State Univ. of N. Y. v State Human Rights Appeal Bd., 81 AD2d 688, affd 55 NY2d 896). Condonation, which may sufficiently implicate an employer in the discriminatory acts of its employee to constitute a basis for employer liability under the Human Rights Law, contemplates a knowing, after-the-fact forgiveness or acceptance of an offense. An employer’s calculated inaction in response to discriminatory conduct may, as readily as affirmative conduct, indicate condonation. Appellant urges, however, both that it lacked the knowledge fundamental to a showing of condonation, and that had condonation been indicated as a basis for liability at the time a record was made, it would have introduced evidence of its own reasonable measures taken to investigate the incident.

While the order below, given its basis, was erroneous, no findings were made by respondent to support the alternative ground for affirmance now urged upon us. We therefore modify the Appellate Division order so as to remand the matter to respondent for further findings, including further proceedings if deemed appropriate, relating to the issue of condonation.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur in memorandum; Judge Simons taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, etc.


text:
    The People of the State of New York, Respondent, v Paul Roth, Appellant.
    Argued September 6, 1985;
    decided October 15, 1985

      APPEARANCES OF COUNSEL

      Stephen R. Coffey and Salvatore D. Ferlazzo for appellant.

      Sol Greenberg, District Attorney (John P. M. Wappett and llene R. Bergman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress granted and the indictment dismissed.

The evidence adduced at the suppression hearing supports the affirmed finding that the police officer’s conduct in frisking defendant was based on a reasonable fear that defendant may have been armed (see, People v Davis, 64 NY2d 1143; People v Klass, 55 NY2d 821). Nonetheless, defendant’s motion to suppress the papers removed from his jacket pocket, which upon inspection turned out to be gambling records, should have been granted. Once any reasonable basis for the officer’s fear for his safety had abated, he was not justified in seizing the papers, which were folded over and secured with a rubber band, and causing the packet to be unwrapped and examined (cf. People v McGriff, 99 AD2d 818).

No claim is made, nor indeed could any claim be made under the circumstances of this case, that the seizure of the personal papers was incident to a lawful custodial arrest (United States v Robinson, 414 US 218). Rather, the People seek to justify the seizure under the "plain view” and "inevitable discovery” exceptions to the warrant requirement (US Const 4th Amend).

The "plain view” exception is inapplicable. The discovery was not "inadvertent rather than anticipated” (People v Basilicato, 64 NY2d 103, 115; People v Spinelli, 35 NY2d 77, 81) because the papers were "discovered” as a result of the officer’s opening the bundled papers, properly taken from defendant during a frisk, although it was not immediately apparent that the papers seized were evidence of criminality (see, Coolidge v New Hampshire, 403 US 443, 446-447; People v Milaski, 62 NY2d 147, 154, n 1). The record is devoid of evidence that the officer knew that the papers were gambling records or that, by their outward appearance, they were readily identifiable as such (see, Walter v United States, 447 US 649, 653; Stanley v Georgia, 394 US 557, 559).

The "inevitable discovery” exception likewise is inapplicable to the facts of this case. The officer permitted defendant to "remove his personal property” after indicating that the vehicle was being impounded. Thus, the papers would not have been in the car during the inventory search.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

Order reversed, etc.


text:
    In the Matter of the Estate of Rose B. Kumstar, Deceased. Peter H. Harp, Appellant; Henry Bruckert, Respondent.
    Decided October 15, 1985
    APPEARANCES OF COUNSEL

      Wendell D. Harp for appellant.

      Charles A. Judelson and John M. Clancy for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to Surrogate’s Court for entry of a decree granting the petition for probate.

It is the indisputable rule in a will contest that "[t]he proponent has the burden of proving that the testator possessed testamentary capacity and the court must look to the following factors: (1) whether she understood the nature and consequences of executing a will; (2) whether she knew the nature and extent of the property she was disposing of; and (3) whether she knew those who would be considered the natural objects of her bounty and her relations with them” (Matter of Slade, 106 AD2d 914, 915; see also, Matter of Delmar, 243 NY 7). When there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, the issue of capacity is one for the jury (Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 3-1.1, p 275).

Here, there was insufficient evidence adduced at trial to warrant submitting that issue to the jury. The subscribing witnesses and those who were close to decedent when the will was drafted each testified that decedent was alert and capable of understanding the nature of her actions. Decedent’s treating physician testified that it was his opinion, based on a reasonable degree of medical certainty, that decedent was competent when she signed the will. By contrast, a physician called by the objectant who reviewed decedent’s medical records was unable to state with a degree of medical certainty that decedent was incompetent at the time in question. That the will contained a bequest to a "brother”, long since deceased, "in Cuba, Cattaraugus County, New York” does not raise a question of decedent’s competence in light of her attorney’s testimony that, without knowing of the brother’s death, he had assumed that the person referred to was decedent’s brother and the fact that decedent’s nephew, who along with his two sisters were the sole heirs, bore the same name as decedent’s brother and resided in Cuba, Cattaraugus County. Also without significance are the bequests establishing trust funds in relatively small amounts and the omission of a specific devise of certain land to a historical site, contrary to a wish mentioned on several occasions by decedent.

It was likewise error to submit the question of undue influence to the jury. That the willdrafter stood to benefit by being named trustee of the estate and that he possessed an "opinionated and domineering personality”, as indicated by his propensity to write "letters to the editor”, is of no import. There is no evidence that decedent’s attorney exercised a " 'moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against h[cr] free will’ ” (Matter of Walther, 6 NY2d 49, 53, quoting Children’s Aid Socy. v Loveridge, 70 NY 387, 394).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur; Judge Titone taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs payable out of the estate to all parties appearing separately and filing separate briefs, and matter remitted to Surrogate’s Court, Orange County, for entry of a decree granting the petition for probate, in a memorandum.


text:
    The People of the State of New York, Respondent, v Philip Ventura, Appellant.
    Decided October 15, 1985

      APPEARANCES OF COUNSEL

      Lawrence H. Leaner for appellant.

      Robert Abrams, Attorney-General (Joseph J. Hester of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, a New York City Police Officer, was convicted of criminal possession of stolen property and official misconduct. At trial, defense counsel declined to introduce evidence on entrapment, apparently fearing that the People would have been permitted to counter with evidence of defendant’s predisposition. After resting, however, counsel indicated that he would raise entrapment, but did not seek to reopen and delivered a summation which did not refer to entrapment. Subsequently, counsel requested permission to reopen his summation and requested a charge on entrapment. The application was denied, but, after rendition of the verdict, the trial court granted defendant’s motion to set aside the verdict (CPL 330.30 [1]), stating "I think I should have let him reopen his summation * * *. I think I made a mistake.”

The Appellate Division reversed the order and reinstated the verdict. Taking language from People v Carter (63 NY2d 530) out of context, the court reasoned that a CPL 330.30 motion may not be granted if evidence of a defendant’s guilt is legally sufficient. Although we reject that analysis, the result reached by the Appellate Division is correct, and its order should be affirmed.

CPL 330.30 (1) authorizes a trial court to set aside a verdict if a ground appears in the record "which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.” In People v Carter (63 NY2d 530, supra), we held that the section precluded a trial judge from reweighing evidence, a factual review (see, CPL 470.15 [5]), and, after finding the evidence legally sufficient, a question of law (see, CPL 470.15 [4] [b]), we reinstated the verdict (see also, People v Colon, 65 NY2d 888; People v Goodfriend, 64 NY2d 695). In no respect did we imply that a CPL 330.30 (1) motion must be denied, irrespective of the ground upon which it is made, if evidence of defendant’s guilt is legally sufficient.

There was, however, no error of law warranting the vacatur of the jury verdict (see, People v Collins, 72 AD2d 431, 437). In light of defendant’s stated disavowal of, and failure to present evidence relevant to, an entrapment defense, Criminal Term’s refusal to allow counsel to reopen his summation and its denial of his request to charge entrapment were eminently correct (see, People v Mapp, 47 NY2d 939; People v Seale, 47 NY2d 923). Certainly, there was no abuse of discretion constituting error of law (Cohen and Karger, Powers of the New York Court of Appeals § 158 [rev ed]).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

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


text:
    In the Matter of the Estate of Erastus Corning, II, Deceased. Aurora, Inc., et al., Respondents-Appellants; Elizabeth P. Corning, Individually and as Executrix of Erastus Corning, II, Deceased, et al., Intervenors-Appellants-Respondents.
    Decided October 15, 1985
   Appeals by executrix and by the intervenors dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order insofar as appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judge Simons taking no part.


text:
    In the Matter of Harry Heller, Respondent-Appellant, v Roderick G. W. Chu et al., Constituting the State Tax Commission, Appellants-Respondents.
    Submitted August 26, 1985;
    decided October 15, 1985
   Motion to dismiss petitioner’s cross appeal granted and the cross appeal dismissed, with costs and $20 costs of motion, upon the ground that petitioner is not a party aggrieved.

Judge Simons taking no part.


text:
    In the Matter of the Application of Mialto Realty, Inc., Respondent, v Town of Patterson et al., Appellants.
    Submitted September 23, 1985;
    decided October 15, 1985
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not the type of nonfinal order which comes within the meaning of CPLR 5602 (a) (2).

Judge Simons taking no part.


text:
    Municipal Housing Authority for the City of Yonkers, Respondent, v New York State Emergency Financial Control Board for the City of Yonkers, Appellant.
    Decided October 15, 1985
   Appeal transferred to the Appellate Division, Second Department, without costs, by the Court of Appeals sua sponte, upon the ground that a direct appeal does not lie. Inasmuch as Laws of 1984 (ch 103, § 7) may not constitutionally be read to expand this court’s jurisdiction, it may only be interpreted to provide a jurisdictional predicate for a direct appeal to this court where the only question involved is the constitutional validity of a statutory provision (NY Const, art VI, § 3 [b] [2]; CPLR 5601 [b] [2]). There being questions other than the constitutional validity of a statute involved, transfer to the Appellate Division is ordered (NY Const, art VI, § 5 [b]).


text:
    The People of the State of New York, Respondent, v Wanda Shedrick, Appellant.
    Submitted September 23, 1985;
    decided October 15, 1985
   Motion to vacate this court’s order of dismissal dated August 30, 1985 granted, appeal reinstated and case set down for argument on November 13, 1985, the respondent People’s brief to be served and filed on or before October 30, 1985. [See, 65 NY2d 975.]

Judge Simons taking no part.


text:
    In the Matter of Marcus Johnson, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Decided October 17, 1985

      APPEARANCES OF COUNSEL

      Leigh E. Anderson for appellant.

      Robert Abrams, Attorney-General (Robert Hermann and Betsey Broder of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (112 AD2d 50).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Neville F. Caesar, on Behalf of Himself and All Other Employees of Chemical Bank Similarly Situated, Respondent, v Chemical Bank, Appellant.
    Decided October 17, 1985

      APPEARANCES OF COUNSEL

      John B. Wynne, Robert T. Stephenson and Harold Weisblatt for appellant.

      Alan R. Aledort for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by granting defendant’s motion for permission to proceed with pretrial disclosure and, as so modified, the order should be affirmed, with costs. The certified question is answered in the negative.

Neither oral nor implied consent is a complete defense to a privacy action under Civil Rights Law § 51 (Lomax v New Broadcasting Co., 18 AD2d 229). Written consent is explicitly required by the statute and any change in that unambiguous requirement must come from the Legislature (see, Parochial Bus Sys. v Board of Educ., 60 NY2d 539, 548-549). Accordingly, plaintiffs motion for partial summary judgment as to liability on the first cause of action was properly granted. Moreover, Special Term’s certification of the action as a class action involved no abuse of discretion. However, inasmuch as oral and implied consent are available as partial defenses in mitigation of damages (Lomax v New Broadcasting Co., supra), defendant is entitled to disclosure of facts relevant to those issues in preparation for the inquest on damages.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Titone concur; Judge Alexander taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to appellant. Question certified answered in the negative.


text:
    Columbus Trust Company, Respondent, v Mary Campolo, Appellant.
    Decided October 17, 1985

      APPEARANCES OF COUNSEL

      Vincent Geraci for appellant.

      Milton M. Schussheim for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), as limited by the submission letters, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (110 AD2d 616).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of George W. Walker et al., Respondents, v Board of Assessors of the County of Nassau, Appellant.
    Argued September 11, 1985;
    decided October 17, 1985

      APPEARANCES OF COUNSEL

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

      Peter J. Mastaglio and Susanne Burris for respondents.

      Adolph Koeppel and Donald F. Leistman for Reckson Associates and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

Real Property Tax Law § 485-b (L 1976, ch 278) permits the exemption from tax of "[r]eal property constructed, altered, installed or improved subsequent to the first day of July, nineteen hundred seventy-six for the purpose of commercial, business or industrial activity”. The permitted exemption in the first year is 50% of the increase in the assessed value attributable to the construction, alteration, installation or improvement. During each of the succeeding nine years the exemption is reduced by 5%. Section 485-b (7) permits a school district to reduce the tax exemption for school taxes to zero by a resolution filed with the State Board of Equalization and Assessment if the district levies school taxes.

From September 14, 1976 to April 18, 1977 the petitioner school districts adopted and filed resolutions "opting out” of the tax exemptions provided by section 485-b. Copies of the resolutions were filed with both the State Board of Equalization and Assessment and the Board of Assessors. The Board refused to give effect to petitioners’ resolutions, contending that subdivision 7 did not authorize petitioners to "opt out” of the exemption because they are not school districts which "lev[y] taxes”. The trial court and the Appellate Division held that petitioners are school districts intended to be included in the statute.

The word levy has various meanings but the definition which this court has approved, and which it may be assumed the Legislature intended when it enacted section 485-b (7), is found in People ex rel. Oswego Falls Corp. v Foster (251 App Div 65, affd 278 NY 494). In that case we approved a ruling of the Appellate Division determining that to "levy taxes” was to do that which is necessary to authorize the collector to collect the tax, to extend them against the taxable property (id., p 68). In so ruling the Appellate Division held that the City of Fulton levied State and county taxes, although it collected only the amounts certified to it by the county and remitted them to the county, because the city extended the amounts certified to it by the Board of Supervisors for State and county tax purposes against the city tax rolls and actually collected the taxes. That authority was granted to the city by the Legislature when it enacted the city charter authorizing the city to collect the sums certified and, in the absence of payment, to advertise and sell the lands upon which the taxes remained unpaid.

Similarly, in this case the Legislature has by the enactment of the Nassau County Administrative Code (L 1939, ch 272) authorized the respondent to prepare the assessment roll for school districts (Nassau County Administrative Code § 6-19.0). Petitioners’ adopt their budgets, fix the amount of taxes to be raised and certify those items to respondent Board, but the Board of Assessors extends the taxes on the assessment roll (Nassau County Administrative Code § 6-21.0). When the school district taxes have been extended, appellant certifies that fact to the Nassau County Board of Supervisors and provides those portions of the school district assessment rolls to which the warrants for the collection of taxes are to be annexed (Nassau County Administrative Code § 6-22.0). Thereupon, the Nassau County Board of Supervisors levies the school district taxes so extended by the Board of Assessors (Nassau County Administrative Code § 6-22.0). The warrants which command the town receivers of taxes to collect the taxes are annexed by the clerk of the Board of Supervisors and signed by the Nassau County Executive and sealed with the county seal (Nassau County Administrative Code § 5-11.0).

This statutory scheme is indistinguishable from the one described in the Oswego Falls Corp. case and compels reversal. Although petitioner school districts independently determine their budgets and the sums to be raised by real property taxes to meet those budgets, they do not levy taxes as that term has been legally defined. Accordingly, petitioners could not "opt out” of the exemption provided by Real Property Tax Law § 485-b.

Insofar as our decision in Newsday, Inc. v Town of Huntington (55 NY2d 272) may be read as suggesting that petitioners do levy taxes, we would but note that although in that case respondent contended in its brief that respondent school district involved did not levy taxes within the meaning of section 485-b (7), the court decided the case on the ground that Newsday’s property was not encompassed within the school board’s "opting out” resolution because the construction preceded its adoption.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Order reversed, with costs, and petition dismissed in a memorandum. Question certified not answered as unnecessary.

      . The statute has been amended (see, L 1985, ch 512, § 1). Subdivision 7 now permits all school districts to opt out except those governed by Education Law article 52 (New York City, Buffalo, Rochester, Syracuse and Yonkers).

      . Prior to July 26, 1982, the school districts were also required to determine the tax rate per $100 of assessed valuation and certify the same together with their budget to the Nassau County Board of Assessors (Nassau County Administrative Code § 6-20.0). By virtue of Local Law No. 6-1982, however, section 6-20.0 was amended to delete that provision for determination of a tax rate by school districts. By virtue of that amendment, the county by its Board of Supervisors sets the tax rate.


text:
    Lilly Zuckerman, as Preliminary Executrix of the Estate of Ronald Dreier, Deceased, Respondent, v Bella L. Linden et al., Appellants.
    Decided October 17, 1985

      APPEARANCES OF COUNSEL

      Bella L. Linden, pro se, and Joseph Calderon for Bella L. Linden and others, appellants.

      Martin D. Edel for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (70 AD2d 820). The weight of the evidence more nearly comports with the findings by the Appellate Division.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Robert Cimino et al., Appellants, v Town of Hempstead, Respondent.
    Decided October 17, 1985

      APPEARANCES OF COUNSEL

      Stanley M. Goldberg for appellants.

      Frank L. Amoroso and Edward J. Hart for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (110 AD2d 805).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone. Taking no part: Judge Simons.


text:
    Jewish Board of Family and Children's Services, Inc., Appellant, v City of New York et al., Respondents.
    Argued September 5, 1985;
    decided October 17, 1985

      APPEARANCES OF COUNSEL

      John W. Mitchell, Edward M. Chikofsky and Karen F. Silverman for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Ellen B. Fishman and Stephen J. McGrath of counsel), for respondents.

      John P. Hale and Elise Liebowitz for Catholic Charities of the Archdiocese of New York, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (109 AD2d 619).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of Dadson Plumbing Corporation, Appellant, v Harrison J. Goldin, as Comptroller of the City of New York, et al., Respondents.
    Argued September 10, 1985;
    decided October 10, 1985
    APPEARANCES OF COUNSEL

      Joseph M. Midler and Victor G. Grossman for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Charlotte Biblow and Francis F. Caputo of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be modified, with costs to appellant, and the matter remitted to the Comptroller for the entry of a new determination in accordance with this memorandum.

Petitioner, Dadson Plumbing Corporation, a father-son plumbing operation engaged exclusively in the performance of contracts for the New York City Board of Education, was awarded five contracts during 1982. Pursuant to a complaint filed by a plumbers’ union representative, respondent Comptroller commenced an investigation, pursuant to Labor Law § 220, to determine whether Dadson provided the prevailing wages to one Randy Lane, a neighbor whom Dadson had employed as a "go-fer.”

The evidence at the hearing established that Lane had, among other things, driven Dadson’s truck to and from the job-sites, picked up tools, gone for coffee, and, from time to time, patched, painted and chipped holes. The hearing officer found that Lane was not a mere errand boy and was entitled to the prevailing wages required by law, which he had not received (NY Const, art I, § 17; Labor Law § 220). As a result, the Comptroller found a violation of Labor Law § 220 and imposed a civil penalty. The Appellate Division confirmed the determination by a divided court and petitioner appeals as of right.

There is plainly substantial evidence to support the administrative determination; hence, judicial review is exhausted (Matter of Pell v Board of Educ., 34 NY2d 222). Nor is there any merit to the claim that hearsay evidence was improperly received or relied upon (Matter of Eagle v Paterson, 57 NY2d 831, 833).

The penalty imposed is, however, of concern. The Comptroller, in a single order, determined that Dadson willfully violated Labor Law § 220 by failing to provide prevailing wages to an employee on five contracts.

The number of violations found is important due to the debarment provisions of Labor Law § 220-b (3) (b). Under that section, once "final determinations” have been rendered in "two instances” finding that there has been a willful violation of the prevailing wage laws, the violator is "ineligible to submit a bid on or be awarded any public work contract with the state, any municipal corporation or public body for a period of five years from the second final determination” (Labor Law § 220-b [3] [b]). Inasmuch as these provisions are penal in nature (McKinney’s Cons Laws of NY, Book 1, Statutes § 273), they must be "strictly construed against the party seeking their enforcement and in favor of the person being proceeded against” (McKinney’s Statutes § 271 [a]). The statute clearly requires one final determination prior to the second final determination so as to establish knowing repetition as the predicate for a five-year suspension from bidding.

Accordingly, we hold that there has been but a single final determination here and that petitioner is not debarred from bidding. The matter should be remitted to the Comptroller so that he may modify his determination to reflect our holding.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Judgment modified, with costs to appellant, and matter remitted to Supreme Court, New York County, with directions to remand to the Comptroller for a new determination in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Guy P. Wyser-Pratte, Respondent, v Judith N. Wyser-Pratte, Appellant.
    Decided October 17, 1985

      APPEARANCES OF COUNSEL

      Joel R. Brandes for appellant.

      Joseph Ferraro for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for a hearing on whether defendant’s alleged inability to be self-supporting is such as to warrant an upward modification of maintenance.

Since defendant was seeking modification of maintenance on the basis of her "inability to be self-supporting” (Domestic Relations Law § 236 [B] [9] [b]), allegations of change in circumstance were not necessary in order for the court to grant a hearing on whether modification was warranted. As long as the party seeking modification on the basis of "inability to be self-supporting” presents allegations sufficient to raise an issue of fact as to whether he or she has been unable to be self-supporting, as defendant did here, the court should refer the matter for a hearing on whether modification is warranted. Accordingly, inasmuch as it cannot be said that defendant’s allegations of inability to find employment over a six-week period were insufficient to justify upward modification of maintenance on "inability to be self-supporting” grounds as a matter of law, a hearing should be held.

Judges Jasen, Meyer, Simons, Kaye, Alexander and Ti-tone concur; Chief Judge Wachtler taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and matter remitted to Supreme Court, New York County, for a hearing in accordance with the memorandum herein.


text:
    In the Matter of Pittsford Plaza Associates, Respondent, v Paul M. Spiegel et al., Constituting the Town Board of the Town of Pittsford, Appellants. Phillip A. Smethurst et al., Intervenors-Appellants.
    Decided October 17, 1985

      APPEARANCES OF COUNSEL

      James A. Reed, Jr., for appellants.

      Francis E. Kenny, Thomas C. Greiner, Jr., and Stephen J. Seleman for intervenors-appellants.

      John J. Darcy for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of the Supreme Court, Monroe County, reinstated.

Petitioner, the owner of a regional shopping center located in the Town of Pittsford, commenced this CPLR article 78 proceeding to annul the Town Board’s rejection of its site plan for the proposed construction of a seven-screen movie theatre. The Town Board action was taken pursuant to its retained authority over preliminary site plans (Pittsford Code § 15-228), upon the Town Board’s finding that the theatre project and the additional traffic it would generate would have an adverse impact on public health, safety and welfare, notwithstanding the Zoning Board of Appeals’ conditional approval of a special use permit.

Special Term dismissed the petition, but the Appellate Division reversed on the ground that the Town Board had exceeded its powers in effectively overruling the Zoning Board of Appeals. We disagree and reinstate Special Term’s judgment.

In Matter of Gershowitz v Planning Bd. (52 NY2d 763, 765, revg 69 AD2d 460, 474), the only authority cited by the Appellate Division in this case, we held that a Town Planning Board, as a delegate of a Town Board (see, Town Law §§ 274, 274-a), cannot withhold approval of a site plan on the ground that the Zoning Board of Appeals had erroneously construed the local zoning ordinance in granting a special permit for the proposed use (see also, Rattner v Planning Commn., 103 AD2d 826; Mayo, Land Use Control, 33 Syracuse L Rev 401, 415). In this case, however, the Town Board did not deny a site plan as not being in compliance with the Pittsford ordinance. It disapproved the application under its independent powers expressly provided in the ordinance, namely the "adequacy and arrangement of vehicular traffic access and circulation” (Pittsford Code § 15-118 [b] [1]). Inasmuch as there is substantial evidence to support the Town Board’s determination, it is impervious to attack in the courts.

We would note, however, that the Appellate Division correctly rejected petitioner’s contentions that the Town Board lacks the power of final approval of preliminary site plans. The ordinance, enacted prior to the 1976 amendments to Town Law § 274-a, clearly authorizes it to do so and the Town’s Board retention of such control subsequent to the 1976 amendments is not in contravention of Town Law § 274-a (see, Town Law § 274; Webster Assoc. v Town of Webster, 112 Misc 2d 396, 403-404, affd 85 AD2d 882, revd on other grounds 59 NY2d 220).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    Willow Tex, Inc., et al., Respondents, v George Dimacopoulos et al., Appellants.
    Submitted August 12, 1985;
    decided October 17, 1985
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601 [a] [iii]).

Judges Simons taking no part.


text:
    In the Matter of National Farmers Organization, Inc., Respondent, v Joseph Gerace, as Commissioner of the New York State Department of Agriculture and Markets, et al., Appellants.
    Decided October 22, 1985

      APPEARANCES OF COUNSEL

      Thomas G. Conway and Michael McCormick for appellants.

      Arnold W Proskin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the judgment of Supreme Court reinstated, with costs.

Although it is not clear whether an article 78 proceeding, as has been taken here, or an application to amend the remittitur or final judgment in the prior proceeding is the appropriate procedural means of obtaining review (see, Brodsky v Murphy, 25 NY2d 518, 520), in either case petitioner is not entitled to collect CPLR 5002 prejudgment interest on its claim. First, in the absence of a stay by Supreme Court, petitioner could have demanded payment of the $60,031.99 30 days after the Commissioner’s determination and any time thereafter, but did not do so (Agriculture and Markets Law § 258-b [5] [d]). Second, the Milk Producers Security Fund (Fund) is not designed to make a claimant whole, and does not compensate milk producers for actual losses but only as specified by statute (see, Agriculture and Markets Law § 258-b [5]; see also, Northeast Dairy Coop. v Barber, 101 AD2d 362). Third, permitting the addition of CPLR 5002 prejudgment interest to Commissioner’s awards, particularly where such interest could accumulate over the long course of sometimes delayed and protracted appeals, could threaten the vitality of the Fund, in contravention of the Legislature’s intent that the Fund be prudently administered (see, Matter of Eastern Milk Producers Coop. Assn. v State Dept. of Agric. & Mkts., 58 NY2d 1097, 1100-1101). Finally, where the Legislature contemplates the payment of interest on certain claims, it has so specified in the statute (see, Agriculture and Markets Law § 258-b [5] [e], [f]). If the Legislature contemplated that interest should be paid from the date of the Commissioner’s award to entry of the final judgment, it would have so specified (see, Brodsky v Murphy, 25 NY2d 518, supra). We reject the contention that our failure to refer to interest in the prior proceeding (see, Matter of National Farmers Org. v Barber, 59 NY2d 866) was a "clerical error”.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    In the Matter of the Town of Mamaroneck PBA, Inc., Appellant, v New York State Public Employment Relations Board et al., Respondents.
    Decided October 22, 1985

      APPEARANCES OF COUNSEL

      David Schlachter and Karen Erb for appellant.

      Martin L. Barr and Anthony Cagliostro for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the petition granted and the determination of the Public Employment Relations Board annulled.

Although as the agency charged with implementing the policies of the Taylor Law (Civil Service Law § 200 if), the Public Employment Relations Board is presumed to have developed an expertise which requires us to accept its construction of that law if not unreasonable (Matter of Incorporated Vil. of Lynbrook v State Public Employment Relations Bd., 48 NY2d 398, 404), with respect to the interpretation of other laws where "the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent,” its interpretations need not be accorded such deference (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

Here we must interpret Town Law § 153, and essentially the same language contained in the Laws of 1936 (ch 104, § 5) which governs Westchester County Police Departments. Town Law § 153 provides that upon transfer from one town police department to another town or village police department in the same county, the police force member "transferred shall receive credit with the department to which he is transferred for time served on the police force or in the department of any village or town within the same county, as though the full time had been served with the department to which he has been transferred, for purposes of seniority, promotion, pensions and general administration.”

There can be no question that transfer credit includes longevity increments (Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743, 744; see, Matter of Union Free School Dist. No. 2 v Nyquist, 38 NY2d 137, 142) and that, therefore, in the face of a statute providing that any year of transfer credit shall be counted as a year of service, longevity credit is not subject to arbitration or collective bargaining under the Taylor Law (Syracuse Teachers Assn. v Board of Educ., supra, at p 744). The fact that neither the Town Law nor the Westchester County Police Act includes the words "longevity pay” does not require a contrary conclusion, for both refer to seniority, promotion, and pension rights all of which are matters involving substantial pecuniary benefits related to length of service. Moreover, failing to give transfer credit for the purpose of computing longevity pay would serve to discourage transfers and to undermine the purpose of the sections to place the transferee squarely in the shoes of the officer who has served all such time in the town to which the transfer is made (see, 31 Opns St Comp, 1975, at 11-12).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in memorandum; Judge Titone taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    Daryl Adams, Respondent, v County of Rensselaer et al., Appellants.
    Decided October 22, 1985

      APPEARANCES OF COUNSEL

      James A. Lombardo for appellants.

      Jack J. Pivar for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the certified question answered in the affirmative.

The first cause of action in negligence against the Rensselaer County Sheriff’s Department for allowing a pool of liquid to collect on the floor of the Rensselaer County Jail is time-barred by CPLR 215 (1), which provides a one-year period of limitation during which to bring an action against a Sheriff. The liability to which this short limitation period applies is coextensive with the liability against which a Sheriff must be bonded (Taylor v Mayone, 626 F2d 247; Regan v Sullivan, 557 F2d 300, 305, n 2; Ingo v Koch, 127 F2d 667; Dixon v Seymour, 62 AD2d 444). Under County Law § 403, the Sheriff must execute an official undertaking to the effect that he will "faithfully discharge the duties of his office” (Public Officers Law § 11). As the duties of the Sheriff are those "prescribed by law as an officer of the court and conservator of the peace * * * [as well as those] additional and related duties as may be prescribed by law” (County Law § 650 [1]), and the Sheriff is prescribed, by law, to safely keep inmates of the County Jail (Correction Law § 500-c), the Sheriff would be bonded against the failure to safely keep plaintiff within the Rensselaer County Jail. Thus, CPLR 215 (1), which provides that actions "against a sheriff * * * upon a liability incurred by him by doing an act in his official capacity or by omission of an official duty” shall be commenced within one year, is applicable. The "duties of office” that must be faithfully executed under the County Law are "official” acts within the meaning of CPLR 215 (1).

Dixon v Seymour (supra), upon which plaintiff relies, is not applicable. In that case the duty of the deputy sheriff to use reasonable care while operating an automobile upon the highway was not imposed upon him by his office but, rather, was the general duty assumed by everyone who drives a car. Here, in contrast, the duty to safely keep is imposed upon a Sheriff by his office. Accordingly, the first cause of action must be dismissed as it was not brought within the one-year period of limitation of CPLR 215 (1).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in a memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, reversed, with costs, plaintiff’s first cause of action dismissed, and question certified answered in the affirmative.


text:
    Roy Harris, Respondent, v Dominick Iannaccone et al., Appellants.
    Decided October 22, 1985

      APPEARANCES OF COUNSEL

      Lawrence S. Lawrence for appellants.

      Kurt J. Wolff for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the opinion by Justice Theodore R. Kupferman at the Appellate Division (107 AD2d 429).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Gail W. Resnick et al., Appellants, v H. Joel Gribetz, Respondent.
    Decided October 22, 1985

      APPEARANCES OF COUNSEL

      Steven Di Joseph for appellants.

      Patricia DAlivia for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and a new trial granted. There is no evidence in this record to support a finding of express, as opposed to implied, assumption of risk (compare, Arbegast v Board of Educ., 65 NY2d 161). The trial court erred in charging the jury, over plaintiff’s objection, that a finding of assumption of risk would bar recovery.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Titone. Taking no part: Judge Alexander.


text:
    The People of the State of New York, Respondent, v Raymond Contento, Appellant.
    Decided October 22, 1985
    APPEARANCES OF COUNSEL

      Shawn D. Flaherty for appellant.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. There is nothing for this court to review because there are undisturbed findings of probable cause by the courts below.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


author: Titone, J.

text:
    Hartford Insurance Group, Respondent, v Rakhel Rubinshteyn et al., Defendants, and Nationwide Insurance Companies, Appellant.
    Submitted September 3, 1985;
    decided October 22, 1985

      APPEARANCES OF COUNSEL

      Roy Karlin and Abraham L. Shapiro for appellant.

      Sebastian J. Navarra and Vincent A. Brescia for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of the Supreme Court, Kings County, reinstated.

In this declaratory judgment action, Hartford Insurance Group seeks a declaration that it is not obligated to defend 18th Avenue Garage, Inc. (Garage), its named insured under a Garage Hazard No. 1 policy, in negligence and wrongful death actions in which Garage is a named defendant, arising from the alleged negligent operation of a vehicle sold by Garage to defendant Dennis Schwartz. The Appellate Division held that Hartford had no duty to defend or indemnify Garage because the circumstances surrounding the sale of the offending vehicle clearly indicated that the parties intended that title to the vehicle pass at the time of the sale. In that court’s view, the vehicle therefore was not owned by Garage at the time of the accident and thus was not a "covered auto” under the policy notwithstanding that Garage’s dealer license plates remained on the car.

We disagree and now reverse.

The determinative issue is not whether Garage was the "owner” of the offending vehicle at the time of the occurrence, or whether the omnibus clause of the Hartford policy extended coverage to Schwartz. Rather, the issue is whether the policy, by its terms, provides coverage to Garage in respect to this occurrence.

The policy names Garage, a used car dealer, as the insured, identifies its business as "auto dealer,” and provides that Garage "is insured for any covered auto”. Liability coverage is provided in connection with the "garage operations” of the insured for any "covered auto”. A "covered auto” is expressly defined to include "any auto”, as distinguished from "owned autos only”, "owned private passenger autos only” and other descriptions of "covered autos” contained in Item Three of the policy. The phrase "garage operations” is defined to include "the ownership, maintenance or use of autos indicated * * * as covered autos * * * [and] also [to] include all operations necessary or incidental to a garage business”.

It is clear from these policy provisions that there is no necessity for a vehicle to be "owned” by Garage in order for it to be a "covered auto” (see, Abrams v Maryland Cas. Co., 300 NY 80, 85) and that "any auto” is a "covered auto” if it is maintained or used in the insured’s defined operations, which include all operations "necessary or incidental” thereto (Switzer v Merchants Mut. Cas. Co., 2 NY2d 575, 579). The question then is whether the auto was being used in an operation "necessary or incidental” to the insured’s used car dealership.

We have had occasion previously to remark upon the broad coverage provided by a garage liability policy such as the one at issue here, noting that such a policy "by its terms and purposes is intended to cover the use of cars owned by persons other than the dealer and the limited use of dealers’ plates by vendees where the use and operation of the cars or the permission for the use of the plates are acts performed in furtherance of the business of a dealer. One of the services offered by a dealer in connection with the sale of a car is the temporary use of dealers’ plates” (Phoenix Ins. Co. v Guthiel, 2 NY2d 584, 589). In Switzer v Merchants Mut. Cas. Co. (2 NY2d 575, supra), a case decided the same day as Phoenix, we observed that "[i]t is common practice for automobile dealers to give permission to purchasers of their cars to use temporarily their dealers’ license plates. Indeed, the law recognizes such practice, provides for and regulates it (Vehicle and Trafile Law, §§ 61-63 [now §§ 415, 416])” (id., at p 579).

Vehicle and Traffic Law § 416 permits a purchaser to operate a newly purchased vehicle on public highways for five days following purchase, provided that, among other things, the dealer plates are attached to the vehicle. Indeed, whether or not there had been a sale here, the only way Schwartz could lawfully drive the vehicle before having obtained his own license plates was with Garage’s plates attached. Therefore, in permitting Schwartz to use the dealer plates, an arrangement that benefited both Schwartz and Garage, Garage was rendering a service to its customer that constituted an act "necessary or incidental” to its business (see, Phoenix Ins. Co. v Guthiel, 2 NY2d 584, 589, supra; Toker v The Hartford, 60 AD2d 251). This act was a risk assumed "by the insurer, as the insurer is chargeable with knowledge of the business practices of automobile dealers” (Phoenix Ins. Co. v Guthiel, 2 NY2d 584, 589, supra).

We hold therefore that Hartford is obligated under the policy provisions to defend Garage and indemnify it if necessary.

Dairylea Coop. v Rossal (64 NY2d 1) does not require a different result. There we said that "[a] registered owner who transfers a vehicle without removing the license plates is estopped as against an injured third party from denying ownership, but the estoppel does not prevent his insurance carrier from denying ownership within the meaning of thé policy as against another carrier” (id., at p 10). Here, in a dispute between the carrier and its insured, where the occurrence is within the coverage of the policy, no question of estoppel is presented.

Titone, J.

(dissenting). In this declaratory judgment action, the majority holds that an insurance carrier, which issued a standard garage liability policy, must defend and indemnify a garage against litigation arising from the alleged negligent operation of a vehicle that the garage had previously sold. Because the plain language of the policy explicitly excludes coverage in the present circumstances and the majority holding, which rests solely upon dicta taken out of context from an inapposite authority, will have mischievous consequences beyond the parameters of this case, I dissent.

The underlying facts, which are the skin and bones of this case, are stipulated. On April 1, 1980, defendant Dennis Schwartz purchased a 1978 Pontiac automobile from the 18th Avenue Garage, Inc. (Garage). Before taking possession, Schwartz paid the full purchase price and obtained an insurance binder from a broker for a policy of insurance issued by defendant Nationwide Insurance Company. Schwartz exhibited the binder to the Garage and was permitted to temporarily use dealer plates registered to the Garage (see, Vehicle and Traffic Law § 416). Three days later, while the dealer plates were still on the car, an individual, who was driving with Schwartz’s permission, was involved in an accident in which one person was killed and two others seriously injured. Suit was brought against the Garage, among others.

Plaintiff, Hartford Insurance Group, which had issued a standard garage liability policy to the Garage, then commenced this action seeking a declaration that it is not required to defend or indemnify the Garage in the personal injury and wrongful death litigation. Special Term held that the procurement of the Nationwide policy did not supersede the Hartford policy and that plaintiff was required to defend and indemnify the Garage, if necessary.

The Appellate Division, Second Department, unanimously reversed. Examining the policy provisions, it found that neither Schwartz nor the operator of the vehicle were insureds under the policy and that any coverage which might have existed for them as customers of the Garage ceased when they obtained the Nationwide policy. Further, the Appellate Division reasoned that plaintiff was obligated to defend and indemnify only if the Garage owned the vehicle on the day of the accident, and, unlike the Garage, was not estopped from denying ownership. Since the evidence established that title had passed when Schwartz took possession, the Appellate Division made a declaration in plaintiff’s favor. I would affirm.

To place the question before us in proper context, it is useful to restate some basic principles. New York is a compulsory insurance State, and a motor vehicle may not be registered, absent certain exceptions, unless and until the owner furnishes proof that a liability policy has been issued by an authorized insurer, containing, among other things, an omnibus clause which covers the owner and anyone operating the vehicle with the owner’s permission (Insurance Law § 3420 [e]; Vehicle and Traffic Law § 312 [1] [a]). In addition, by virtue of Vehicle and Traffic Law § 388, the negligence of any person operating the vehicle with the owner’s permission is statutorily imputed to the owner in any personal injury litigation, making the owner and operator jointly and severally liable (see, Naso v Lafata, 4 NY2d 585, 590; Traub v Dinzler, 309 NY 395; Hatch v Lovejoy, 142 Misc 137; 1 NY PJI2d 568). In this fashion, an injured plaintiff is theoretically guaranteed a solvent defendant, at least up to the statutory minimum set for compulsory insurance.

An automobile cannot, of course, be operated on a public highway without license plates (Vehicle and Traffic Law §§ 401, 402). Often, however, a purchaser will want to drive the vehicle before the registration process is completed. The law recognizes this contingency with respect to dealers. Dealers are authorized to allow their customers to utilize special dealer plates for a period of up to five days following a sale, provided that certain requirements are met, including the submission of a proper application for registration with the necessary insurance coverage (Vehicle and Traffic Law §§ 415, 416; see, 7 NY Jur 2d, Automobiles and Other Vehicles, § 208).

If the statutory requisites are not followed, or a nondealer permits the purchaser to use his plates, and the vehicle is involved in an accident, the registered owner, as reflected by the license plates, is estopped from denying ownership of the vehicle, and pursuant to Vehicle and Traffic Law § 388, is vicariously liable, permissive use being imputed through the use of the plates (e.g., Switzer v Aldrich, 307 NY 56; License Plates—Improper Use, Ann., 99 ALR2d 904, § 4 [a], and later case service [collecting New York cases]). Nonetheless, because the insurance carrier which issued the policy to the record owner has not engaged in any wrongful conduct, no estoppel operates against it, and it may establish that the automobile is, in fact, owned by another (Dairylea Coop. v Rossal, 64 NY2d 1; Rudes v Hartford Acc. & Indem. Co., 32 AD2d 575, lv denied 25 NY2d 739; Mason v Allstate Ins. Co., 12 AD2d 138). The applicable principles are succinctly stated in Pattern Jury Instructions, as follows: "Registration is prima facie evidence of ownership * * * and the presumption arising from proof of registration may not be rebutted by proof of violation of the statutes and regulations governing use of dealer’s plates * * * or illegal and fraudulent registration * * * Thus * * * an owner who leaves the license plates on the vehicle after transfer is estopped to deny ownership * * * However, the estoppel of the record title operates against the record owner only and does not prevent * * * the record owner’s insurer from establishing that the vehicle was in fact owned by another” (1 NY PJI2d 568-569).

In this case, as the Appellate Division correctly held, neither the purchaser nor the operator of the vehicle were insureds under the Garage policy, and the carrier was free to establish, as it did, that its insured did not own the vehicle at the time of the accident so that there is no coverage under the omnibus clause. The majority does not take issue with these aspects of the Appellate Division decision. Instead, it finds that the Garage’s issuance of dealer plates was a service to customers, and, therefore, was an act "necessary or incident” to the Garage’s business, within the ambit of coverage. This point has neither been briefed nor argued by the appellants, and for good reason — it plainly lacks substance.

As a matter of plain meaning, permitting a customer to utilize dealer plates cannot be deemed an "operation * * * necessary or incidental to a garage business” within the meaning of the policy. As commonly understood, an act is "necessary or incidental” to a business only when it is both causally related to the business and is essential or indispensible to the business (see, Barton Mines Corp. v Commissioner of Internal Revenue, 446 F2d 981, 991), the definition applied to garage liability policies by the courts of this State (see, Davis v Hartford Acc. & Indem. Co., 48 Misc 2d 135, mod 25 AD2d 604; Spiegel v Felton, 206 Misc 499) and elsewhere (e.g., Fidelity & Cas. Co. v Napleton Motor Sales, 5 Ill App 3d 705, 284 NE2d 26; Automobile Underwriters v Hitch, 169 Ind App 453, 349 NE2d 271; 8 Blashfield, Automobile Law and Practice § 319.3, at 102 [3d ed]). The lending of dealer’s plates hardly meets the criteria of being essential or indispensible to the business. In any event, the accident itself arose from the negligence of the operator, an act neither necessary nor incidental to the use of dealer’s plates (see, Drennan v Great Am. Ins. Co., 27 AD2d 641).

Despite the plain and clear language of the policy, which must be given effect (Fagnani v American Home Assur. Co., 64 NY2d 967, revg on dissent at 101 AD2d 803, 806; Government Employees Ins. Co. v Kligler, 42 NY2d 863), the majority points to a dictum contained in Switzer v Merchants Mut. Cas. Co. (2 NY2d 575, 580). That dictum, however, is taken completely out of context. Although the case did involve a garage policy and dealer plates, the similarity ends there. We did not, even remotely, focus on the issue presented here.

In Switzer, a dealer sold a vehicle under a conditional sales contract and permitted the purchaser to use a set of dealer plates; however, the dealer failed to comply with the statutory requisites. An accident occurred while the dealer plates were on the car and suit was brought against the dealer and the purchaser. At trial, the complaint against the dealer was dismissed and a judgment was recovered against the purchaser. We reversed the dismissal of the complaint against the dealer holding that he was estopped from denying ownership and that he could be vicariously liable under the predecessor to Vehicle and Traffic Law § 388 (Switzer v Aldrich, 307 NY 56, supra).

An execution of the judgment against the purchaser was returned unsatisfied, and, with the action against the dealer still pending, plaintiff served notice of the judgment on the dealer’s insurer, and a demand for payment. The insurer disclaimed liability and plaintiff submitted the controversy to the Appellate Division on an agreed statement of facts. The Appellate Division held for the carrier and plaintiff appealed to this court for the second time.

The only question before us in that second appeal was whether the purchaser was an insured under the Garage policy. No question concerning the carrier’s obligation to defend and indemnify the dealer was ever briefed or argued, much less discussed in the Switzer opinion. As we expressly noted, "Defendant insurer * * * does not dispute that it would be responsible for any liability which might be imposed upon the dealer, a responsibility which could only exist if * * * [the purchaser’s] use were within the hazards covered by the policy. Nor could the insurer now evade such responsibility in view of its defense of the dealer in the previous action, with knowledge of all the material facts relating to any defense which it might have had under the policy” (Switzer v Merchants Mut. Cas. Co., supra, at p 580) (emphasis in original).

Our determination that the purchaser was an insured under the omnibus clause was predicated on two grounds: (1) that the dealer, in accordance with the prior holding in Switzer v Aldrich (supra), was vicariously liable, because the purchaser was operating the truck with dealer’s plates, and (2) that "the acts of the dealer here constitute the permission which brings [the purchaser] into the coverage of the policy, by its own terms” (Switzer v Merchants Mut. Cas. Co., supra, at p 581). The prior dictum quoted by the majority here, concerning the "common practice for automobile dealers to give permission to purchasers of their cars to use temporarily their dealers’ license plates” (id., 2 NY2d, at p 579), referred to permission under the omnibus clause covering the purchaser. It plainly cannot be read to support the proposition that the use of dealer’s plates is "incidental” to the garage business so that merely lending dealer’s plates constitutes an act within the ambit of the policy. That we were concerned only with the purchaser’s rights under the policy is made evident by our subsequent decision in General Acc. Fire & Life Assur. Corp. v Piazza (4 NY2d 659, 666), where we limited Switzer to its facts and explained that in Switzer we had only "held that the policy, by its terms, covered the operator as an insured” (emphasis in original).

The purchaser here cannot be included as an insured because, unlike the Switzer policy, the policy issued by plaintiff contains an explicit exclusion in circumstances where the customer procures his own insurance (cf. Toker v The Hartford, 60 AD2d 251 [a policy not containing such exclusion]). Even under the Switzer policy, however, the purchaser here could not fit within the theory of implied permission. An absolute sale is vastly different from a conditional one. "The owner of an automobile does not operate it with the permission of the person from whom he has purchased it within the meaning of the Vehicle and Traffic Law or the Insurance Law, nor does he so operate it within the meaning of a liability policy provision insuring against loss from such operation, unless the policy specifically covers such a situation” (Mason v Allstate Ins. Co., 12 AD2d 138, 143). It thus appears to be basic that once title passes, as it did here (see, Bornhurst v Massachusetts Bonding & Ins. Co., 21 NY2d 581), the purchaser is not covered as an insured under the standard garage liability policy (see, Wicker v National Sur. Corp., 330 F2d 1009, cert denied 379 US 838; Universal Underwriters Ins. Co. v Wilson, 33 Md App 36, 363 A2d 627; St. Paul Fire & Mar. Ins. Co. v Boykin, 251 SC 236, 161 SE2d 818; Liability Insurance—Car Dealers, Ann., 93 ALR2d 1047, § 3 [b], and later case service; 6C Appleman, Insurance Law and Practice § 4451, at 479 [Buckley ed]; Gough, Coverage on Vehicles After Transfer of Ownership by Dealers and Non-Dealers, 25 Ins Counsel J 177; Young, Some "Windfall Coverages” In Property and Liability Insurance, 60 Colum L Rev 1063, 1080-1081).

To the extent that the majority quotes dicta from Phoenix Ins. Co. v Guthiel (2 NY2d 584), that dicta, too, is taken out of context; Phoenix similarly offers no support for the majority holding. In fact, in that case the court permitted the carrier to disclaim coverage.

Nor do I perceive any reason to rewrite the policy and ignore its explicit language. There is insurance available to cover the loss because the customer purchased a policy before he was permitted to take possession of the vehicle. Further, the liability fixed here is simply not "such a hazard falling] within the contemplation of the parties in arriving at a proper premium for the risk undertaken” (6C Appleman, Insurance Law and Practice § 4451, at 479, n 16.15 [Buckley ed]). In sum, permitting customers to use dealer plates is not an act "necessary or incidental” to the operation of a garage, as those terms are commonly understood. The contrary result, while perhaps desirable as a matter of social policy, is reached only by draining these words of their plain meaning and abrogating a line of precedent only recently reaffirmed (Dairylea Coop. v Rossal, 64 NY2d 1, supra).

Accordingly, I dissent and vote to affirm the order of the Appellate Division.

Judges Jasen, Meyer, Simons, Kaye and Alexander concur in memorandum; Judge Titone dissents and votes to affirm in an opinion in which Chief Judge Wachtler concurs.

Order reversed, etc.

       The driver’s contributory negligence is not, however, imputed to the owner-passenger (Kalechman v Drew Auto Rental, 33 NY2d 397).


text:
    Robert A. Bisca, Appellant, v Lois Bisca, Respondent. (Action No. 1.) Lois Bisca, Respondent, v Robert A. Bisca, Appellant. (Action No. 2.)
    Argued September 4, 1985;
    decided October 22, 1985
   Appeal dismissed, without costs, upon the ground that the modification at the Appellate Division is not in a respect reviewable by the Court of Appeals (CPLR 5601 [a] [iii]; Patron v Patron, 40 NY2d 582).


text:
    In the Matter of Builtland Partners, Respondent, v Jack LaLanne Biltmore Health Spa, Inc., Appellant.
    Submitted August 26, 1985;
    decided October 22, 1985
   Motion to dismiss the appeal herein denied.

Judge Simons taking no part.


text:
    Lillian Gabrelian, Respondent, v Gabriel Gabrelian, Appellant.
    Decided October 22, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not a party aggrieved by the order appealed from (CPLR 5511), and that the order appealed from does not finally determine the action within the meaning of the Constitution.

Judge Simons taking no part.


text:
    Kenford Company, Inc., Plaintiff, and The Dome Stadium, Inc., Appellant-Respondent, v County of Erie et al., Respondents-Appellants.
    Submitted August 26, 1985;
    decided October 22, 1985
   Motion to dismiss appeal by plaintiff The Dome Stadium, Inc., denied.

On the court’s own motion, cross appeal by defendants dismissed, without costs, upon the ground that the order insofar as appealed from does not finally determine the action within the meaning of the Constitution. The defendants cross appellants are not aggrieved by the order of the Appellate Division insofar as it finally determined the claim by The Dome Stadium, Inc.

Judges Simons and Kaye taking no part.


text:
    In the Matter of Roadway Express, Inc., Appellant, v Commissioner of the New York State Department of Labor, Respondent.
    Argued October 7, 1985;
    decided October 24, 1985

      APPEARANCES OF COUNSEL

      Stuart A. Summit, Richard A. Wilsker, Randy L. Levine and Barbara Hoey for appellant.

      Robert Abrams, Attorney-General (Howard B. Friedland, Robert Hermann, Carlin Meyer and Jane Lauer Barker of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

In this proceeding to quash a subpoena it is conceded that the records were surrendered in accordance with the subpoena when the Appellate Division refused to grant a stay pending the appeal to that court. There is no basis for this court to exercise its discretion to retain the appeal despite the mootness (cf. Matter of Barbara C., 64 NY2d 866) since there is no showing that the issue is the type likely to evade review. Indeed, a proceeding relating to the Commissioner’s subsequent efforts to enforce the statute at issue is still pending in the lower courts.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur; Judge Simons taking no part.

Appeal dismissed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Nicholas Diaz, Appellant.
    Argued October 15, 1985;
    decided October 24, 1985

      APPEARANCES OF COUNSEL

      Carlos Perez Olivo for appellant.

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

Memorandum.

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

Defendant was convicted of two counts of robbery in the first degree and two counts of robbery in the second degree. The jury commenced deliberations at 12:40 p.m. on April 18, 1982, and rendered its guilty verdicts approximately 24 hours later, on April 19, 1982. On the first day of deliberations, the jury expressed to the court their inability to reach a verdict and advised the court that a single juror was unconvinced of defendant’s guilt. Upon the repeated urgings of the trial court, however, the jury continued deliberations until 12:35 a.m., at which time they were sequestered. On April 19, 1982, prior to the resumption of deliberations, the jury forwarded two notes to the court. One note indicated that further deliberations would be fruitless since the jurors were physically and mentally exhausted. The other note, sent by the lone dissenting juror, stated: "I have my doubts concerning the accuracy of the identification of the defendant as being the perpetrator”. In response, the court stated: "I am going to ask you again, as I asked you yesterday, that if there is a dissenting juror in this case he should consider whether his doubt is a reasonable doubt since it is not concurred in by the majority of jurors who I think are equally as intelligent, equally observant, come from equal backgrounds as that juror. I tell you right now that deliberations in this case will continue until such time when I decide that they should not continue. I believe that there is a chance of reaching a verdict in the case.” Recognizing that the court repeatedly stressed the desirability of reaching a verdict by means of supplemental charges, singled out the dissenting juror by its comments, and suggested that the jury would continue deliberations until the court decided that said deliberations should be terminated, we hold that the conduct of the court represented improper coercion of the jury to agree upon a verdict (cf. People v Pagan, 45 NY2d 725, 727; see, Matter of Plummer v Rothwax, 63 NY2d 243, 250). Accordingly, a new trial should be ordered.

Chief Judge Wachtlek and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Robert Pavone, Appellant, v Hartley W. Barclay, Jr., as Personnel Officer of the County of Westchester, et al., Respondents.
    Decided October 24, 1985

      APPEARANCES OF COUNSEL

      Gerald M. Klein, Town Attorney (Thomas F. Wood of counsel), for appellant.

      Henry J. Logan, County Attorney (Andrea L. McArdle of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (110 AD2d 758).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    The People of the State of New York ex rel. Anthony Quinones, Appellant, v New York State Board of Parole et al., Respondents.
    Decided October 24, 1985

      APPEARANCES OF COUNSEL

      Salvatore D. Ferlazzo for appellant.

      Robert Abrams, Attorney-General (Charles C. Davis, Jr., of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (109 AD2d 908).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Jeffrey R. Balancio, Appellant, v American Optical Corporation, Respondent.
    Decided October 24, 1985

      APPEARANCES OF COUNSEL

      Frank T. D’Onofrio, Jr., for appellant.

      George W. Scapolito for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. We cannot say as a matter of law that the Appellate Division abused its discretion. Plaintiff also contends for the first time on appeal that the court lacked subject matter jurisdiction because the demand to file a note of issue was not served by registered or certified mail as the rule requires. He does not dispute that he received actual timely notice of the demand. The failure to serve a CPLR 3216 demand by registered or certified mail is a procedural irregularity and, absent a showing of prejudice to a substantial right of a plaintiff, courts should not deny, as jurisdictionally defective, a defendant’s motion to dismiss for neglect to prosecute (see, Beermont Corp. v Yager, 34 AD2d 589; see also, Rumrill v Epting, 88 AD2d 1047, 1048, n; compare, Smith v City of Troy, 77 AD2d 691, affd 54 NY2d 890 [incorrect statement of time period under statute]).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander. Taking no part: Judge Titone.


text:
    In the Matter of New York State Department of Mental Hygiene et al., Respondents, v State Division of Human Rights, on Complaint of Kevin Carey, et al., Appellants.
    Argued September 6, 1985;
    decided October 24, 1985

      APPEARANCES OF COUNSEL

      Christopher R. Knauth and Roberto Albertorio for appellants.

      Frederic Block for respondents.
   OPINION OF THE COURT

Memorandum.

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

On April 8, 1976, in the course of employment interviews by Kings Park Psychiatric Center, complainant was asked whether he had ever been arrested. He informed the interviewers that he had been arrested for petit larceny in January 1975, but that the charge had been disposed of by an adjournment in contemplation of dismissal (see, CPL 170.55). The interviewers assured him that such a disposition was "nothing to worry about” and, indeed, he was hired and commenced his probationary period of employment on April 22, 1976. As a new employee, complainant was fingerprinted for purposes of a background investigation check required by the Department of Civil Service. On July 22, 1976, Kings Park received notification from the Department of Civil Service that the investigation revealed a petit larceny charge for which complainant had been arrested on January 10, 1975, that the charge was apparently still pending, and that complainant should be directed to submit an official court transcript documenting final disposition of the reported arrest. Kings Park, by letter dated September 14, 1976, asked complainant for a copy of the final disposition, advising him that failure to supply the documentation might result in termination. Complainant concluded that under a new law — Executive Law § 296 (16), which came into effect September 1, 1976 — he was excused from submitting the requested documentation, and made no response to his employer’s request.

During this same period complainant had been experiencing personal problems which resulted in a poor attendance record. By letter dated October 7, 1976, while complainant was still within his probationary period, Kings Park notified him that he was being discharged. He then commenced a proceeding before the State Division of Human Rights, charging that his termination was the result of a refusal to comply with an unlawful request for information concerning his arrest record. The Division found that Kings Park had discriminated against complainant by inquiring about his arrest record and terminating his employment for failure to furnish information, and the Appeal Board affirmed. In a review proceeding pursuant to Executive Law § 298, the Appellate Division, two justices dissenting, vacated the Appeal Board order and dismissed the complaint, concluding that the Executive Law does not preclude an employer from requiring verification of the final disposition of a criminal charge which has been discovered by legal means. The court, moreover, found that it was unclear from the record whether complainant was actually discharged because of poor attendance. We now hold that, under the particular facts presented here, complainant’s discharge was not a violation of the Executive Law, and we therefore affirm.

An investigation into the qualifications and background of a new employee within the civil service of this State is entirely appropriate and indeed mandated by law (see generally, Civil Service Law §§ 50, 95, and regulations of the Civil Service Department, particularly 4 NYCRR 3.2 [c]). When Kings Park’s interviewers, in April 1976, asked complainant whether he had ever been arrested there was nothing unlawful about such an inquiry. (Such an inquiry would, of course, have been unlawful after September 1, 1976, pursuant to Executive Law § 296 [16].) Complainant informed them that the charge against him had been resolved by an adjournment in contemplation of dismissal, but the results of the background investigation conducted by the Department of Civil Service suggested that complainant had lied to his prospective employer. In these narrow circumstances, when complainant refused to cooperate in eliminating the discrepancy between information lawfully obtained from him at the interview and facts learned in the background investigation report, Kings Park had reasonable and permissible grounds for terminating his probationary employment.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur; Judge Titone taking no part. Order affirmed, with costs, in a memorandum.

       In pertinent part, Executive Law § 296 (16) provides: "It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, in connection with the * * * employment [of] such individual.”


text:
    The People of the State of New York, Appellant, v Brunce Smith, Also Known as Bruce Smith, Nat Smith and Nathaniel Dickerson, Respondent.
    Decided October 24, 1985

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Tracey J. Miller of counsel), for appellant.

      Juliet Neisser for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was present when his case was assigned to Trial Part and was made aware by the assigning judge’s instructions that should the parties run out of witnesses at the pretrial hearing, requiring that the hearing be adjourned, the trial was to begin at that point, or, in any event, immediately following the conclusion of the hearing. Thus, by absconding after the third day of the hearing, defendant forfeited his right to be present at trial (People v Sanchez, 65 NY2d 436).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Campbell Sales Company, Appellant, v New York State Tax Commission, Respondent.
    Submitted August 26, 1985;
    decided October 24, 1985
   Motion for leave to appeal dismissed upon the ground that movant is not aggrieved by the determination of the Appellate Division (CPLR 5511).

Judge Simons taking no part.


text:
    Carmelo Giuffre, Respondent, v Carmin Sarbello et al., Appellants.
    Submitted August 26, 1985;
    decided October 24, 1985
   Motion to dismiss appeal denied. Motion for leave to appeal denied as unnecessary (see, Dalyrmple v Shults Chevrolet, 39 NY2d 795).

Judge Simons taking no part.


text:
    Harvey Levine et al., Respondents, v Carmin Sarbello et al., Appellants, et al., Defendant, and Carmelo Giuffre et al., Respondents.
    Submitted August 26, 1985;
    decided October 24, 1985
   Motion to dismiss appeal denied. Motion for leave to appeal denied as unnecessary (see, Dalyrmple v Shults Chevrolet, 39 NY2d 795).

Judge Simons taking no part.


text:
    In the Matter of Harold Taines, Respondent; Gene Barry One Hour Photo Process, Inc., Appellant. Harold Taines, Respondent, v Gene Barry One Hour Photo Process, Inc., Appellant.
    Argued October 14, 1985;
    decided October 24, 1985
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division was not on a question of law (CPLR 5601 [a] [i]).

Judge Alexander taking no part.


text:
    Savings Bank of Utica, Appellant, v New York State Tax Commission, Respondent.
    Argued October 8, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Thomas F. O’Donnell for appellant.

      Robert Abrams, Attorney-General (Michael S. Buskos, Robert Hermann and Peter H Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice John H. Doerr at the Appellate Division (107 AD2d 205).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone. Taking no part: Judge Simons.


text:
    In the Matter of Leopold Tomlinson, Appellant, v Benjamin Ward, as Commissioner of the Department of Correction of the City of New York, et al., Respondents.
    Argued October 10, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Raymond E. Kerno for appellant.

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

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (110 AD2d 537). We add only that the extension of the probationary period, under the circumstances of this case, is not a penalty as contemplated by Judiciary Law § 519.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone. Taking no part: Judge Simons.


text:
    In the Matter of Ulysses T., Jr. Monroe County Department of Social Services, Respondent; Ulysses T., Sr., Appellant.
    Argued October 11, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Joan S. Kohout of counsel), for appellant.

      Edward L. D’Amico and Milo Tomanovich for respondent.

      John J. Rivoli, Law Guardian.

   OPINION OF THE COURT

Order of the Appellate Division appealed from, pursuant to CPLR 5601 (d), and order of the Appellate Division brought up for review affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (87 AD2d 998; see also, CPLR 5501 [b]).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone. Taking no part: Judge Simons.


text:
    In the Matter of Lynn Augenblick, Petitioner, and Maxwell Glantz et al., Appellants, v Town of Cortlandt et al., Respondents.
    Argued October 8, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Walter I. Seligsohn for appellants.

      Thomas F. Wood for Town of Cortlandt, respondent.

      Donald Tirschwell and Donna Riefberg-Cohen for Montrose Concrete Products Corp., respondent.
   OPINION OF THE COURT

Order reversed, with costs, and petition granted for the reasons stated in the dissenting memorandum by Justice Leon D. Lazer at the Appellate Division (104 AD2d 806, 811-815). Respondents waived their Statute of Limitations defense by failing to plead it in their answer or by appropriate motion (CPLR 7804 [f]; see also, CPLR 3211 [a]).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone. Taking no part: Judge Simons.


text:
    Karen R. Baumis, as Executrix of Charles F. Baumis, Deceased, Appellant, v General Motors Corporation et al., Respondents.
    Argued October 9, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      James W. Cooper and Ronald L. Newell for appellant.

      Arthur H. Thorn for General Motors Corporation, respondent.

      Peter A. Firth for Bruce Buick, Inc., respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (106 AD2d 789).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone. Taking no part: Judge Simons.


text:
    Trump-Equitable Fifth Avenue Company, Appellant, v H.R.H. Construction Corporation et al., Respondents.
    Argued October 9, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Thomas M. Smith for appellant.

      Jozef K. Goscilo for H.R.H. Construction Corporation, respondent.

      F. V. Mina for Dic-Underhill Industries, respondent.

      William H. Morris and Gerald P. McMorrow for Alumni Plumbing and Heating Corporation, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Presiding Justice Francis T. Murphy, Jr., at the Appellate Division (106 AD2d 242).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Alexander and Titone. Taking no part: Judges Simons and Kaye.