text:
    William Coleman et al., Respondents, v Westchester Street Transportation Co., Inc., Appellant.
    Decided September 9, 1982

      APPEARANCES OF COUNSEL

      Vincent P. Nesci for appellant.

      Edward B. Willing for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, motion to strike affirmative defense denied and question certified answered in the negative. The local law creating the transit system (Local Laws, 1969, No. 8 of Westchester County; Local Laws, 1970, No. 11 of Westchester County) imposed upon the county a statutory duty to operate it (John Hancock Mut. Life Ins. Co. v Pink, 276 NY 421; Collier Adv. Serv. v City of New York, 32 F Supp 870). The imposition of such duty created an obligation that the county indemnify defendant for any damages recovered against it (General Municipal Law, § 50-b, subd 1) and therefore a notice of claim was required (General Municipal Law, § 50-e, subd 1, par [b]).

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Mary S. Burch, Appellant, v Edward Ahearn et al., Respondents. (And Another Action.)
    Submitted August 30, 1982
    decided September 9, 1982
   Motion for a stay denied.

Chief Judge Cooke taking no part.


text:
    Adrienne Kaltenbach, Respondent, v Kurt Kaltenbach, Appellant.
    Decided September 9, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 38, p 156).

Judge Meyer taking no part.


text:
    In the Matter of Alexander Karten, Appellant, v New York State Liquor Authority, Respondent.
    Submitted August 30, 1982
    decided September 9, 1982
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Judge Fuchsberg taking no part.


text:
    Trajam Realty Corporation, Respondent, v Abraham J. Hirschfeld et al., Appellants.
    Submitted August 30, 1982
    decided September 9, 1982
   Motion for a stay denied.

Judges Fuchsberg and Meyer taking no part.


text:
    Jose Velez et al., Appellants, v Barry Feinstein et al., Respondents.
    Submitted August 2, 1982
    decided September 9, 1982
   Motion, insofar as it seeks leave to appeal as against defendant trustees, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal as against the remaining defendants, denied. Twenty dollars costs and necessary reproduction disbursements to all respondents filing multiple copies of opposing papers.


text:
    In the Matter of Barbara A. Baldino et al., Appellants, v Board of Elections of the County of Nassau et al., Respondents. (And Another Proceeding.)
    Submitted September 9, 1982
    decided September 9, 1982
   Motion for leave to appeal denied.

Judge Wachtler taking no part.


text:
    In the Matter of Nestor J. Seda, Jr., Respondent, et al., Petitioners, v Martin Richards et al., Respondents, and Reuben Bradford, Appellant.
    Argued September 9, 1982
    decided September 10, 1982

      APPEARANCES OF COUNSEL

      Alexander Potruch and Joseph F. Lisa for appellant.

      Andrew Schnier for petitioner-respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum opinion at the Appellate Division.

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


text:
    In the Matter of Raymond R. Walker, Appellant, v George D. Salerno et al., Constituting the Board of Elections of the State of New York, Respondents.
    Argued September 10, 1982
    decided September 10, 1982

      APPEARANCES OF COUNSEL

      Michael Perley for appellant.

      Stanley L. Zalen and Thomas P. Zolezzi for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (89 AD2d 1031).

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


text:
    In the Matter of Steven J. Frome et al., Appellants, v Board of Elections of Nassau County et al., Respondents.
    Argued September 9, 1982
    decided September 10, 1982

      APPEARANCES OF COUNSEL

      Pamela Schwartz Frome for appellants.

      Edward G. McCabe, County Attorney (Arthur Eiberson of counsel), for Board of Elections of Nassau County, respondent.

      Steven R. Schlesinger for Allan L. Winick and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court for its consideration of the application of respondents in our court for a direction to the board of elections to provide the enrolled Democratic voters in Nassau County an opportunity to write in the names of candidates for the offices at issue (cf. Matter of Brown v Ulster County Bd. of Elections, 48 NY2d 614).

The designation of the “city or town” in the statement of a witness to a designating petition is a matter of the legislatively mandated content of the petition, i.e., a matter of substance and not of form. It follows then that omission to include the prescribed information is fatal (Matter of Hutson v Bass, 54 NY2d 772; Matter of Alamo v Black, 51 NY2d 716; Matter of Higby v Mahoney, 48 NY2d 15).

Chief Judge Cooke and Judges Jasen, Jones, Fuchs-berg, Sweeney* and Kane concur; Judges Gabrielli, Wachtler and Meyer taking no part.

Order reversed, without costs, designating petitions invalidated and matter remitted to Supreme Court, Nassau County, for further proceedings in accordance with the memorandum herein.

       Designated pursuant to section 2 of article VI of the State Constitution.


text:
    In the Matter of Sheldon Markel, Appellant, v Philip D. Smolinski et al., Respondents.
    Argued September 9, 1982
    decided September 10, 1982

      APPEARANCES OF COUNSEL

      Howard Lipman and Philip M. Marshall for appellant.

      Eugene F. Pigott, Jr., County Attorney {Roger D. Avent of counsel), for Philip D. Smolinski and another, respondents.

      Dennis E. Ward for Mary R. Albarella, respondent.
   OPINION of the court

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (89 AD2d 1052).

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


text:
    In the Matter of Liliane Thomas, Appellant, v Lew M. Simon et al., Respondents.
    Argued September 9, 1982
    decided September 10, 1982

      APPEARANCES OF COUNSEL

      Barry M. Goldstein and Alexander Potruch for appellant.

      David H. Perlman for respondents.
   OPINION OF THE COURT

Order affirmed, without costs. The petitioner failed to meet her burden of establishing that the designating petition was permeated with fraud.

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


author: Fuchsberg, J.

text:
    Erastus Corning et al., Appellants, v Board of Elections of Albany County et al., Respondents. Board of Elections of City of New York et al., Intervenors-Respondents. Anthony Barone, Individually and as Chairman of the Democratic Committee of the County of Chautauqua, et al., Respondents, v Hugh L. Carey, as Governor of the State of New York, et al., Appellants.
    Argued September 9, 1982
    decided September 10, 1982

      APPEARANCES OF COUNSEL

      Fabian G. Palomino for Erastus Corning and others, appellants in the first above-entitled matter.

      John D. Doyle, County Attorney (Joseph C. Pilato of counsel), for Board of Elections of Monroe County and others, respondents in the first above-entitled matter.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Ronald E. Sternberg of counsel), for intervenors-respondents in the first above-entitled matter.

      Robert Abrams, Attorney-General (Richard Rifkin and Michael S. Buskus of counsel), respondent pro se, and for State Board of Elections, respondent, in the first above-entitled matter and for appellants in the second above-entitled matter.

      John B. Walsh for Anthony Barone, respondent in the second above-entitled matter.

      Irving Fudeman for Raymond Gallagher, respondent in the second above-entitled matter.
   OPINION OF THE COURT

In Matter of Corning v Board of Elections of Albany County: Order affirmed, without costs, for reasons stated in the Per Curiam opinion at the Appellate Division.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer. Judge Fuchsberg dissents and votes to modify in an opinion. Judge Gabrielli taking no part.

In Barone v Carey: Judgment, insofar as appealed from, reversed, without costs, and subdivision 2 of section 8-100 of the Election Law declared constitutional.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer. Judge Fuchsberg dissents and votes to affirm in an opinion. Judge Gabrielli taking no part.

Fuchsberg, J.

(dissenting). I believe that the judgment in the case brought by Anthony Barone, cháirman of the Democratic Committee of the County of Chautauqua and Raymond F. Gallagher, candidate for the Democratic nomination for State Comptroller, should be affirmed and that the order of the Appellate Division, Third Department, in the case brought by Erastus Corning, Mayor of the City of Albany, and five other registered voters, should be modified to declare the first clause of subdivision 2 of section 8-100 of the Election Law unconstitutional.

This would leave standing the balance of section 8-100 of the Election Law, under which the polls in all 62 counties of the State are required to be open for voting on election days between the hours of 6 a.m. and 9 p.m. At present, instead, while the polls are available in primary elections to our citizens in 10 counties during these hours, they are available to the citizens of the other 52 counties only for the 40% shorter period of between noon and 9 p.m. The change I would thus effect would mean that primary elections, the ones which are the concern of the two cases before us now, from today on would provide all voters in the State with the fuller opportunity to participate now enjoyed only by some.

By thus wiping out the existing discrimination against the voters of most of our counties, we would be acting in accord with the “equal protection” due all our people in the furtherance and preservation of one of their most precious and fundamental privileges, that of suffrage. While so serving the demands, as I understand them, of our Constitutions, Federal and State, on a purely pragmatic level we would also increase voter participation, a matter of repeated and continuing concern to all those interested in maintaining our government as a viable democracy. It hardly needs saying that unless voter lethargy is rolled back a free society cannot hope to continue to flourish. Indeed, it has been stated authoritatively that the ballot box is the ultimate safeguard of the civic and political rights of all Americans (Reynolds v Sims, 337 US 533, 561-562).

To be stressed too is that we deal here with much more than a demographically classified right to equality in entitlement to monetary benefits (see, e.g., Weissman v Evans, 56 NY2d 458; Dandridge v Williams, 397 US 471). It is now a long time since the Supreme Court, in West Coast Hotel Co. v Parrish (300 US 379), turned our constitutional jurisprudence away from the doctrine of Lochner v New York (198 US 45). Since then, the courts have maintained an almost complete dichotomy between legislation which affects “personal” rights, including of course the crucial one involved here, and those which are characterized as “property” rights.

It is for no lesser reasons that the inroads produced by subdivision 2 must be subjected to the strict scrutiny test, which, simply stated, places the burden on the State itself to demonstrate both that a compelling State interest is served by a classification such as the one we confront here and that the classification constitutes the least drastic means available to satisfy that interest (Illinois Elections Bd. v Socialist Workers Party, 440 US 173; see, generally, Tribe, The Supreme Court, 1972 Term — Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv L Rev 1; San Antonio School Dist. v Rodriguez, 411 US 1, 98 et seq. [Marshall, J., dissenting]; see, also, Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court — A Model for a Newer Equal Protection, 86 Harv L Rev 1).

Yet, on the records before us, as more fully described in the opinions of Justice Samuel L. Green in the Barone case (113 Misc 2d 711) and of Justice Lawrence E. Kahn in the Corning case (113 Misc 2d 707), the State has satisfied neither burden. Essentially, it has sought to justify the variation in voting hours on grounds, not unquestioned factually, which, at best, amount to no more than convenience and economy. Its sole explanation for circumscribing the voting hours for most of our State is that failure to do so may impose some financial burden for the additional staffing of the polls. In any event, economic considerations such as this must yield when a fundamental right is at stake (Shapiro v Thompson, 394 US 618, 633). As this court has had occasion to put it, in such circumstances “spectres of assertedly prohibitive cost” are to be disregarded (Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 90).

It seems clear, therefore, that the minimal rational basis test, to which the Appellate Division in the Corning case was reduced to explain the result it reached, is inappropos.

It also follows that the Barone judgment should be affirmed and the Appellate Division’s order in Corning modified to declare subdivision 2 of section 8-100 of the Election Law unconstitutional.

In Matter of Corning v Board of Elections of Albany County: Order affirmed, etc.

In Barone v Carey: Judgment, insofar as appealed from, reversed, etc.

       Ironically, the legislative history of section 8-100 has evaluated any added costs for expanding poll hours as relatively “minimal” (L 1981, ch 628; L 1982, ch 97).


text:
    In the Matter of Charles Gadsen, Petitioner, v Board of Elections of the City of New York, Respondent. In the Matter of Elaine R. Berlin et al., Respondents, v Board of Elections of the City of New York, Respondent, and Wilbert A. Kirby, Appellant. (And Another Proceeding.)
    Argued September 9, 1982
    decided September 10, 1982

      APPEARANCES OF COUNSEL

      Charles O. Guldi for appellant.

      Douglas A. Kellner for Elaine R Berlin and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with Special Term and the Appellate Division that the validation proceeding was jurisdictionally defective because of the candidate’s failure to name and serve all those who filed objections to the designating petition (Matter of Wein v Molinari, 51 NY2d 717; Matter of Cappellazzi v Toto, 41 NY2d 1050). This is not altered by the fact that the attorneys who represented unnamed and unserved parties did appear for them in the invalidation proceeding with which the one to validate was consolidated (Matter of Wein v Molinari, supra). Nor does the stipulation as to the validity and number of signatures constitute a waiver of the jurisdictional point since the stipulation expressly provided that it remained subject to the “claim that there is no jurisdiction over two of the objectors in the validation proceeding”. Accordingly, appellant was left with no procedural vehicle by which to reinstate the signatures held invalid by the board of elections (Matter of Suarez v Sadowski, 48 NY2d 620, 621).

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Aaron D. Maslow et al., Respondents-Appellants, v Mary C. Tobin et al., Appellants-Respondents, et al., Respondents.
    Submitted September 10, 1982
    decided September 10, 1982
   On the court’s own motion, appeal taken as of right by respondents-appellants dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution, and an appeal does not lie pursuant to a stipulation for judgment absolute since the hearing ordered is not a new hearing within the meaning of CPLR 5601 (subd [c]). Motion for leave to appeal by appellants-respondents denied.


text:
    In the Matter of Thelma Tomasino, Appellant, v New York State Employees’ Retirement System, Respondent.
    Decided September 14, 1982

      APPEARANCES OF COUNSEL

      Ralph A. Siciliano for appellant.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs. The determination of the State Comptroller denying petitioner’s application for an annulment of decedent’s statutorily prescribed retirement option and for a designation óf herself as beneficiary under another option was not arbitrary or capricious. Ortelere v Teachers’ Retirement Bd. of City of N. Y. (25 NY2d 196) does not require a different result. In Ortelere, we held that a mentally incompetent’s affirmative choice of a retirement option could be set aside under the circumstances of that case. Decedent in the present case, however, made no affirmative choice of a retirement option. This lack of choice may not now be set aside (see McCarthy v Levitt, 59 AD2d 952, mot for lv to app den 43 NY2d 647).

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


text:
    In the Matter of Jack D. Agress et al., Appellants, v Board of Education of the City of New York, Respondent.
    Decided September 14, 1982

      APPEARANCES OF COUNSEL

      Benjamin M. Zelman for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (86 AD2d 869).

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


text:
    Cameron K. Wehringer, Appellant, v Standard Security Life Insurance Company of New York, Respondent.
    Decided September 14, 1982

      APPEARANCES OF COUNSEL

      Cameron K. Wehringer, appellant pro se.

      Seymour J. Ugelow for respondent.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), the order of the Appellate Division should be affirmed, with costs.

The complaint alleges no relationship, contractual or otherwise, giving rise to a duty on the part of the defendant, breach of which could furnish a basis for tort liability (see Albemarle Theatre v Bayberry Realty Corp., 27 AD2d 172, 176; cf. North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 179), nor does it allege that the insurance policy issued to plaintiff did not permit a premium increase for issuance of a separate policy to plaintiff’s ex-wife (cf. Sciasscia v Fredburn Constr. Corp., 248 App Div 608; Ippisch v Moricz-Smith, 1 Misc 2d 120, 124, revd on other grounds 1 AD2d 968). A threat to do what one has a legal right to do is not actionable (30 East End v World Steel Prods. Corp., 110 NYS2d 754). Moreover, absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty (see Marvex Processing & Finishing Corp. v Allendale Mut. Ins. Co., 91 Misc 2d 683, affd 60 AD2d 800; Grimm v Bam, 22 Misc 2d 982; PJI 2:284).

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

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


text:
    Frank Dzurenko, Appellant, v Jordache, Inc., et al., Respondents, et al., Defendant.
    Decided September 14, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of Ariel La Croix, Respondent, v Richard Deyo, as Administrator of the Estate of Debra C. Deyo, Deceased, Appellant.

      Submitted July 19, 1982
    decided September 14, 1982
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).

Chief Judge Cooke taking no part.


text:
    In the Matter of Ariel La Croix, Respondent, v Richard Deyo, as Administrator of the Estate of Debra C. Deyo, Deceased, Appellant.
    Submitted August 16, 1982
    decided September 14, 1982
   Motion to vacate CPLR 5519 (subd e) stay of the Appellate Division order of affirmance granted. Motion to stay July 29, 1982 Appellate Division order dismissed as academic.

Chief Judge Cooke taking no part.


text:
    In the Matter of Jay Lewin, Appellant, v New York City Conciliation and Appeals Board, Respondent.
    Decided September 16, 1982

      APPEARANCES OF COUNSEL

      Jay Lewin, appellant pro se.

      Ellis S. Franke and Cullen S. McVoy for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. The determination of the board is neither arbitrary nor capricious nor without rational basis.

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


text:
    The People of the State of New York, Respondent, v Louis Stone, True Name Eugene Merritt, Appellant.
    Decided September 16, 1982

      APPEARANCES OF COUNSEL

      William E. Hellerstein and Debra Marcus for appellant.

      Robert M. Morgenthau, District Attorney {Julie Copeland of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed. The factual finding of the courts below, based as it is upon the reasonable inferences that may be drawn from the record, will not be disturbed by this court (People v Wharton, 46 NY2d 924).

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


text:
    The People of the State of New York, Respondent, v Robert Mendez, Appellant.
    Decided September 16, 1982

      APPEARANCES OF COUNSEL

      William E. Hellerstein and Barry S. Stendig for appellant.

      Mario Merola, District Attorney {Robert LeFevre of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed and a new trial ordered (see People v Melendez, 55 NY2d 445).

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


text:
    Meritum Corporation, Appellant-Respondent, v Lawyers Title Insurance Corporation, Respondent-Appellant.
    Decided September 16, 1982

      APPEARANCES OF COUNSEL

      Issac Anolic for appellant-respondent.

      Seymour Karpas for respondent-appellant.
   OPINION of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in dismissing the complaint pursuant to CPLR 327.

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


text:
    Reuben S. Seguritan, as Executor of Christeta B. Santiago, Deceased, Appellant, v Northwest Airlines, Inc., Respondent.
    Decided September 16, 1982

      APPEARANCES OF COUNSEL

      Rudolph V. Pino, Jr., for appellant.

      John M. Downing for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (86 AD2d 658).

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


text:
    The People of the State of New York ex rel. Ronald Howser, Respondent, v New York State Division of Parole et al., Appellants.
    Decided September 16, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Burton Herman of counsel), for appellant.

      Jody Leight and William E. Hellerstein for respondent.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, without costs, for the reasons stated in the dissenting-in-part memorandum of Justice Max Bloom at the Appellate Division (86 AD2d 831, 832) and matter remitted to Supreme Court, Bronx County, for a hearing in accordance with that dissenting memorandum.

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


text:
    Chemical Bank, Respondent, v Queen Wire & Nail Incorporated, Defendant, and Louis W. Kietzman et al., Appellants.
    Submitted July 12, 1982
    decided September 16, 1982
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which affirmed an order denying defendants’ motion to resettle the record on appeal, dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 39, p 159); motion for leave to appeal otherwise denied. Twenty dollars costs and necessary reproduction disbursements to plaintiff-respondent.


text:
    52 East 19th Street Co., Petitioner, v Quintino Tesciuba, Respondent, and Anthony B. Cataldo, Appellant.
    Submitted August 23, 1982
    decided September 16, 1982
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]).


text:
    Anagyros Mennis et al., Respondents, v Westchester County Playland Commission, Defendant, and Westchester County, Defendant and Third-Party Plaintiff-Appellant. Amentas Decorators, Inc., Third-Party Defendant-Respondent. (Action No. 1.) Leonidas Mennis, as Administrator of the Estate of Antonios Mennis, Deceased, Respondent, v County of Westchester, Defendant and Third-Party Plaintiff-Appellant. Amentas Decorators, Inc., Third-Party Defendant-Respondent. (Action No. 2.)
    Submitted June 28, 1982
    decided September 16, 1982
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground it is untimely made (CPLR 5513, subd [b]; 22 NYCRR 500.9 [c] [1]).


text:
    In the Matter of the Arbitration between New York Typographical Union No. 6, Respondent, and Printers League Section, Printing Industries of Metropolitan, New York, Inc., Respondent. Haber Typographers, Inc., Appellant.
    Submitted July 19, 1982
    decided September 16, 1982
   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 (Cohen and Karger, Powers of the New York Court of Appeals, § 11, pp 44-45).


text:
    The People of the State of New York, Respondent, v Richard Koziuk, Appellant.
    Argued September 3, 1982
    decided October 5, 1982

      APPEARANCES OF COUNSEL

      Robert R. Mullery, Michael J. Obús and Matthew Muraskin for appellant.

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

Memorandum.

Order of the Appellate Division should be affirmed.

Assuming, arguendo, that the trial court’s definition of accomplice and its charge that witness Comacho was an accomplice as a matter of law could have been understood as determining that defendant participated in the crime charged, the court’s subsequent instruction on the limited use of accomplice testimony in the jury’s determination acted to dispel any misconception the jury may have had regarding its function in determining the defendant’s guilt. In the context of the complete charge, the trial court fairly advised the jurors that there could not be a conviction solely on the testimony of an accomplice, but that there had to be other evidence connecting the defendant with the commission of the crime charged. Under these circumstances, it cannot be said that the trial court, in so instructing the jury, thereby usurped their fact-finding function.

Defendant’s additional arguments have been considered and we find them to be without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Herman Wilson, Appellant.
    Argued September 8, 1982
    decided October 5, 1982

      APPEARANCES OF COUNSEL

      Susan C. Thon and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Anne Beane Rudman, Mark Dwyer and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In light of the suppression court’s determination that the Transit Authority police had reasonable suspicion to stop the defendant but lacked probable cause to detain him, we are required to decide whether subsequently secured identifications and statements must be suppressed as “fruits of the poisonous tree”. (United States v Crews, 445 US 463; Wong Sun v United States, 371 US 471.) We conclude that the “exploitation of the illegality” was sufficiently attenuated by the intervening time and investigation that suppression of the lineup identification and subsequent statements made by the defendant was not required. (Wong Sun v United States, supra.)

Even taken in the light most favorable to the defendant, it is clear that the police obtained merely his name, address and a photograph as a result of the illegal detention. When the police, acting on the basis of reasonable suspicion, stop a person, they are entitled to make reasonable inquiry as to the person’s identity. (CPL 140.50, subd 1.) Such an inquiry, in and of itself, constitutes no constitutional violation. (Terry v Ohio, 392 US 1; People v De Bour, 40 NY2d 210, 217-220.) We conclude that, on the facts of this case, the photograph, although later used in a valid photo array, but not offered in evidence, constituted nothing more than identification information.

During the intervening 10-day period between the illegal detention and the arrest, the Transit Authority police continued their investigation. As part of this investigation, the defendant was asked to participate in a lineup. He was fully informed of his rights and agreed to co-operate. Thus, the facts of this case clearly indicate that any taint flowing from the initial unlawful detention was attenuated by the intervening investigation.

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

Order affirmed in a memorandum.


text:
    Guy J. Velella, Appellant-Respondent, v Michael R. Benedetto, Respondent-Appellant.
    Argued September 7, 1982
    decided October 5, 1982

      APPEARANCES OF COUNSEL

      William F. Larkin and Abraham Friedman for appellant-respondent.

      Alexander A. Delle Cese for respondent-appellant.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the opinion by Justice Leonard H. Sandler at the Appellate Division (83 AD2d 465) and because defendant as the prevailing party in that court was not entitled as a matter of law to an award of costs and disbursements (CPLR 8107).

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


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    Outdoor Amusement Business Association et al., Appellants, v State Tax Commission, Respondent.
    Argued August 30, 1982
    decided October 5, 1982

      APPEARANCES OF COUNSEL

      Whitney W. Mallam and Richard N. Kirchgraber for appellants.

      Robert Abrams, Attorney-General (Francis V. Dow and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and judgment of Supreme Court, Erie County, reinstated for the reasons stated in the dissenting memorandum of Justice Stewart F. Hancock, Jr., at the Appellate Division (84 AD2d 950, 952).

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


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    In the Matter of American Broadcasting Companies, Inc., Appellant, v Tax Commission of the City of New York et al., Respondents.
    Argued September 2, 1982
    decided October 5, 1982

      APPEARANCES OF COUNSEL

      Seymour M. Klein and Joel R. Marcus for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Rochelle M. Corson and Edith I. Spivack of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. The findings of the Appellate Division more nearly comport with the weight of the evidence.

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


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    American Theatre Press, Inc., Appellant, v Tax Commission of the State of New York et al., Respondents.
    Argued August 30, 1982
    decided October 5, 1982

      APPEARANCES OF COUNSEL

      Donald S. Snider and Gerald M. Levine for appellant.

      Robert Abrams, Attorney-General (.Paul Milbauer and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division erred in placing its decision on the shopping paper exemption of subdivision (i) of section 1115 of the Tax Law. The fact that by definition a shopping paper does not include a theatre program does not preclude exemption of Playbill under paragraph (5) of subdivision (a) of the section excluding “periodicals”, even though it does include such a program. However, the definition of “periodical” in the regulations applicable to the period in question required that Playbill be “of general availability to the public.”

Plaintiff concedes that during the period in question Playbill carried no notice of subscription availability and has presented no evidence of general availability other than that some back issues were sold and some paid and unpaid subscriptions were entered by persons or organizations which sought out the right to do so. Notwithstanding that some million copies per month were distributed without charge to persons attending the theatres with which Playbill had agreements granting it the exclusive right to furnish theatre programs, we agree with so much of the Appellate Division memorandum as concluded that it was not “of general availability to the public” (cf. Matter of Business Statistics Organization v Joseph, 299 NY 443).

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

Order affirmed, with costs, in a memorandum.


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    Batavia Kill Watershed District in the County of Greene, Respondent, v Charles O. Desch, Inc., et al., Appellants.
    Argued September 2, 1982
    decided October 5, 1982

      APPEARANCES OF COUNSEL

      Leslie F. Couch for appellants.

      Larry F. Gardner and Walter J. Heffernan for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by former Justice J. Clarence Herlihy at the Appellate Division (83 AD2d 97). Question certified answered in the affirmative.

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


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    The People of the State of New York, Respondent, v Gino Cobos, Appellant.
    Argued August 31, 1982
    decided October 5, 1982

      APPEARANCES OF COUNSEL

      Edward J. Nowak and Howard A. Bloch for appellant.

      Donald O. Chesworth, Jr., District Attorney {Kenneth R. Fisher and Sheldon Boyce of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant argues that the witness Destino was an accomplice as a matter of law in the intentional murder of James Amico. The People counter that though Destino was an accomplice as a matter of law in the earlier assault of and attempt to rob Amico, the murder was a later and separate crime and, in any event, the issue was not preserved. Defendant’s attorney moved for a trial order of dismissal at the close of the People’s case on the ground of insufficiency of Destino’s testimony because he was an accomplice as a matter of law and was granted an exception by the Trial Judge when he ruled to the contrary on the intentional murder count. He also submitted a written request for a charge that Destino was an accomplice as a matter of law at the end of the trial. Clearly, therefore, the issue was brought to the attention of the Trial Judge in ways that pinpointed the legal question (People v Le Mieux, 51 NY2d 981, 982; People v Cona, 49 NY2d 26, 34; see CPL 470.05). Nor can it be said that by requesting the addition of a sentence to the accomplice as a matter of fact charge given by the court, he waived the legal issue previously twice raised.

Though the question was preserved, we agree with the Trial Judge that under the circumstances of this case Destino could not be said to have been an accomplice as a matter of law to the intentional murder charge. The corroboration rule established by CPL 60.22 applies, according to subdivision 2, to a witness who “according to evidence adduced in such action, may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.” Thus, defendant would be entitled to a charge that Destino was an accomplice as a matter of law only if on the evidence the jury could reasonably reach- no other conclusion than that he participated in an offense within that definition. Here that is not the case.

Nothing connects Destino to the intentional murder other than the use of his car. As to that, the only evidence adduced is that the car was provided so that Amico could be taken to a hospital, and that it was not until four hours later that Destino learned that the others (with whom he had been involved as the driver in the robbery attempt and assault upon Amico) had dumped Amico in the Barge Canal instead of taking him to the hospital. Had the loan of the car followed upon the heels of the assault there might be a basis for defendant’s argument. Here, however, there was a significant time interval, the agreement by Destino to allow use of his car was made so far as appears for a completely different purpose, and there is no evidence suggesting that the intention to murder rather than assist Amico was formed until after the car was loaned. Nor can Destino’s participation in removing bloodstains from the interior of his car after the murder make him an accomplice (Grunewald v United States, 353 US 391, 405-406; ALI Model Penal Code [Tent Draft No. 10], § 5.03, p 152).

No more can Destino be said as a matter of law to have participated in an offense based upon the same or some of the same facts or conduct which constitute the offense charged by reason of his part in the earlier robbery and assault. The offense charged is intentional murder in that defendant “caused the death of said James Amico by throwing him into the Barge Canal and causing him to drown.” None of the facts or conduct involved in the robbery attempt and assault are also involved in that charge. People v Cona (49 NY2d 26, supra) is not to the contrary for it involved “an ongoing criminal enterprise pursuant to which police officers solicited bribes from gamblers on a regular basis in return for ‘protection’ ” (49 NY2d, at p 35). Here there is nothing in the “evidence adduced in such action” (which is what CPL 60.22 requires) that requires a finding that the murder was likewise part of an ongoing enterprise. Nor do People v Dorta (46 NY2d 818); People v Arce (42 NY2d 179) or People v Jenner (29 NY2d 695) help defendant. Arce and Jenner each involved but one crime, not separate crimes, and Dorta appears to be authority in favor of rather than against the result here reached.

Defendant’s remaining arguments furnish no greater basis for reversal. The Trial Judge’s refusal to allow cross-examination of Destino concerning the sentence he could have received had a plea bargain not been made for his testimony was not error (People v De Vito, 56 NY2d 846, 847). The denial of a severance of trial was on the ground of prematurity. By failing thereafter to renew the objection, defendant’s counsel waived it. No objection to the accomplice charge as originally given was made; error in it is thus beyond our review (People v Johnson, 47 NY2d 124). To the extent that a request was addressed to the supplemental charge, it constituted a concurrence in the charge now claimed to be erroneous and, therefore, constitutes no due process violation (People v Dekle, 56 NY2d 835).

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

Order affirmed in a memorandum.


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    In the Matter of Health Insurance Plan of Greater New York, Appellant, v Edward V. Sullivan, as Assessor of the Town of Brookhaven, et al., Respondents, and Three Village Central Schools of the Towns of Brookhaven and Smithtown, Intervenor-Respondent.
    Argued September 7, 1982
    decided October 5, 1982

      APPEARANCES OF COUNSEL

      Bruce H. Schneider, Charles G. Moerdler and Edward Tessler for appellant.

      Benjamin L. Herzweig for respondents.
   OPINION OF THE COURT

Memorandum.

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

The fact that section 486 of the Real Property Tax Law does not include a health service corporation in the corporations it lists as “entitled to the exemption provided in the insurance law” does not exclude such a corporation from the exemption granted by subdivision 3 of section 251 of the Insurance Law, which expressly includes “a health service corporation” and provides that it “shall be exempt from every state, county, municipal and school tax.”

No more helpful to respondents are sections 256 and 260 of the Insurance Law or section 486-a of the Real Property Tax Law. The fact that subdivision 1 of section 256 of the Insurance Law proscribes investment in real estate by such a corporation except as authorized pursuant to subdivision 1 of section 260 is irrelevant to the determination of taxability. Petitioner’s purchase of the real property in question was authorized by the Superintendent of Insurance. Any question of the propriety of its holding the property in a vacant state for 12 years is for the Superintendent of Insurance, not the taxing authorities, and does not authorize the latter to return the property to the assessment rolls on the theory that because it is not being used it is no longer properly held by petitioner.

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

Order reversed, etc.


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    Richard L. Beesemyer, Appellant, v Mary T. Beesemyer, Respondent.
    Decided October 5, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification at the Appellate Division is not in a “respect which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


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    The People of the State of New York, Appellant, v Calvin Davis and Benjamin Johnson, Respondents.
    Submitted August 30, 1982
    decided October 5, 1982
   Motion to dismiss the appeal denied.


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    In the Matter of the Estate of William J. Fello, Deceased. Dorothy Fello, Appellant; Anthony Mazzarella et al., Respondents.
    Submitted August 2, 1982
    decided October 5, 1982
   Motion to dismiss appeal denied.


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    Newin Corporation et al., Appellants, v Hartford Accident and Indemnity Company et al., Respondents, et al., Defendant.
    Decided October 5, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the dissent at the Appellate Division is not on a question of law in favor of the appellants (CPLR 5601, subd [a], par [i]).


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    In the Matter of the Power Authority of the State of New York, Respondent, v New York State Department of Environmental Conservation, Appellant, and Catskill Center for Conservation and Development, Inc., et al., Intervenors-Appellants.
    Submitted September 7, 1982
    decided October 5, 1982
   Motion to dismiss the appeals denied.


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    In the Matter of Roger Van Deusen, Appellant, v Warren E. Zittell, as Judge of the County Court of Columbia County, et al., Respondents.
    Decided October 5, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that there is no modification at the Appellate Division (CPLR 5601, subd [a], par [iii]) and no substantial constitutional question is directly involved (CPLR 5601, subd [b], par 1).


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    In the Matter of Samuel Wittlin, Respondent, v Rent Control Division, Department of Housing Preservation and Development of the City of New York, Office of Rent and Housing Maintenance, Appellant, et al., Respondent.
    Submitted September 20, 1982
    decided October 5, 1982
   Motion to dismiss appeal denied. Motion for an order directing respondent Anthony Cardinale to file a bond pending outcome of the appeal denied.


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    The People of the State of New York, Respondent, v Robert K. Lanza, Appellant.
    Argued September 8, 1982
    decided October 7, 1982

      APPEARANCES OF COUNSEL

      Fernande Rossetti for appellant.

      Sol Greenberg, District Attorney (llene R. Bergman of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and indictment dismissed for reasons stated in the dissenting memorandum of Justice Ann T. Mikoll at the Appellate Division (83 AD2d 714-715).

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


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    Gail B. B. Martinez, Respondent, v Michael B. Konczewski, Appellant.
    Decided October 7, 1982

      APPEARANCES OF COUNSEL

      Charles J. McEvily for appellant.

      Fred Ehrlich for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (85 AD2d 717). We read the memorandum as determining that it is in the best interests of the child that custody remain in the mother.

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


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    In the Matter of Frangella Mushroom Farms, Inc., Respondent, v Zoning Board of Appeals of the Town of Coeymans, Appellant.
    Decided October 7, 1982

      APPEARANCES OF COUNSEL

      David F. Kunz for appellant.

      E. David Duncan for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 962).

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


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    Charles F. Winson Gems, Inc., Appellant, v D. Gumbiner, Inc., et al., Respondents.
    Decided October 7, 1982

      APPEARANCES OF COUNSEL

      Arthur I. Winard for appellant.

      Alexander Yunis for D. Gumbiner, Inc., respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in so much of the opinion of the late Justice Vincent A. Lupiano at the Appellate Division as addresses the issue of the appropriate measure of damages to be awarded to plaintiff-appellant (85 AD2d 69).

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


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    The People of the State of New York, Appellant, v Eric Parker, Respondent.
    Argued September 8, 1982
    decided October 7, 1982

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney {Alan D. Rubinstein and Barbara D. Underwood of counsel), for appellant.

      Abigail Everett and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the opinion by former Justice James D. Hopkins at the Appellate Division (82 AD2d 661).

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


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    The People of the State of New York, Respondent, v Angelo Nuccie, Appellant.
    Argued August 31, 1982
    decided October 7, 1982

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender {Brian Shiffrin of counsel), for appellant.

      Donald O. Chesworth, District Attorney {Wendy Evans Lehmann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The contentions which defendant advances as grounds for reversal of the order of the Appellate Division have not been preserved for our review. No protest was registered on trial sufficient to support the argument now made to us that prejudicial and inflammatory statements made by the prosecutor in the course of his summation constituted reversible error; the general, unelaborated “objection” was not adequate for this purpose, particularly where the associated colloquy with the court reveals that the substance of the objection was that there had been no evidence that defendant was a heroin dealer, an activity which defendant himself had conceded.

Nor was his present assertion that there can be no accessorial theory of liability for conspiracy in New York preserved. The protest that a charge under section 20.00 of the Penal Law “would be inappropriate given the nature of the charges against the defendant” did not serve to challenge the general availability of an accessorial theory of criminal liability for conspiracy under the Penal Law in the absence of any elaboration to alert the trial court to the arguments now advanced. Similarly ineffective was an exception to the trial court’s charge under section 20.00 which related to the order in which the jury should consider the counts submitted to them. Again, there was no protest to the trial court’s failure' to instruct the jury as to the mental culpability required for conviction, and no predicate for appellate review is to be found in the arguments made by defense counsel on pretrial motions.

Finally, no exceptions were taken or further requests made after the trial court’s charge as to the law of conspiracy in general and in particular as to the necessity for proof of one of the overt acts alleged in the indictment (which followed requests submitted by both defense and prosecution). There was no necessity here to instruct the jury additionally or more explicitly with respect to the consideration to be given by them to taped conversations among the coconspirators, even had defendant invited the court’s attention after the charge to what he now asserts were its deficiencies.

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

Order affirmed in a memorandum.


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    The People of the State of New York, Respondent, v Philip L. S. (Anonymous), Appellant.
    Argued September 8, 1982
    decided October 7, 1982

      APPEARANCES OF COUNSEL

      Michael M. Premisler for appellant.

      Denis Dillon, District Attorney (Bruce E. Whitney and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

At a trial in 1978 for assault, arising out of a brawl in a public place involving a number of young men, the defendant and four codefendants were represented by one attorney. The defendant claims on this appeal that the court failed to adequately advise him of a potential conflict of interest (People v Gomberg, 38 NY2d 307). We agree.

At the beginning of the trial the court asked the defendant and his codefendants if they were aware of the joint representation, if they had discussed the matter with the attorney and knew of any reason why they should not be represented by the same attorney. However, the court never clearly informed the defendant that he had a right to separate counsel or attempted to alert the defendants, even in general terms to the potential conflict of interest (cf. People v Lloyd, 51 NY2d 107). In this case it cannot be said that there was no possibility of prejudice as a result of the joint representation. In a case involving so many eyewitnesses to a fight among strangers the evidence could and did show that many witnesses were unable to identify individual defendants as participants. In fact, few of the witnesses were able to identify the defendant as an assailant. Thus counsel could hardly emphasize the weakness of the identification of one defendant without implicitly underscoring the strength of the case against one or more of the others.

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

Order reversed, etc.


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    The People of the State of New York, Respondent, v Michael Rooney, Appellant.
    Argued September 1, 1982
    decided October 7, 1982

      APPEARANCES OF COUNSEL

      Janet Cunará for appellant.

      Mario Merola, District Attorney (Peter D. Coddington and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant was tried on an indictment charging him with criminally negligent homicide in that he “operated a motor vehicle at an excessive rate of speed, on the wrong side of the road while intoxicated and struck another vehicle” causing the death of another person. He was also charged in separate counts with driving while under the influence of alcohol. The defendant requested the court to charge the jury that he could not be found guilty of criminally negligent homicide unless it found that he had committed all of the acts mentioned in the indictment. The court refused the charge and the jury returned a verdict finding him not guilty of driving while under the influence of alcohol but guilty of criminally negligent homicide.

The court did not err in refusing to charge the jury as the defendant requested. Not every fact mentioned in an indictment is essential to establish the defendant’s guilt of the crime charged, and thus it is not necessary in every case that the People prove all acts alleged in the indictment when the remaining acts alleged are sufficient to sustain a conviction. In this case the jury could find that the defendant was criminally negligent when he drove the vehicle on the wrong side of the road while speeding even though he may not have been intoxicated at the time.

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

Order affirmed in a memorandum.


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    Arthur Richards, Inc., Respondent, v 79 Fifth Avenue Company et al., Respondents, and L & D Outerwear Co., Inc., Appellant.
    Decided October 7, 1982

      APPEARANCES OF COUNSEL

      James A. Magee for appellant.

      John F. Scully for 79 Fifth Ave. Co. and another, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and judgment of Supreme Court, New York County, reinstated for the reasons stated in the dissenting memorandum by Justice Arnold Fein at the Appellate Division (88 AD2d 517, 518), to which we add only that the testimony of the building superintendent that his usual practice was to tell the tenants when the water was to be turned back on and that he knew when he turned the water back on on August 27 that everyone had left the L & D premises and that he could not get into those premises, establishes a sufficient basis for the jury’s finding of negligence on the part of the owner and management company.

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


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    The People of the State of New York, Respondent, v Wayne T. Nelson, Appellant.
    Argued September 1, 1982
    decided October 7, 1982

      APPEARANCES OF COUNSEL

      F. Stanton Ackerman for appellant.

      Sol Greenberg, District Attorney (Joselle G. Waters of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, judgment of conviction and plea vacated, motion to suppress granted and the case remitted to Albany County Court for further proceedings on the indictment for reasons stated in the dissenting memorandum of Justice Ann T. Mikoll at the Appellate Division (83 AD2d 689-690).

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


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    The People of the State of New York, Respondent, v Richard Goodson, Appellant.
    Argued September 3, 1982
    decided October 7, 1982

      APPEARANCES OF COUNSEL

      Morton J. Marshack, Michael J. Ohus and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Bruce E. Whitney and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that it was error to admit the testimony of Officer McCartney that when defendant was arrested he stated “that he was there, but he didn’t rob the old lady”, inasmuch as no reference had been made to this statement in the prosecutor’s notice under CPL 710.30. That section, unlike an all-embracing demand in a demand for a bill of particulars, requires disclosure only of statements which the People “intend to offer at a trial”. The quoted statement of defendant did not fall into that category, and there was, therefore, no violation of the statutory prescription. It was only after defense counsel on cross-examination of Officer McCartney, a third-party witness for the People, inquired as to whether there ever came a time when defendant “denied his involvement in this” and the witness responded in the affirmative that on redirect the prosecutor, questioning the witness as to the exact words that defendant used, elicited the testimony now challenged. The trial court correctly ruled that defense counsel had opened the door to its admission.

Nor is there any merit to defendant’s associated argument that he was “ambushed”; that if he had known of the statement in advance he never would have cross-examined Officer McCartney as he did. Either of two responses may be made and at least when taken in combination they dispose of defendant’s argument. First, the 710.30 notice could not properly have been taken by defense counsel as a representation that defendant had made no other statements; it explicitly covered only statements which the People intended to offer on trial. Second, the prosecutor at the opening of the pretrial hearing sought to bring to the attention of the court and defense counsel defendant’s statement which had just been brought to his notice. The court excluded the offer of the prosecutor on objection of defense counsel, but the offer should have put defense counsel on notice that defendant had made another statement which might prove relevant. Defendant’s subsequent difficulty was of his counsel’s own doing.

Finally, defendant claims that he was denied his constitutional right to confront the 90 year old, concededly crotchety complaining witness because of restrictions which the trial court placed on his cross-examination of her. This was the principal basis of the dissent at the Appellate Division. The insuperable obstacle defendant confronts in our court, however, is the circumstance that, although he raised other objections to the complainant’s testimony, at no point does the record disclose any protest based on insufficiency of opportunity for cross-examination. Accordingly, that issue has not been preserved for our review.

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

Order affirmed in a memorandum.

       Defendant’s reliance on People v Briggs (38 NY2d 319) is misplaced. In that case we condemned the use by the prosecution on its proof of a statement as to which no notice was given (except as permitted by the trial court at the time of its introduction). The trial court’s ruling in the present case was expressly predicated on the ground that in cross-examination of the third-party witness defense counsel had opened the door to admission of the unnoticed statement; there was no counterpart in Briggs.


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    In the Matter of Robert A. Eagle, as Representative Broker of Butterfield Realty of Long Island, Inc., et al., Appellants, v Basil A. Paterson, as Secretary of State of the State of New York, Respondent.
    Argued August 31, 1982
    decided October 7, 1982

      APPEARANCES OF COUNSEL

      Howard W. Goldson for appellants.

      Robert Abrams, Attorney-General (Sheila Abdus-Salaam, Peter H. Schiff and Deborah Bachrach of counsel), for respondent.

      John T. De Graff, Jr., and Michael T. Wallender for New York State Association of Realtors, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

On the record, including the inferences to be derived therefrom, as these unfolded before the hearing officer, it cannot be said as a matter of law that the findings of the Secretary of State, including the one that the letters sent to homeowners who had signed “cease and desist requests” constituted “solicitation for listings of the property to which the distribution was made” in violation of 19 NYCRR 175.17 (b), were not supported by substantial evidence. All the more is this so since we no longer follow the “legal residuum rule”, under which at least some minimum quantity of the evidence which supported an administrative decision had to be of a kind admissible in a court proceeding (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180, n; see 8 Weinstein-Korn-Miller, NY Civ Prac, par 7803.09).

Nor, since the petitioners made no request that the homeowners be called as witnesses (see State Administrative Procedure Act, § 304, subd 2), did the hearing officer’s failure to do so offend the petitioners’ due process rights.

Finally, as to the commercial speech point which the petitioners now would raise for the first time, suffice it that their failure to do so below precludes its consideration here (Barber v Dembroski, 54 NY2d 648,- 650; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 169).

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

Judgment affirmed, with costs, in a memorandum.


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    In the Matter of the Rehabilitation of the Empire Mutual Insurance Company, Respondent. Armando Barone, Appellant.
    Decided October 7, 1982

      APPEARANCES OF COUNSEL

      David Jaroslawicz and Ira Leitel for appellant.

      Raymond J. MacDonnell and Philip Hoffer for respondent.
   OPINION OF THE COURT

. On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, claimant’s motion to reject the referee’s report granted, report rejected and the matter remitted to Supreme Court, New York County, with directions to remand to the referee for a hearing to determine whether any portion of the settlement was attributable to economic loss, and, if so, what portion was so attributable. The superintendent’s interpretation of the regulation at issue (11 NYCRR 65.12 [a] [“Other Definitions”, subd (h)]) would make it inconsistent with the provisions and intent of the no-fault statute (Insurance Law, art 18). It therefore must be construed to exclude from no-fault coverage only conduct applied directly to “repairing, servicing or otherwise maintaining motor vehicles”.

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


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    After Six, Inc., et al., Appellants, v 201 East 66th Street Associates et al., Respondents.
    Decided October 7, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the question certified does not present a question of law decisive of the correctness of the determination of the Appellate Division.


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    Nicholas D’Angelo, Respondent, v Bob Hastings Oldsmobile, Inc., Appellant.
    Submitted September 20, 1982
    decided October 7, 1982
   Motion for leave to appeal denied as unnecessary. An appeal taken as of right under CPLR 5601 (subd [a], par [iii]) brings up for review all aspects of the order appealed from.


text:
    Harar Realty Corp., Appellant, v Michlin & Hill, Inc., et al., Respondents.
    Submitted August 2, 1982
    decided October 7, 1982
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]). Twenty dollars costs and necessary reproduction disbursements to respondent Michlin & Hill, Inc.


text:
    Beatrice Moss, Appellant, v Jack Moss, Respondent.
    Submitted July 26, 1982
    decided October 7, 1982
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]).


text:
    Raymond Novy, Respondent, v F. & M. Schaefer Brewing Company, Appellant.
    Submitted September 13, 1982
    decided October 7, 1982
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that appellant was not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    David Wadler, an Infant, by His Father and Natural Guardian, Gary Wadler, et al., Respondents, v Akiva Wadler, Defendant, and Ephraim Rubin, Appellant.
    Decided October 7, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the stipulation for judgment absolute, under the facts in this case, is illusory and frustrates the purpose of CPLR 5601 (subd [c]) (see Welty v Brown, 42 NY2d 995).

Judge Fuchsberg taking no part.


text:
    The People of the State of New York, Respondent, v Michael L. Rose, Appellant.
    Argued August 30, 1982
    decided October 12, 1982

      APPEARANCES OF COUNSEL

      Joseph B. Mistrett for appellant.

      Colin E. Ingham, District Attorney (.Albert E. Clune of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree. The charges stemmed from the sale of cocaine to an undercover State Police officer. Defendant asserts that he was denied effective assistance of counsel.

This contention is unsupported by the record. Defense counsel’s reliance on the testimony of a witness whose credibility was subsequently impeached on cross-examination may have been an inadvisable trial tactic, but it did not constitute ineffective assistance. Similarly, it cannot be said as a matter of law that defense counsel’s failure to explore the possibility of plea bargaining was error. When viewed in its totality, the attorney’s performance at trial and sentencing did not deprive defendant of “meaningful representation” (People v Baldi, 54 NY2d 137, 147).

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

Orders affirmed in a memorandum.


text:
    Perin Gobhai, Appellant, v KLM Royal Dutch Airlines, Respondent.
    Argued September 2, 1982
    decided October 12, 1982

      APPEARANCES OF COUNSEL

      Robert G. Harley for appellant.

      Stephen J. Fearon, Lawrence Mentz and Wendy A. Gross-man for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (85 AD2d 566).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer. Judge Fuchsberg dissents and votes to reverse in an opinion. Judge Gabrielli taking no part.

Fuchsberg, J.

(dissenting). In this personal injury action, sounding in the main in strict liability and breach of warranty for, among other things, the “distribution” of an allegedly defective product, the Appellate Division, unaccountably to me on the facts here, has reversed Special Term’s denial of defendant’s motion for summary judgment and, by granting the motion, denied plaintiff her right to trial. To compound the error, its opinion bespeaks what, in this context, is, at one and the same time, an inadmissibly narrow definition of a sale and an overly broad conceptualization of what constitutes a hybrid sales-service transaction. To say the least, then, to let this decision stand is to confuse doctrine which the common law has steadily developed in this area of law for the last half century. Putting aside then the merits of this particular case, whose denouement in any event would have to await resolution at trial of other issues, including whether the product here indeed was defective and whether the defect proximately produced the injuries, I believe the principles at stake deserve expression.

The facts on which the summary judgment motion was submitted, largely garnered by interrogatory and deposition, are as follows:

The plaintiff, an elderly woman, donned a new pair of slippers she had received during a visit to her son’s home. On their first wearing, as she stepped from a carpeted bedroom into a dining area whose dry and unobstructed flooring was made of vinyl tiles such as “would normally be in a kitchen and dining area”, she unexpectedly slipped and fell, as a result of which she sustained injuries which included a crushed vertebra and multiple fractures of an arm. According to a United States Testing Company report, which forms part of the record, standard tests of the type performed by the flooring industry disclosed that, when applied to vinyl, linoleum or asbestos tile, the material of which the slipper soles, which were rigid, were made, carried a dangerously low “static coefficient of friction”. At this stage at least, to this the defendant offered no refutation.

The slippers, which bore the defendant’s logo KLM, had been handed to the son by a stewardess during a transatlantic business flight he had taken from Amsterdam to New York on defendant’s airline. Along with other articles, including, for instance, a Delft-type china bottle of liqueur, they were given to first-class passengers; except as it may have entered into fixing the first-class fare (far larger than that for other passengers), no separate charge was requested. The slippers, whose substantial nature indicated that they were not single-use throwaways, came wrapped in cellophane and were not expected to be returned to the airline. As plaintiff’s discovery disclosed, while the defendant had not manufactured the slippers directly, they were made in Korea according to its own specifications. The son, who did not change his footwear on the plane, took the slippers home, where they remained unopened until they were turned over to his mother.

In seeking summary judgment, defendant claimed that it was decisive that “no additional money was paid for the slippers that were given to [the son] by a KLM stewardess” and that “it cannot be liable * * * as a matter of law in that it was not the manufacturer of the slippers, did not sell the slippers, but merely gave [them] away free as an incident to the air transportation services it provided”. Special Term, in part explicitly and in part implicitly, rejected both arguments.1 respectfully suggest the Appellate Division should have done the same.

Preliminarily, I note that, though both courts below broadsweepingly referred to the action as though it were one in strict products liability alone, the pleadings, as already indicated, also expressly speak to breach of warranty and, arguably, if liberally construed, to negligence as well. This oversight is especially troublesome because, in this area of litigation, pleading (and substantive) categorization has been so beset by a tendency to overlap, that in the past we have thought it worthwhile to comment that “it may be open to a particular plaintiff to base his case on contract liability or negligence or strict products liability, or on some combination thereof” (Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 400, esp at p 402, n 2).

This in mind, it is also to be observed that it is long past the time when, for these purposes, the term “sale” may be confined to its literal meaning, or that responsibility for a defective product moves only from its “manufacturer” to those with whom it deals directly. For the assault on the “citadel of privity” of which Cardozo wrote so classically not only has proceeded apace but, indeed, has scaled the ramparts.

As a case of national import has told the tale, “[w]ith the advent of mass marketing, the manufacturer became remote from the purchaser, sales were accomplished through intermediaries, and the demand for the product was created by advertising media. In such an economy it became obvious that the consumer was the person being cultivated. Manifestly, the connotation of‘consumer’ was broader than that of buyer” (Henningsen v Bloomfield Motors, 32 NJ 358, 379; see, also, Prosser, Fall of the Citadel, 50 Minn L Rev 791; Restatement, Torts 2d, § 402 A, subd [1], par [a]).

Consistently, on the New York legal scene, a breach of warranty came to be recognized, as Judge Desmond summarized it for our court, as “not only a violation of the sales contract out of which the warranty arises but [as] a tortious wrong suable by a noncontracting party whose use of the warranted article is within the reasonable contemplation of the vendor or manufacturer” (emphasis supplied; Goldberg v Kollsman Instrument Corp., 12 NY2d 432, 436).

Thus, it is immaterial to this case that the defendant itself did not make the slippers in question or that it did not deal directly with the mother. It was enough if, as the complaint alleges, the defendant “distributed” them and that plaintiff, here not very remotely, became their consumer.

That the distribution was in the channels of commerce also cannot be gainsaid, certainly not as a matter of law. The defendant is not a charitable organization, handing out gifts per se. Without belaboring the point, for the transaction to have been commercial in character there needed to be no separate consideration for the slippers or the other additional items. These the airline furnished in some part, even if small, to persuade passengers to pay the first-class fare, in this case $1,632.50, double or more than that charged other passengers for the self-same passage. And it appears equally obvious that the logo on the slippers, a repeated reminder to its passengers, members of their families or others to whom they might be expected to be passed along, was a familiar exploitation of a potential advertising medium for promoting KLM’s business.

Equally to be rejected is defendant’s argument that the distribution of the slippers was “wholly incidental to its basic service provided, i.e., international air transportation”. Relying largely on Milau Assoc. v North Ave. Dev. Corp. (42 NY2d 482), a case in which this court upheld a Trial Judge’s refusal to charge on a theory of implied warranty of fitness for use when a pipe, which had been laid down under a contract “to design and put together a sprinkler system tailored to the needs of commercial tenants”, of which the plaintiff there was one, burst and damaged plaintiff’s merchandise. But the furnishing of the pipe in Milau was an essential part of a hybrid sale service, which “could not in logic or common sense be separated” (id., at p 486), so that, without it, the service of designing and installing a sprinkler system could not have taken place. Here, in clear contrast, the slippers were neither a necessary nor unavoidable ingredient of the transportation.

The distinction is underlined by a careful reading of Perlmutter v Beth David Hosp. (308 NY 100), a case of which Milau, in its far different setting, took account. Perlmutter, a suit brought to recover for injuries sustained by a hospital patient because the blood used in a transfusion contained hepatitis-producing viruses, was a policy-laden decision, expressly responsive to the fact that blood transfusions are important, indeed lifesaving, aspects of medical care and that the presence of such impurities, at least at that time, was scientifically undetectable (Perlmutter v Beth David Hosp., supra, at pp 106-107). Even so, Perlmutter stressed that the blood transfused was not merely incidental to the medical care and treatment of which its transfusion would be a part. Without blood there simply would be no transfusion. To quote Perlmutter, the rendition of medical care and the furnishing of blood in connection with such care are “not divisible”, a description totally inappropriate to the almost souvenir-like presentation of the slippers in the case before us now.

For all these reasons, defendant’s motion for summary judgment should have been denied and the case permitted to proceed to trial.

Order affirmed, etc.

      . Though pleaded somewhat generally, these theories must be taken as encompassed within the complaint’s allegation that the conduct of the defendant, inter alia, has caused it to “become strictly liable to plaintiff” and that it had “breached express and implied warranties”. It also alleged “actionable misrepresentations”. These, according to the bill of particulars, included failure to give “warning to potential users that [the slippers] were unsafe under the conditions that the plaintiff used them” and that the defendant “impliedly warranted that the slippers were fit for ordinary, everyday use, and they were fit for use on floors common to residences”.

      . In opposing defendant’s summary judgment motion, plaintiff asserted that, while her witnesses had been deposed, defendant had succeeded in delaying its own deposition. As a consequence, she prudently requested that, if the court were to seriously contemplate granting defendant’s motion, it defer the matter until discovery was completed. Because Special Term denied the motion on its merits, it, of course, became unnecessary for Special Term to do so. For its part, the Appellate Division never considered this alternative.

      . The detailed report advises that any value below 0.5 has “some measure” of hazard to one who wears such slippers and that, two series of tests having been run, the first produced values of only 0.2, 0.19, 0.17 and 0.17 for an average of 0.185, while the second produced 0.16, 0.15, 0.18 and 0.17 for an average of but 0.165.

      . Plaintiff also cross-moved for leave to amend her complaint to increase the prayer in its ad damnum, clause and, without altering its substantive assertions, to specifically include a negligence theory (see CPLR 3025, subd [b]). This motion (made at a time when Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, had not yet been decided) was denied. Be that as it may, because, for practical purposes, the majority’s disposition of the defendant’s appeal would render the cross appeal academic, I do not treat with it.

      . (See Ultramares Corp. v Touche, 255 NY 170, 180.)

      . The policy component was so dominant that the Perlmutter holding has since been codified by the Legislature, notably only as to blood cases (Public Health Law, § 580, subd 4). No doubt, this reinforcement stemmed from the fact that, dehors policy, scholars had expressed concern that unless Perlmutter was narrowly construed, the sales-service dichotomy by which it rationalized its decision might be permitted to extrapolate into less justifiable circumstances (e.g., Farnsworth, Implied Warranties of Quality in Non-Sales Cases, 57 Col L Rev 653, 660-665; Note, 103 U of Pa L Rev 833-836; White and Summers, Uniform Commercial Code [2d ed], § 9-6, at pp 348-349; see, also, Cunningham v MacNeal Mem. Hosp., 47 Ill 2d 443).


text:
    In the Matter of Community Board No. 4 (Manhattan), Appellant, v Board of Estimate of the City of New York et al., Respondents, and 25 Building Associates, Intervenor-Respondent.
    Decided October 12, 1982

      APPEARANCES OF COUNSEL

      Robert Hartman for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Michael Gage of counsel), for respondents.

      Jay A. Segal for intervenor-respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (88 AD2d 832).

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


text:
    Jandous Electric Construction Corp., Appellant, v City of New York, Respondent.
    Decided October 12, 1982

      APPEARANCES OF COUNSEL

      Jeffrey C. Miller for appellant.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (88 AD2d 821).

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


text:
    Richard Partridge, Appellant, v Joseph Battiato, Respondent.
    Decided October 12, 1982

      APPEARANCES OF COUNSEL

      Mark D. Stern for appellant.

      John J. Quackenbush, Jr., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (88 AD2d 588).

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


text:
    In the Matter of the Claim of Charles Jones, Respondent, v Chevrolet-Tonawanda Division, GMC, Respondent. Workers’ Compensation Board, Appellant. In the Matter of the Claim of Ronald Hanks, Respondent, v Chevrolet-Tonawanda Division, GMC, Respondent. Workers’ Compensation Board, Appellant.
    Decided October 12, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Morris N. Lissauer of counsel), for appellant.

      Mark W. Hamberger for Chevrolet-Tonawanda Division, GMC, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (87 AD2d 924).

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


text:
    In the Matter of Gonkjur Associates, Respondent, v Robert Abrams, as Attorney-General of the State of New York, Appellant.
    Argued September 8, 1982
    decided October 12, 1982

      APPEARANCES OF COUNSEL

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

      Steven R. Lapidus and Stanford M. Singer for respondent.

      Kent Karlsson for One Plaza Street Tenant Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice Max Bloom. Because the order appealed from finally determined the proceeding, we do not answer the certified question (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], pp 357-358).

We have not previously passed upon the construction of a statute requiring, as did subdivision 2 of section 352-e of the General Business Law, at the time here relevant, that a public official act “not later than thirty days after * * * filing.” We add to Justice Bloom’s decision, therefore, that although the phrase “not later than” may, when viewed against the remedial objectives of the statute in which the phrase appears, be construed to be directory only (Usery v Whitin Mach. Works, 554 F2d 498, 501-502; United States v Morris, 252 F2d 643, 648-649), where, as here, the Attorney-General is not foreclosed by filing from further action protective of the public interests and the purpose of the time limitation is to protect the property owner against unreasonable delay, the statute is properly construed to be mandatory, rather than directory (see Matter of Whalen v Lefkowitz, 36 NY2d 75, 78).

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

Order affirmed, with costs, in a memorandum. Question certified not answered as unnecessary.


text:
    In the Matter of Arthur Soybel, Respondent, v Robert Abrams, as Attorney-General of the State of New York, Appellant.
    Argued September 8, 1982
    decided October 12, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {Robert Hermann and Gerald J. Hurwitz of counsel), appellant pro se.

      Stanford M. Singer and Steven R. Lapidus for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (86 AD2d 804; see, also, Matter of Gonkjur Assoc. v Abrams, 57 NY2d 853).

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


text:
    In the Matter of Parilex, Inc., Appellant, v Robert Abrams, as Attorney- General of the State of New York, Respondent.
    Argued September 8, 1982
    decided October 12, 1982

      APPEARANCES OF COUNSEL

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

      Steven R. Lapidus and Standord M. Singer for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (86 AD2d 541). Question certified answered in the affirmative.

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


text:
    Mimnorm Realty Corporation, Respondent, v Sunrise Federal Savings & Loan Association, Appellant.
    Argued September 2, 1982
    decided October 12, 1982
   Appeal dismissed, without costs, upon the ground that the question certified does not present a question of law decisive of the correctness of the determination by the Appellate Division.

Judge Meyer taking no part.


text:
    Associated Blind Housing Development Fund Corporation, Respondent, v Theodore Schwartz, Appellant.
    Decided October 12, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie (NY Const, art VI, § 3, subd b, par [7]).


text:
    The People of the State of New York ex rel. Michael Barrett, Appellant, v New York State Board of Parole et al., Respondents.
    Submitted September 7, 1982
    decided October 12, 1982
   Motion for leave to appeal, etc., dismissed for failure to demonstrate timeliness (rule 500.9 of the Rules of the Court of Appeals [22 NYCRR 500.9]).


text:
    In the Matter of Collum Signs, Inc., Appellant, v Martin Lang et al., Respondents.
    Submitted October 4, 1982
    decided October 12, 1982
   Motion for a stay dismissed for lack of jurisdiction to entertain it, there being no appeal or motion for leave to appeal pending before this court.


text:
    The People of the State of New York, Respondent, v Dwight Corley, Appellant.
    Submitted August 30, 1982
    decided October 12, 1982
   Motion to vacate the Court of Appeals order of dismissal dated December 18, 1980 granted and the appeal reinstated. [See 52 NY2d 783.]


text:
    Joanne Hollender, Appellant, v Trump Village Co-operative, No. 4, Inc., et al., Respondents, et al., Defendant.
    Submitted August 9, 1982
    decided October 12, 1982
   Motion for an order compelling respondent’s law firm to obtain appointment of an administrator, etc., denied, without prejudice to the making of an application in the Surrogate’s Court by appellant or any other interested party, for appointment of a personal representative of the deceased respondent.


text:
    The People of the State of New York, Respondent, v Jose Carrion, Appellant.
    Submitted August 2, 1982
    decided October 12, 1982
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed. No appeal lies from an order of the Appellate Division denying a motion for leave to appeal to that court (CPL 450.90).


text:
    In the Matter of Suffolk Outdoor Advertising Co., Inc., Appellant, v Town of Southampton et al., Respondents.
    Submitted October 4, 1982
    decided October 12, 1982
   Motion for a stay dismissed for lack of jurisdiction to entertain it, there being no appeal or motion for leave to appeal pending before this court.


text:
    In the Matter of Robert B. Marcus et al., Appellants, v Morton Baron, as Presiding Supervisor of the Town of Ramapo, et al., Respondents. (And Another Proceeding.)
    Argued September 2, 1982
    decided October 14, 1982

      APPEARANCES OF COUNSEL

      Frank I. Brown for appellants.

      Robert H. Freilich and Herschel Greenbaum for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and judgment of Supreme Court, Rockland County, reinstated for reasons stated in the dissenting opinion of former Justice James D. Hopkins at the Appellate Division (84 AD2d 118, 134-139).

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


text:
    In the Matter of Shirley Gregory et al., Respondents, v Board of Appeals of the Town of Cambria et al., Appellants.
    Decided October 14, 1982

      APPEARANCES OF COUNSEL

      Edwin Shoemaker for Board of Appeals of Town of Cambria, appellant.

      William M. Feigenbaum for Thomas Carter, appellant.

      Kenneth F. Astarita for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum of that court (87 AD2d 1000). We note, in addition, that the arguments now made concerning the “presumption of regularity” of the actions of government officials and the conclusive effect of petitioners’ failure to reply to the Statute of Limitations defense may not be raised for the first time on appeal to this court. Moreover, we find it unnecessary to determine whether a local zoning ordinance may limit the more general provisions of the Town Law stating the standards under which a variance may be granted. The evidence before the board of appeals was insufficient to support the grants of variances under the standards provided in either the Town Law (§ 267, subd 5) or the zoning ordinance.

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

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


text:
    In the Matter of John J. Martirano, Appellant, v Zoning Board of Appeals of the Town of Lewisboro et al., Respondents.

      Decided October 14, 1982

      APPEARANCES OF COUNSEL

      David G. Trager for appellant.

      Charles B. McGroddy, III, for respondents.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 820).

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


text:
    Betty Bonnot, Appellant, et al., Plaintiff, v Harvey Fishman, Respondent, et al., Defendant.
    Decided October 14, 1982

      APPEARANCES OF COUNSEL

      Esau J. Mishkin and Alan I. Boockvar for appellant.

      Andrew J. Schatkin for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in so much of the memorandum at the Appellate Division as relates to defendant’s right to deduct the amount paid in settlement (88 AD2d 650).

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