text:
    In the Matter of Fontana D’Oro Foods, Inc. John Agosta, Appellant; Salvatore Agosta, Respondent.
    Decided July 9, 1985
    APPEARANCES OF COUNSEL

      Brian Fishkin for appellant.

      Stephanie S. Alter for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Agosta brothers, John and Salvatore, each owned 50% of the capital stock of Fontana D’Oro Foods, Inc., a corporation engaged in the wholesaling and warehousing of foodstuffs and condiments used by pizzerias. As a consequence of disagreements between them, in the fall of 1982 John commenced a proceeding pursuant to Business Corporation Law § 1104 to dissolve Fontana. The proceeding was settled by a stipulation between John and Salvatore, entered on the record in open court on November 24 and modified on December 13, 1982, by which John agreed to purchase the stock owned by Salvatore for $505,000. The stipulation for the most part related to arrangements for payment of the purchase price and security for a five-year promissory note John was to sign, and included as well provisions concerning certain minor corporate assets and personal and real property, unrelated to Fontana, owned by the Agostas individually. Salvatore agreed to “wind down” his Fontana affairs and not to “interfere” with the business during that period. He also agreed to resign as an officer, director and employee of Fontana, the resignation to be held in escrow until closing, scheduled for December 31, 1982.

On December 29, John requested that the closing be postponed until the following week. Early in the morning of January 3, 1983, however, the Fontana warehouse, a major asset of the corporation, was destroyed by fire. No provision for this risk had been made in the stipulation. Fontana’s insurance carrier refused to pay under its policy, based on its arson investigation. John, who had before the fire formed La Famosa Foods, Inc., refused to proceed with the closing, claiming impossibility of performance.

Salvatore immediately moved to enforce the stipulation. Supreme Court denied the motion, holding that the true purpose of the transaction — which it determined to be the sale of an ongoing business enterprise — had been frustrated by the destruction of the warehouse and unforeseeable refusal of the insurer to compensate Fontana for the loss. The Appellate Division disagreed, directing Supreme Court to execute as John’s nominee the documents necessary to consummate the purchase of Salvatore’s interest in Fontana. The Appellate Division relied upon statutory provisions imposing the risk of loss on the purchaser of real property “[w]hen either the legal title or the possession of the subject matter of the contract has been transferred” to him (General Obligations Law § 5-1311 [1] [b]) and on the buyer of accepted goods, “acceptance” being defined as the doing of “any act inconsistent with the seller’s ownership” (Uniform Commercial Code § 2-709 [1] [a]; § 2-606 [1] [c]).

While the Appellate Division properly directed specific performance, both lower courts erroneously disregarded the form of the transaction — which was a stock transfer — and treated the transaction instead as a sale of a business or tangible assets. The well-settled rule is that “ownership of capital stock is by no means identical with or equivalent to ownership of corporate property” (Brock v Poor, 216 NY 387, 401). We recently reaffirmed this rule in 5303 Realty Corp. v O & Y Equity Corp. (64 NY2d 313), in which we held that a notice of pendency was unavailable to a plaintiff in an action for specific performance of a contract to sell 100% of the stock in a corporation whose sole asset was an office building. Here, too, we cannot disregard the fact that the parties chose to structure their transaction as one involving stock, or that John agreed to pay $505,000 for Salvatore’s stock. Given the form of their transaction, whether the parties might really have intended to transfer control of an ongoing business enterprise, rather than stock, can have no bearing on this conclusion (cf. Landreth Timber Co. v Landreth, 471 US 105 S Ct 2297, 2306-2308; Gould v Ruefenacht, 471 US 105 S Ct 2308).

Since an agreement to convey stock in a close corporation may be enforced by specific performance (see, e.g., Triggs v Triggs, 61 AD2d 911, affd 46 NY2d 305; Matter of Galewitz, 3 AD2d 280, 286 [Breitel, J.], affd 5 NY2d 721; Aron v Gillman, 284 App Div 1065, mod on other grounds 309 NY 157), it was within the power of the Appellate Division to award such relief to Salvatore by directing Supreme Court to execute as nominee for John the various documents contemplated by the parties’ stipulation.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Appellant, v Justo Colon, Respondent.
    Decided July 9, 1985

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Robert M. Pitler and Emily Berger of counsel), for appellant.

      Lawrence O. Kamin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to set aside the verdict denied, and the case remitted to Supreme Court for sentencing.

Defendant was brought to trial for the knife-point robbery of two sisters in the elevator of their apartment building on September 6, 1982. On cross-examination of the victims, defense counsel highlighted several inconsistencies between their descriptions of the assailant after the crime and the appearance of defendant. Evidently in anticipation of presenting evidence of defendant’s inability to speak English fluently, defense counsel also established that the perpetrator made statements in English during the robbery. Noticing this strategy, the prosecutor established, through the testimony of the arresting officer, that defendant had made certain statements in English after his arrest. The prosecutor did not elicit the substance of those statements. Défense counsel moved for a mistrial, arguing that the People had violated both CPL 710.30, in failing to provide notice of intent to introduce these statements, and CPL 240.20 by failing to disclose the statements in response to the discovery motion. The prosecutor explained that he had just recently learned of the statements. The trial court rejected defendant’s argument based on CPL 710.30 but agreed that the prosecution had violated discovery rules. However, the court found the remedy of a mistrial too “drastic.”

Following the jury’s verdict of guilt, defendant moved to set aside the verdict under CPL 330.30. He premised his argument on the weight of the evidence, the interest of justice, and prose: cutorial misconduct with respect to the failure to disclose the statements made by defendant after his arrest. The trial court granted the motion and ordered a new trial, relying on “all the factors,” including the undisclosed statements, the close factual question, the possibility of defendant’s innocence, and his successful completion of a polygraph examination. On appeal by the People, the Appellate Division affirmed, recounting the inconsistencies between the victims’ description of their assailant and defendant’s appearance, and stating in its memorandum opinion that it was acting “in the interest of justice.”

Since the trial court’s decision on the motion to vacate was based in substantial part on the weight of the evidence and the possibility of innocence, it was not grounded on error which “if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court” (CPL 330.30 [1]). Accordingly, the trial court erred in setting aside the verdict for the reasons stated (People v Carter, 63 NY2d 530, 536). Further, in view of People v Goodfriend (64 NY2d 695, 698), the Appellate Division was not empowered to affirm on the alternative basis of its power to vacate a conviction in the interest of justice where there is a “grave risk that an innocent man has been convicted” (People v Kidd, 76 AD2d 665, 668). As in Goodfriend, the decision whether to exercise that power as well as consideration of defendant’s other arguments must await a possible future appeal after sentencing.

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

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


text:
    Roger McCollester, Appellant, v James A. Chisholm et al., Respondents.
    Decided July 9, 1985

      APPEARANCES OF COUNSEL

      Solomon Abrahams for appellant.

      Clifford G. Kleinbaum for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (104 AD2d 361).

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


text:
    In the Matter of Allen A. Funt, Appellant, v Marilyn L. Funt, Respondent.
    Decided July 9, 1985

      APPEARANCES OF COUNSEL

      Robert D. Costello for appellant.

      Bernard G. Post for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Supreme Court having held in the earlier proceeding by respondent seeking child support arrears that there had been no change in circumstances in the interval since the parties entered into their separation agreement that would warrant termination or modification of the child support provision, this finding should have been accorded collateral estoppel effect in this Family Court proceeding commenced 42 days later by petitioner seeking a downward modification of the child support payments. Thus, the Appellate Division correctly considered only whether circumstances had changed in the period between entry of the arrears judgment in the prior proceeding and the commencement of this proceeding. Having found no such change in circumstances, the Appellate Division did not abuse its discretion in reversing the order of Family Court modifying the child support payments.

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

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


text:
    In the Matter of Top Tile Building Supply Corporation et al., Appellants, v New York State Tax Commission et al., Respondents.
    Decided July 9, 1985

      APPEARANCES OF COUNSEL

      Lorentz W. Hansen for appellants.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (105 AD2d 936).

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


text:
    In the Matter of the Application of Michael Calandra et al., Appellants, v Harold Rothwax, as a Justice of the Supreme Court of the State of New York, New York County, et al., Respondents.
    Submitted June 3, 1985;
    decided July 9, 1985
   Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Matter of Sean X., 63 NY2d 943).


text:
    The People of the State of New York, Appellant, v Frank DiNapoli, Respondent.
    Submitted June 24, 1985;
    decided July 9, 1985
   Motion to dismiss the appeal denied.


text:
    Great Neck Car Care Center, Inc., Respondent, v Artpat Auto Repair Corp., Defendant, and Patricio Aguirre et al., Appellants.
    Submitted June 10, 1985;
    decided July 9, 1985
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    Frank Matarrese, Doing Business as Square Realty Company, et al., Appellants, v Aetna Life Insurance Company et al., Respondent.
    Submitted June 17, 1985;
    decided July 9, 1985
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that it does not lie as of right.


text:
    Aetna Life & Casualty Company, Appellant, v Brett Duthie, Respondent.
    Decided July 9, 1985
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the modification at the Appellate Division is not “in a substantial respect” (CPLR 5601 [a] [iii]).


text:
    In the Matter of 61 Jane Street Associates, Appellant, v New York City Conciliation and Appeals Board et al., Respondents.
    Decided July 11, 1985

      APPEARANCES OF COUNSEL

      Richard F. Czaja for appellant.

      Cullen S. McVoy for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. It cannot be said that the determination of lawful rent was either arbitrary or capricious, or that the remedy imposed was disproportionate under the circumstances.

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


text:
    A. Richard Golub, Appellant, v Rene Frank et al., Respondents.
    Decided July 11, 1985

      APPEARANCES OF COUNSEL

      Arthur H. Victor for appellant.

      Susan Saslow for respondents.
   OPINION OF THE COURT

Memorandum.

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

Section 50 of the Rent Stabilization Code (Code of Rent Stabilization Association of New York City, Inc.) provides that no tenant shall be denied a renewal lease except upon grounds specifically recognized by law. One recognized ground upon which a renewal lease may be denied is that the dwelling unit is not occupied as a tenant’s primary residence. (Rent Stabilization Code § 54 [E].) Section 54 (E) of the Rent Stabilization Code mandates a method by which an owner may seek an authoritative determination of the tenant’s status as a nonprimary resident. As the courts below correctly noted, where an owner seeks to invoke this ground to deny a tenant his right to a renewal lease, the owner must adhere to the procedure set forth in section 54 (E) of the Rent Stabilization Code, and give notice to the tenant of his intention not to offer a renewal lease not more than 150 and not less than 120 days prior to the end of the tenant’s lease term. (Rent Stabilization Code § 60.) Inasmuch as plaintiff failed to observe the foregoing procedures, defendant is entitled to a renewal lease.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, in a memorandum.


text:
    In the Matter of Marcos Veloz, Respondent, v Harold Rothwax, as Acting Justice of the Supreme Court, New York County, et al., Appellants.
    Decided July 11, 1985

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Vija Kemanis of counsel), for appellants.

      Michele Maxian and Caesar D. Cirigliano for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

CPL 255.20 (1) prescribes a minimum, fixed time period of 45 days in which a defendant may make pretrial motions. This provision carefully balances considerations of judicial economy (People v Lawrence, 64 NY2d 200, 204-205) with defendant’s need for adequate time in which to prepare and make pretrial motions. A trial court may not, sua sponte, alter this statutory time period (People v Douglass, 60 NY2d 194, 205). Thus, we agree with the Appellate Division that respondent lacked the authority to shorten the statutory time period in which to make pretrial motions.

We hold, however, that the Appellate Division erred in granting the petition seeking an order, pursuant to article 78 and in the nature of a writ of mandamus, compelling respondent to render a merits determination upon petitioner’s omnibus motion (CPL 255.20). Respondent’s misconstruction of CPL 255.20 constitutes an error of law, in a pending criminal action, which is not subject to relief in the nature of a writ of mandamus. (Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16; La Rocca v Lane, 37 NY2d 575, 579.) Moreover, since petitioner may obtain judicial review of his claim on direct appeal from a judgment of conviction, it is impermissible to disrupt the criminal proceedings by resort to the extraordinary writ of mandamus. (Matter of Legal Aid Socy. v Scheinman, supra, at p 16; Matter of Morgenthau v Erlbaum, 59 NY2d 143, 147.)

In prior cases, this court has converted, or permitted conversion of, proceedings brought by the People seeking writs of prohibition to actions for declaratory judgment where the obvious effect of the criminal court’s ruling extended far beyond the case at bar. (Matter of Morgenthau v Erlbaum, 59 NY2d 143, 153, supra; Matter of Morgenthau v Roberts, 65 NY2d 749.) Defendant, properly concerned only with the application of a particular challenged ruling to his case, lacks the requisite standing to seek a declaration of the rights of other parties in subsequent litigation. (Siegel, NY Prac § 436.) Declaratory relief is available only to the People. (Matter of Morgenthau v Erlbaum, supra.)

Inasmuch as petitioner may not seek relief in the nature of a writ of mandamus, or declaratory relief, the petition should be dismissed.

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

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


text:
    In the Matter of Fred Laier, Appellant, v Robert J. McGuire, as Police Commissioner of the Police Department of the City of New York, et al., Respondents.
    Decided July 11, 1985

      APPEARANCES OF COUNSEL

      Raymond E. Kerno for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Ellen B. Fishman of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (111 AD2d 43).

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


text:
    In the Matter of the Estate of Stella R. Bellows, Deceased. Stephen D. Bellows et al., Respondents; Vera D’Aragon et al., Appellants.
    Argued June 3, 1985;
    decided July 11, 1985

      APPEARANCES OF COUNSEL

      John Peter Sipp and Bruce G. Behrins for appellants.
    A. Ann Armstrong and Barry A. Wadler for respondents.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by former Justice Seymour Boyers at the Appellate Division (103 AD2d 594), with costs payable out of the estate to all parties appearing separately and filing separate briefs.

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


text:
    Richard Caton et al., Appellants, v Doug Urban Construction Company, Respondent.
    Decided July 11, 1985

      APPEARANCES OF COUNSEL

      John T. Bertell and Bruce Kevin Koren for appellants.

      Michael J. Kanaley, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that whether the default judgment in the underlying action against the Catons, the present plaintiffs, was reasonable in amount requires proof in the present action for common-law indemnity of the injuries and damages suffered by the Smarts, the plaintiffs in the underlying action. We add only that neither the presumption of regularity of the default judgment nor CPLR 4515 is sufficient to establish in this action that the judgment awarded in the underlying action reasonably evaluated the injuries and damages suffered by the Smarts.

The presumption of regularity is sufficient to sustain the judgment in the underlying action against the present plaintiffs who defaulted, but not against the present indemnity defendant who was never “vouched in” to that action (see, Glens Falls Ins. Co. v Wood, 8 NY2d 409). And although CPLR 4515 permits an expert witness to state an opinion without specifying the data upon which it is based, it does not avoid the necessity for presentation of such data. Its purpose is, rather, to make the expert’s presentation more readily understandable by permitting the opinion to be stated on direct, and leaving the development of the data on which it is based for cross-examination (Richardson, Evidence § 370 [Prince 10th ed]). It does not, however, change the basic principle that an expert’s opinion not based on facts is worthless (Cooke v Bernstein, 45 AD2d 497,500; see, Tarlowe v Metropolitan Ski Slopes, 28 NY2d 410). To permit plaintiffs to present an opinion as to which they are precluded from presenting the factual basis would be to allow them to circumvent the preclusion order by doing indirectly what they have been foreclosed from doing directly.

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

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


text:
    In the Matter of Worldwide Management Consultants, Inc., Appellant; Waterfront Commission of New York Harbor, Respondent.
    Decided July 11, 1985

      APPEARANCES OF COUNSEL

      William J. Comiskey for appellant.

      David B. Greenfield for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (109 AD2d 626).

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


text:
    Marie R. Birdsall, Appellant, v Montgomery Ward and Company, Inc., et al., Respondents.
    Decided July 11, 1985

      APPEARANCES OF COUNSEL.

      Arnold M. Gordon for appellant.

      Margaret Comard Lynch for Montgomery Ward and Company, Inc., respondent.

      Bruce A. Bell for Otis Elevator Company, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (109 AD2d 969).

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


text:
    William I. Weisberg et al., Appellants, v Chemical Bank, Respondent.
    Decided July 11, 1985

      APPEARANCES OF COUNSEL

      Mordecai Rosenfeld for appellants.

      John B. Wynne and Adrienne B. Packer for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (108 AD2d 639).

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


text:
    In the Matter of Gina De Luise, Individually and as President of 2765-69 Mathews Avenue Tenants Association, Appellant, v Anthony Gliedman, as Commissioner of the New York City Department of Housing Preservation and Development, et al., Respondents.
    Decided July 11, 1985

      APPEARANCES OF COUNSEL

      Robert J. Anderson for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath and Gillian Sacks of counsel), for Anthony Gliedman, as Commissioner of the New York City Department of Housing Preservation and Development, respondent.

      Mark Walfish for E & O Associates, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. We conclude that the determination was supported by substantial evidence and that there was no abuse of discretion as a matter of law.

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


text:
    In the Matter of Wellington Estates, Ltd., Appellant, v New York City Conciliation and Appeals Board, Respondent.
    Decided July 11, 1985

      APPEARANCES OF COUNSEL

      Clifford A. Entes for appellant.

      Edward Chazin and Timothy O’Donnell for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (108 AD2d 685).

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


text:
    In the Matter of the Judicial Settlement of the Accounts of Proceedings of the Bank of New York, as Trustee, under the Last Will and Testament of Langdon P. Marvin, Deceased, et al., Respondents. Langdon P. Marvin, Jr., Appellant.
    Decided July 11, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right (CPLR 5601; Cohen and Karger, Powers of the New York Court of Appeals § 27, at 110; § 51, at 232).


text:
    Jo A. Fries, Respondent, v Phillip M. Fries, Appellant.
    Decided July 11, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that the order appealed from does not finally determine the action within the meaning of the Constitution and that no substantial constitutional question is directly involved.


text:
    In the Matter of William C. Brennan, Jr.
    Decided July 25, 1985
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable William C. Brennan, Jr., is suspended, with pay, effective immediately, from his office of Justice of the Supreme Court of the State of New York, Eleventh Judicial District, pursuant to NY Constitution, article VI, § 22 (f), (g) and Judiciary Law § 44 (8) (b), (c).

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


author: Jasen, J. Kaye, J.

text:
    Marta H. Tebbutt et al., Appellants, v Robert Virostek, Respondent.
    Argued March 28, 1985;
    decided June 13, 1985

      APPEARANCES OF COUNSEL

      Daniel H. Mahoney for appellants.

      Randall J. Ezick and Dianne Bresee Mayberger for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Plaintiff Marta Tebbutt seeks to recover damages for her “pain, severe disappointment, anxiety, despondency, bitterness and suffering” attendant upon the stillbirth of her child. Defendant allegedly caused the death of the fetus, unbeknownst to plaintiff, approximately one month earlier when he negligently performed an amniocentesis. Plaintiff alleges no physical injury distinct from that suffered by the fetus, nor, despite the suggestion in one of the dissenting opinions, has there been proof of these allegations.

The case before us is governed by Vaccaro v Squibb Corp. (52 NY2d 809), in which a mother sought recovery for emotional injuries caused by harm done to her child in útero of which she did not learn until the birth, which occurred some time after the harm was inflicted. There, we rejected the contention that the defendants owed any duty to the mother. Similarly, in the case before us, we must reject the mother’s claim for damages for emotional distress.

Nor do we accept plaintiffs’ contention that recovery is warranted because Marta Tebbutt was placed within the zone of danger by defendant’s actions. While recovery may be had by one suffering distress in consequence of the observation of the serious injury or death of a member of his or her immediate family from within the zone of danger, the observation must be contemporaneous with the conduct causing the injury or death, which plaintiffs at bar have not alleged (see, Bovsun v Sanperi, 61 NY2d 219, 233). Plaintiffs also failed to establish the existence of a duty running from defendant to plaintiff Marta Tebbutt pursuant to Johnson v State of New York (37 NY2d 378 [duty of hospital to transmit truthfully information concerning a relative’s death or funeral]), which has been limited to its particular facts (Johnson v Jamaica Hosp., 62 NY2d 523, 530).

The dissenters’ reliance on Endresz v Friedberg (24 NY2d 478) and Woods v Lancet (303 NY 349) is misplaced. In Endresz, we held only that no action for wrongful death could be maintained by the personal representative of a stillborn fetus. We also noted that, if the defendants were negligent in causing the automobile accident out of which that action arose, the plaintiff mother could recover for physical and mental injuries she sustained, including emotional upset attending her stillbirths. However, the injuries the plaintiff mother sustained in that case were the direct result of defendants’ breach of a clearly recognized duty to drive with a reasonable degree of care. Citation to Woods v Lancet (supra) similarly begs the duty question, central to resolution of the present appeal. There, we held that an infant child, not his parents, could recover damages for injuries negligently inflicted while he was in útero. Our cases have consistently denied damages for emotional distress to parents of children so injured but born alive (e.g., Vaccaro v Squibb Corp., 52 NY2d 809, supra).

Jasen, J.

(dissenting). The majority holds that a mother may not recover for emotional distress resulting from the stillbirth of her child, where the unborn child died as the result of the negligent penetrations of the womb by a physician in performing an amniocentesis. By holding that the physician’s conduct fails to give rise to any cognizable cause of action, the majority relegates the unborn child to a juridical limbo, where negligent acts, with fatal effect, performed upon the child are neither compensated nor deterred.

The facts, gleaned from the complaint and presumed to be true for the purpose of determining the sufficiency of the claim, are as follows. In June 1980, Marta H. Tebbutt and her husband, Robert G. Tebbutt, were expecting their first child, and consulted with Dr. Robert Virostek. Dr. Virostek limited his practice to the specialty of gynecology and obstetrics. In order to insure the health of the unborn child, Dr. Virostek, on July 11, 1980, suggested that Marta, then 35 years of age, undergo amniocentesis. Dr. Virostek informed Mr. and Mrs. Tebbutt that amniocentesis would involve puncturing the womb with a needle syringe in order to draw fluid, but he assured them that the test had been done “hundreds of times without any negative effects.”

At Saranac Lake General Hospital, on July 30, 1980, Dr. Virostek endeavored to perform the amniocentesis. He inserted a syringe into Marta’s lower abdomen, approximately 4% inches below her navel. Dr. Virostek informed Marta that he was unable to extract any fluid, and he then inserted the syringe into her abdomen two more times. Prior to the amniocentesis, the fetal heart monitor showed the fetus to be viable and normal in size for a 16-week gestation. On August 22,1980, at a regularly scheduled appointment, Marta appeared at Dr. Virostek’s office, but he was not present. A nurse, however, performed a procedure to monitor the fetal heart beat, and she informed Marta that no heart beat could be detected. Upon inquiry by Marta on August 25, 1980, Dr. Virostek informed her that the laboratory report indicated that the amniotic fluid sample could not be evaluated due to an excessive amount of blood in the sample. On that date, Dr. Virostek further informed Marta that her unborn child was normal.

On August 30,1980, Marta suffered cramps, pain and hemorrhaging. She met Dr. Virostek at the hospital on September 3, 1980, which was not a date upon which there was a scheduled appointment, and Dr. Virostek examined Marta with a fetal heart monitor. He informed Marta that he could not detect a fetal heart beat. The next day, Marta went to the Champlain Valley Physicians Hospital in Plattsburgh to have a sonogram performed to determine the status of the unborn child. After this procedure, the doctors in the Champlain Valley Hospital refused to tell Marta whether her child was dead or alive. Rather, they referred her back to Dr. Virostek. On September 5,1980, Marta was examined by a gynecologist and obstetrician in Albany, who informed her that her child was dead. Marta entered the Albany Medical Center Hospital that afternoon, and on September 6, 1980, labor was induced and she was delivered of a stillborn male child. The autopsy performed on the stillborn child indicated that the child’s size was consistent with a 16-week gestation and there were no growth abnormalities. Also, examination of the stillborn child revealed three hemorrhagic blisters, each approximately one centimeter in diameter. The Albany physician stated “that there is a possibility of a cause and effect relationship between the amniocentesis, the return of the bloody fluid at the time, and the subsequent fetal death”.

Plaintiffs Marta and Robert Tebbutt commenced this action alleging, inter alia, medical malpractice and negligence in the manner in which defendant performed the amniocentesis. Marta alleged no physical injury distinct from that suffered by her unborn child and sought to recover for her “pain, severe disappointment, anxiety, despondency, bitterness, and suffering.” Defendant, Dr. Virostek, moved for summary judgment on the ground that plaintiff’s complaint, alleging only emotional distress, lacked merit as a matter of law. Special Term, relying upon Friedman v Meyer (90 AD2d 511, appeal dismissed 59 NY2d 763), granted defendant’s motion and dismissed the complaint. The Appellate Division, Third Department, affirmed on “constraint” of Friedman and cases cited therein, while noting “we are sympathetic to plaintiff’s action and, in fact, believe the better rule would recognize plaintiff’s action”. (Tebbutt v Virostek, 102 AD2d 231.) For the reasons that follow, I strongly recommend reversal.

We have previously recognized that an individual may recover damages for the negligent infliction of emotional or mental distress, even if unaccompanied by physical injury. (Johnson v State of New York, 37 NY2d 378; Kennedy v McKesson Co., 58 NY2d 500, 504; Vara v Drago, 24 AD2d 888.) The nature of damages as purely psychic will not defeat the cause of action, provided the elements of a cognizable cause of action exist. (See, Tymann, Bystander’s Recovery for Psychic Injury in New York, 32 Albany L Rev 489, 494; Becker v Schwartz, 46 NY2d 401, 421 [Wachtler, J., dissenting].)

In this case, defendant contends that no recovery may be had for indirect emotional harm suffered as the result of injury to another. Plaintiff, in contrast, maintains that her emotional injuries result from the breach of a direct duty owed to her. The controversy before us has therefore been distilled into the simple inquiry of whether defendant owed plaintiff a duty of care.

As Chief Judge Wachtler has aptly noted, when a child is en ventre sa mere at the time of the commission of the tort, “there are two identifiable beings within the zone of danger each of whom is owed a duty independent of the other and each of whom may be directly injured.” (Albala v City of New York, 54 NY2d 269, 272; see, Becker v Schwartz, 46 NY2d 401, 412, supra; 1 Pegalis and Wachsman, American Law of Medical Malpractice § 4:43.) In the instant action, the independent duty flowing from the physician to the mother arises from the professional relationship existing between Marta Tebbutt and Dr. Virostek, and by virtue of the physiological and biological bond existing between the mother and her unborn child. Dr. Virostek rendered medical care and advice solely to Marta Tebbutt for the purpose of assisting her in making informed decisions to protect the development and safety of her unborn child. At the time of the commission of the tortious act, there was but one patient to whom defendant owed an absolute duty of care pursuant to a professional relationship: Marta Tebbutt. (See, Endresz v Friedberg, 24 NY2d 478, 485-486; compare, Johnson v Jamaica Hosp., 62 NY2d 523; Vacarro v Squibb Corp., 52 NY2d 809.) The interests of the mother and the unborn child are intertwined by nature during the mother’s pregnancy. Due to these relationships, a tortious act, which results in the death of an unborn child, represents a breach of a direct duty to the mother. Defendant’s infringement upon the mother’s freedom from mental distress was occasioned by the breach of a distinct and independent duty flowing to the mother.

Concomitant with the view that the mother is owed a distinct duty of care, women have traditionally been given recovery for their own injuries caused by the stillbirth or miscarriage. (Prosser and Keeton, Torts, at 369, n 30 [5th ed 1984].) In New York, the mother’s immediate mental distress inflicted by the death of the unborn child has unequivocally been recognized as a cognizable element of the mother’s independent injuries. (Endresz v Friedberg, 24 NY2d 478, 487, supra; Butler v Manhattan Ry. Co., 143 NY 417, 420; Matter of Logan, 3 NY2d 800, affg 2 AD2d 842, affg 4 Misc 2d 283; Witrak v Nassau Elec. R. R. Co., 52 App Div 234 [Bartlett, J.].) Compensation for the mother’s emotional distress attendant to the stillbirth is allowed by the vast majority of sister states and uniformly recognized by scholarly commentators. (See, e.g., Tunnicliffe v Bay Cities Consol. Ry. Co., 102 Mich 624, 629-630, 61 NW 11; Snow v Allen, 227 Ala 615, 151 So 468; Graf v Taggert, 43 NJ 303, 312-313, 204 A2d 140; Finer v Nichols, 158 Mo App 539,138 SW 889; Panagopoulous v Martin, 295 F Supp 220, 227 [applying W Va law]; McKillip v Zimmerman, 191 NW2d 706, 709 [Iowa]; Stafford v Roadway Tr. Co., 70 F Supp 555,570 [applying Pa law], mod on other grounds 165 F2d 920; Mone v Greyhound Lines, 368 Mass 354, 359, 331 NE2d 916, 918-919; Occhipinti v Rheem Mfg. Co., 252 Miss 172, 172 So 2d 186; Prescott v Robinson, 74 NH 460, 69 A 522; Marko v Philadelphia Transp. Co., 420 Pa 124,125, 216 A2d 502, 503-504; Ezell v Morrison, 380 So 2d 664 [La App]; see, Recent Developments, Torts-Wrongful Death — Unborn Child, 70 Mich L Rev 729, 749; Recent Developments, Torts-Wrongful Death Recovery for Wrongful Death of a Stillborn Fetus Examined, 21 Vill L Rev 994, 999; Friedman, Legal Implications of Amniocentesis, 123 U of Pa L Rev 92, 144, n 261; Note, Recovery for the Tortious Death of the Unborn, 33 SC L Rev 797, 811; 1935 Report of NY Law Rev Commn, Liability for Inflicting Injuries On a Child En Ventre Sa Mere 453, 470; Thornton & McNiece, Torts, 33 NYU L Rev 165, 173.)

Our decision in Endresz v Friedberg (supra) is controlling upon the question presented by this appeal. In Endresz, we held that there is no right of recovery under this State’s wrongful death statute by the personal representative of a stillborn child who died as the result of injuries received while en ventre sa mere. Plaintiff, Janice Endresz, was seven months pregnant when injured in an automobile accident in the winter of 1965. Two days after the accident, Janice was delivered of stillborn twins, a male and a female. While wrongful death recovery for the deaths of their unborn children was barred, Chief Judge Fuld, speaking for the court, emphasized that the parents would not be unrecompensed for their tragic loss: “[T]he mother may sue for any injury which she sustained in her own person, including her suffering as a result of the stillbirth, and the father for loss of her services and consortium” (24 NY2d, at p 484). In an effort to demonstrate that the parents are entitled to recovery for damages suffered in their own right, where the death of their children was caused by a third party’s wrongful act, Chief Judge Fuld continued: “If the defendants herein were negligent, Mrs. Endresz may recover for the injuries she sustained, both physical and mental, including the emotional upset attending the stillbirths. And the plaintiff Steve Endresz retains his derivative action for the loss of her services and consortium.” (24 NY2d 478, at p 487 [emphasis supplied].)

The ratio decidendi of Endresz manifestly contemplated a mother’s recovery for her own mental and physical injuries immediately arising from the stillbirths. Recovery of such damages was also viewed by the Endresz court as a means by which to vitiate the harshness of denial of wrongful death damages.

The majority today, however, disregards the Endresz view, and the policies which that decision represents. Adherence today to the Endresz view is compelled by more than due respect to the doctrine of stare decisis. Denial of recovery to the mother for her emotional distress resulting from the stillbirth of her child, which was caused by the negligent conduct of defendant, effectively immunizes the defendant from all liability for his negligent conduct with fatal effect. Denial of recovery for emotional distress creates an anomalous situation, to wit: liability is imposed where defendant’s negligence caused mere injury to the subsequently born child (Woods v Lancet, 303 NY 349), while all liability evaporates when the negligence has had fatal effect. This, I submit, is unjust and unwise.

When the majority’s view is analyzed in terms of the conceptual framework established by this court to address prenatal torts, the logical poverty of its holding is manifest. A stillborn child has not been deemed a “person” to whom a duty of care flowed for purposes of the wrongful death statute. (Endresz v Friedberg, supra.) The majority, consistent with the decisions of this court, adheres to the view that no duty of care is owed to a stillborn child for the purposes of a personal injury action. It should follow that if the unborn child is not deemed a person to whom a duty of care is owed during prenatal care, the duty of care flows to the mother as the single individual biologically intertwined with the unborn child. By holding that a duty of care flows to neither the unborn child nor the mother, the majority renders the mother a bystander to medical procedures performed upon her own body. The practical effect of the majority’s view is that the physician bears no duty of care if his negligence causes the death of the unborn child and the concomitant emotional injury to the mother. The unborn and mothers are entitled to greater protection.

The public policy reasons typically advanced to deny recovery of damages for emotional distress are not implicated in this case. In Becker v Schwartz (46 NY2d 401, 414-415), the damages for emotional harm, sought by the parents of a child suffering from abnormalities, were deemed incalculable since the emotional suffering was mitigated by the emotional fulfillment arising from the birth. The combination of positive and negative emotions rendered the ascertainment of damages too speculative. The death of the unborn child in this case eliminates any possibility of such mitigation. Nor can it be argued that recovery here would extend liability beyond rational practical boundaries. (See, Tobin v Grossman, 24 NY2d 609, 618.) By reasons of the professional physician-patient relationship and physiology, liability for emotional distress extends only to the mother, and not to older children, fathers, grandparents, relatives or others in loco parentis, who, as bystanders, could, under these circumstances, suffer emotional harm only vicariously. The perimeter of liability is thus drawn by nature and contract. Finally, the injury to the unborn child, which resulted in the stillbirth, was caused by the affirmative, negligent conduct of the physician. The abnormality of the child, addressed in Becker v Schwartz (supra) was not caused by the negligent physician. (See also, Howard v Lecher, 42 NY2d 109.)

In sum, plaintiff’s claim for emotional distress against the defendant falls under a traditional negligence theory — i.e., plaintiff would be required to show that the defendant owed her a duty to use reasonable care in performing the genetic testing procedure, that this defendant’s acts constituted a breach of that duty, and that the negligently performed procedure proximately caused injury to the plaintiff. It has been properly noted that “[sjociety has an interest in insuring that genetic testing is properly performed * * * The recognition of a cause of action for negligence in the performance of genetic testing would encourage the accurate performance of such testing by penalizing physicians who fail to observe customary standards of good medical practice.” (Gildiner v Thomas Jefferson Univ. Hosp., 451 F Supp 692, 696.) Absent recognition of the cause of action in this case, such negligence goes entirely unanswered.

Accordingly, the order of the Appellate Division should be reversed.

Kaye, J.

(dissenting). Dismissal of plaintiff’s complaint in this instance leaves no one who can recover for alleged wrongdoing, and frees defendant from responsibility. Defendant performed the complained-of acts on a person in his care. Were the child born alive, a remedy would lie against defendant (see, Woods v Lancet, 303 NY 349). An arguably more grievous injury while the child is in útero, resulting in a stillbirth, should not go unredressed. Where the law declares that the stillborn child is not a person who can bring suit, then it must follow in the eyes of the law that any injury here was done to the mother. I would therefore reverse the order below, and reinstate the complaint.

Chief Judge Wachtler and Judges Simons and Alexander concur in memorandum; Judge Meyer concurs on constraint of Vaccaro v Squibb (52 NY2d 809); Judges Jasen and Kaye dissent and vote to reverse in separate dissenting opinions; Judge Titone taking no part.

Order affirmed, with costs.

       Her husband asserts a derivative claim.

      . Robert’s derivative action seeking compensation for loss of consortium is contingent upon whether Marta has alleged a cognizable claim. References to “plaintiff” thus refer only to Marta.

      . By way of dictum in Matter of Logan (4 Misc 2d 283, 285, affd 2 AD2d 842, affd 3 NY2d 800), it was noted that “[o]f course, the pregnant mother may sue on any injury which she suffered in her own person.” (Emphasis added.)

      . Twenty-eight jurisdictions have expressly ruled in favor of permitting recovery for the death of a stillborn child, at least where the fetus was viable, either in cases of first impression or in decisions reversing prior law. (Eich v Town of Gulf Shores, 293 Ala 95,300 So 2d 354 [1974]; Summerfield v Superior Ct.,_Ariz_,_P2d_[en banc] [1985]; Hatala v Markiewicz, 26 Conn Sup 358,224 A2d 406 [1966]; Worgan v Greggo & Ferrara, 50 Del 258,128 A2d 557 [1956]; Simmons v Howard Univ., 323 F Supp 529 [DDC 1971]; Porter v Lassiter, 91 Ga App 712, 87 SE2d 100 [1955]; Chrisafogeorgis v Brandenberg, 55 Ill 2d 368,304 NE2d 88 [1973]; Britt v Sears, 150 Ind App 487, 277 NE2d 20 [1972]; Hale v Manion, 189 Kan 143, 368 P2d 1 [1962]; Mitchell v Couch, 285 SW2d 901 [Ky 1955]; State ex rel. Odham v Sherman, 234 Md 179,198 A2d 71 [1964]; Mone v Greyhound Lines, 368 Mass 354,331 NE2d 916 [1975]; O’Neill v Morse, 385 Mich 130, 188 NW2d 785 [1971]; Verkennes v Corniea, 229 Minn 365, 38 NW2d 838 [1949]; Rainey v Horn, 221 Miss 269, 72 So 2d 434 [1954];
        White v Yup, 85 Nev 527,458 P2d 617 [1969]; Poliquin v MacDonald, 101 NH 104,135 A2d 249 [1957]; Werling v Sandy, 17 Ohio St 3d 45, 476 NE2d 1053 [1985]; Evans v Olson, 550 P2d 924 [Okla 1976]; Libbee v Permanente Clinic, 268 Ore 258, 518 P2d 636 [1974]; Presley v Newport Hosp., 117 RI 177, 365 A2d 748 [1976]; Fowler v Woodward, 244 SC 608, 138 SE2d 42 [1964]; Moen v Hanson, 85 Wn 2d 597,537 P2d 266 [1975]; Baldwin v Butcher, 155 W Va 431, 184 SE2d 428 [1971]; Kwaterski v State Farm Mut. Auto Ins. Co., 34 Wis 2d 14, 148 NW2d 107 [1967]; Wascom v American Indem. Corp., 383 So 2d 1037 [La App 1980]; Salazar v St. Vincent Hosp., 95 NM 150, 619 P2d 826 [1980]; Vaillancourt v Medical Center Hosp., 139 Vt 138, 425 A2d 92 [1980].)
      By comparison, 10 jurisdictions, in addition to New York, deny wrongful death recovery for stillborn infants. (Norman v Murphy, 124 Cal App 2d 95, 268 P2d 178 [1954]; Stern v Miller, 348 So 2d 303 [Fla 1977]; McKillip v Zimmerman, 191 NW2d 706 [Iowa 1971]; State ex rel. Hardin v Sanders, 538 SW2d 336 [Mo 1976]; Drabbels v Skelly Oil Co., 155 Neb 17, 50 NW2d 229 [1951]; Graf v Taggert, 43 NJ 303, 204 A2d 140 [1964]; Gay v Thompson, 266 NC 394,146 SE2d 425 [1966]; Hogan v McDaniel, 204 Tenn 235,319 SW2d 221 [1958]; Nelson v Peterson, 542 P2d 1075 [Utah 1975]; Lawrence v Craven Tire Co., 210 Va 138,169 SE2d 440 [1969].) For a further analysis of the cases in various jurisdictions, see, Annotation, at 84 ALR3d 411 (1978).
      The commentators on the subject of death actions for unborn children are virtually unanimous in favor of recovery for viable stillborn infants. (See, e.g., Speiser, Recovery for Wrongful Death § 4:38, at 564 [2d ed 1975]; Comment, Mone v Greyhound Lines, Inc: A Limited Advance in the Law of Prenatal Wrongful Death, 11 New Eng L Rev 669 [1976]; 7 Tex Tech L Rev 821 [1976]; 21 Vill L Rev 994 [1975-1976]; Comment, Wrongful Death and the Unborn, 13 J Fam Law 99 [1973-1974]; 38 Temp LQ 470 [1965]; Del Tufo, Recovery for Prenatal Torts: Actions for Wrongful Death, 15 Rutgers L Rev 61 [I960].)

      . The importance of stare decisis has been observed in a related context (Bovsun v Sanperi, 61 NY2d 219, 243 [Wachtler, J., dissenting]).


text:
    In the Matter of Theodore R. Dusanenko et al., Appellants, v Sandra Lefever et al., Constituting the Board of Elections of the County of Rockland, et al., Respondents.
    Submitted August 26, 1985;
    decided August 26, 1985
   Motion for leave to appeal and motion for leave to cross-appeal each dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type contemplated by CPLR 5602 (a) (2).


text:
    In the Matter of the Application of Fernando Ferrer et al., Appellants, v Orlando Velez et al., Constituting the Board of Elections of the City of New York, et al., Respondents. (And Another Proceeding.)
    Submitted August 26, 1985;
    decided August 26, 1985
   Motion for leave to appeal granted. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous Appellate Division order of affirmance absent the direct involvement of a substantial constitutional question.


text:
    In the Matter of Carol A. Siwek, Appellant, v Edward J. Mahoney et al., Constituting the Board of Elections of the County of Erie, et al., Respondents.
    Submitted August 26, 1985;
    decided August 26, 1985
   Motion for leave to appeal granted. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous Appellate Division order of affirmance absent the direct involvement of a substantial constitutional question.


text:
    In the Matter of Brenda Z. Steere, Appellant, v Trudy L. Mason et al., Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Aaron D. Maslow and Debra Silber for appellant.

      Robert Allan Muir, Jr., for Trudy Mason, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Susan R. Rosenberg and Michael C. Harwood of counsel), for Vincent Cuttita and others, constituting the Board of Elections of the City of New York, respondents.
   OPINION OF THE COURT

Order affirmed, without costs (see, Matter of Staber v Fidler, 65 NY2d 529).

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


text:
    In the Matter of Joseph R. Erazo, Petitioner, v Board of Elections of the City of New York, Respondent. In the Matter of Alan Zimmerman, Appellant, v Board of Elections of the City of New York et al., Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Kathryn E. Freed for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Michael C. Harwood and Susan R. Rosenberg of counsel), for Board of Elections of the City of New York, respondent.

      Lawrence A. Mandelker for Kenneth Lipper, respondent.
   OPINION OF THE COURT

Order affirmed, without costs (see, Matter of Staber v Fidler, 65 NY2d 529).

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


text:
    In the Matter of William Jones et al., Appellants, v John J. Flynn et al., Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Robert D. Meade and Donald J. Sullivan for appellants.

      John E. Watkins, Jr., for John J. Flynn, respondent.

      Jay B. Hashmall for Bernice Spreckman and others, respondents.
   OPINION OF THE COURT

Order affirmed, without costs. The record supports the determination by the Appellate Division that petitioners failed to sustain their burden of demonstrating that the conduct engaged in by respondent Flynn constituted fraud or that it resulted in an irregularity sufficient to declare the results of the June 17, 1985 meeting a nullity.

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


text:
    In the Matter of H. Richard Barrett, Appellant, v George P. Scaringe et al., Constituting the Albany County Board of Elections, et al., Respondents. In the Matter of Fernando Ferrer et al., Appellants, v Orlando Velez et al., Constituting the Board of Elections of the City of New York, et al., Respondents. In the Matter of Dave Fromson, Appellant, v Sandra Lefever et al., Constituting the Rockland County Board of Elections, et al., Respondents. In the Matter of Carol A. Siwek, Appellant, v Edward J. Mahoney et al., Constituting the Board of Elections of the County of Erie, et al., Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Lewis B. Oliver for H. Richard Barrett, appellant.

      Paul A. Victor and Stanley Schlein for Fernando Ferrer and others, appellants.

      Sanford S. Dranoff, Martin T. Johnson and Sheri Yodowitz for Dave Fromson, appellant.

      Dennis E. Ward for Carol A. Siwek, appellant.

      Frank V. Bifera for Nicholas Coluccio, respondent.

      William J. Conhoy, II, and F. Patrick Jeffers for Albany County Board of Elections, respondent.

      Miguel A. Santiago for Jose Gonzalez, respondent.

      J. Martin Cornell for John J. Cain and others, respondents.

      Eugene F. Pigott, Jr., County Attorney (John R. Drexelius, Jr., of counsel), for Erie County Board of Elections, respondent.

      Michael L. Broderick for James D. Griffin, respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Divisions should be affirmed, without costs.

The common issue presented by these four appeals is whether the designating petition of a candidate, seeking party nomination for public office, should be invalidated on the ground that the petition cover sheet slightly understated the total number of signatures actually contained in the petition. This court, under circumstances closely analogous to those herein presented, has held an understatement of signatures to have constituted an inconsequential error which did not warrant invalidation of the designating petition. (Matter of Jonas v Black, 63 NY2d 685, affg 104 AD2d 466.) Accordingly, the petitions herein at issue satisfy the requirements of Election Law § 6-134 (2). (See, Matter of Garrett v Alter, 65 NY2d 529.)

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

In each case: Order affirmed, without costs, in a memorandum.


text:
    Carl F. Grillo, as a Member of the Executive Committee of the Richmond County Committee of the Liberal Party, et al., Respondents, v Donald S. Harrington, Individually and as Chairman of the Liberal Party of the State of New York, et al., Appellants. Miriam P. Burns, Individually and as an Enrolled Liberal in New York County, et al., Appellants, v Board of Elections of the City of New York et al., Respondents. Liberal Party of the State of New York et al., Appellants, v Board of Elections of the State of New York et al., Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Charles J. Moxley, Jr., for appellants.

      Raymond B. Harding for respondents.
   OPINION OF THE COURT

In Grillo v Harrington: Order affirmed, without costs. For the reasons stated in B urns v Board of Elections and Liberal Party of State of N. Y. v Board of Elections (both decided herewith) and in Matter of Geller v Board of Elections (65 NY2d 956 [decided herewith]), we conclude (1) that the New York County and Kings County County Committees of the Liberal Party were authorized under Liberal Party rules to act together with the concededly properly constituted County Committees of Queens, Richmond and The Bronx to grant Wilson-Pakula authorization to candidate Carol Bellamy, (2) that whether weighted voting or voting by proxy could be used at the authorization meeting has not been preserved for our review, (3) that the certificate of authorization of Bellamy as the Liberal Party candidate for Mayor of New York filed with the City Board of Elections on July 12, 1985 is valid, and (4) that the certificate filed July 15, 1985 purporting to authorize the candidacy of Edward I. Koch for that office is invalid.

In Burns v Board of Elections: Order affirmed, without costs. We agree with the Appellate Division that challenge to the New York County County Committee of the Liberal Party is barred by Election Law § 16-102 (2).

In Liberal Party of State of N. Y. v Board of Elections: Order affirmed, without costs. We agree with the Appellate Division that the eight district leaders, although not elected as County Committee members, nevertheless constitute members of the New York County County Committee of the Liberal Party (Matter of Lucitra v Power, 8 NY2d 871, affg 10 AD2d 996) and that, with their inclusion, the County Committee was properly organized, there having been no timely challenge to the other 510 members of the Committee (see, Burns v Board of Elections [decided herewith]).

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


text:
    In the Matter of Frances A. Conklin, Appellant, v William J. Canary et al., Constituting the Board of Elections of the County of Suffolk, et al., Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Herbert A. Smith, Jr., for appellant.

      E. Thomas Boyle for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (112 AD2d_).

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


text:
    In the Matter of Lillian Jonas et al., Appellants, v Otto Velez et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      John C. Klotz and Kathryn E. Freed for appellants.

      Sol Rudes for Seymour Friedman, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the judgment of Supreme Court, New York County, reinstated, without costs.

Essential to the integrity of the petition process is the subscribing witness’s statement authorized by Election Law § 6-132 and particularly that portion of it which contains the total number of signatures on the petition sheet to which it is appended. We have, therefore, consistently held that alteration of the statement which is unexplained and uninitialed will result in the invalidation of the petition sheet (Matter of Sheldon v Sperber, 45 NY2d 788; Matter of Klemann v Acito, 45 NY2d 796, affg 64 AD2d 952; Matter of Nobles v Grant, 41 NY2d 1048, affg 57 AD2d 600). The fact that the alterations here resulted in the manifestation of correct information, or that the numbers inserted were smaller, rather than larger, as in Matter of Berger v Acito (64 AD2d 949, lv denied 45 NY2d 707), does not remedy the legal deficiency (see, Matter of White v McNab, 40 NY2d 912, 913). It does not unduly burden the designating petition process to require that a subscribing witness whose statement has been changed initial the change and explain the reason for it (see, Matter of Roman v Sharpe, 42 NY2d 986, 987; cf. Matter of Grancio v Coveney, 60 NY2d 608, 611).

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

Order reversed, etc.


text:
    In the Matter of Dawn Geller et al., Respondents, v Board of Elections of the City of New York, Respondent, and Herbert Dicker et al., Appellants.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      H. Spencer Kupperman for appellants.

      Raymond B. Harding for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (112 AD2d_).

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


text:
    Bernard Sack et al., Appellants, v Board of Elections of the City of New York et al., Respondents. Carl F. Grillo, Respondent, v Orlando Velez et al., Constituting the Board of Elections of the City of New York, Appellants. Raymond B. Harding et al., Respondents, v Orlando Velez et al., Constituting the Board of Elections of the City of New York, Appellants.
    Argued August 26, 1985;
    decided August 28, 1985
    APPEARANCES OF COUNSEL

      Charles J. Moxley, Jr., for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Michael C. Harwood of counsel), for Board of Elections of City of New York, respondent.

      Raymond B. Harding, respondent pro se, and for Carol Bellamy and others, respondents.
   OPINION OF THE COURT

Order affirmed, without costs. We agree with the holding of the referee, confirmed by Special Term and affirmed by- the Appellate Division, that objection to the validity of the New York County County Committee of the Liberal Party, by whomever made, was required to be made within 10 days after the October 1984 organizational meeting of the Committee, at the latest (Election Law § 16-102 [2]).

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


text:
    In the Matter of Lewis R. Friedman, Respondent, v Board of Elections of the City of New York, Respondent, and Gerald Sabath et al., Appellants. (And Two Additional Proceedings.)
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Henry T. Berger for appellants.

      Lawrence A. Mandelker for respondents.
   OPINION OF THE COURT

Order reversed, without costs, and judgments of Supreme Court, New York County, reinstated (see, Matter of Scoville v Cicoria, 65 NY2d 972, decided herewith; see also, Election Law § 16-102 [1]).

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


text:
    In the Matter of Audrey G. Hochberg, Respondent, v Antonia D’Apice et al., Constituting the Board of Elections of the County of Westchester, Respondents, and Anthony J. Colavita et al., Appellants. (And Another Proceeding.)
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Michael Amodio and Aldo V. Vitagliano for appellants.

      John W. De Marco for Audrey G. Hochberg, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (112 AD2d_).

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


text:
    In the Matter of Joyce Bland et al., Appellants, v Board of Elections of the City of New York et al., Respondents. (And Another Proceeding.)
    Argued August 26, 1985;
    decided August 28, 1985
    APPEARANCES OF COUNSEL

      Paul Wooten and Gloria M. Dabiri for appellants.

      Henry Stanziale for respondents.
   OPINION OF THE COURT

Order affirmed, without costs (see, Matter of Staber v Fidler, 65 NY2d 529).

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


text:
    In the Matter of Gerald H. Liepshutz, Respondent, v Lawrence Palmateer, Jr., et al., Constituting the Greene County Board of Elections, Respondents, and James Battisti, Appellant.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Thomas J. Spargo for appellant.

      Paul M. Whitaker for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (112 AD2d_).

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


text:
    In the Matter of Carolyn Maloney, Appellant, v Board of Elections of the City of New York et al., Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Nicholas Miglino for appellant.

      Paul E. Kerson for William Perkins, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Michael C. Harwood and Susan R. Rosenberg of counsel), for Board of Elections of City of New York, respondent.
   OPINION OF THE COURT

Memorandum.

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

Even if we were to strike the first volume of the candidate’s designating petition because of superfluous pages (see, Matter of Jonas v Black, 63 NY2d 685, affg 104 AD2d 466), the other three volumes of his petition contain more than ample valid signatures to entitle him to a position on the primary election ballot. The remaining defects in the petition cited by appellant, slight overstatements of total signatures on the cover sheets, are inconsequential (see, Matter of Staber v Fidler, 65 NY2d 529).

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Gerald H. Liepshutz, Respondent-Appellant, v Lawrence Palmateer, Jr., et al., Constituting the Greene County Board of Elections, Respondents, and Daniel K. Lalor, Appellant-Respondent.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Dennis B. Schlenker for appellant-respondent.

      Paul M. Whitaker for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly found that the failure of several witnesses to include their proper residence addresses and the town or city in which they reside (Election Law § 6-132 [2]), the inclusion by several individual signers of improper residence addresses, towns, election districts and wards (Election Law § 6-130), and the uncontroverted evidence that additions were made to witness statements after they were signed and not in the witnesses’ presence (see, Matter of Jonas v Velez, 65 NY2d 954 [decided herewith]; Matter of Sheldon v Sperber, 45 NY2d 788) requires that 253 of the designating petition’s 528 signatures be stricken, leaving an insufficient number of signatures to validate the petition. Thus, we need not reach the issue of the sufficiency of the description of the public office being sought by respondent or the assertions that fraud and irregularity permeated the petition-gathering process.

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

On appeal by respondent Lalor, order affirmed, without costs. Cross appeal by petitioner dismissed, without costs, upon the ground that the cross appellant is not a party aggrieved (CPLR 5511).


text:
    In the Matter of Ruben Franco, Respondent, v Orlando Velez et al., Constituting the Board of Elections of the City of New York, Respondents, and Nicholas C. Cremonese et al., Appellants. (And Another Proceeding.)
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Stanley Schlein and Gerald Sheiowitz for appellants.

      Ruben Franco, pro se, and Ricardo Oquendo for Ruben Franco, respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division found that 21 volumes were submitted by respondent. They were numbered sequentially beginning with “1” and ending with “21”. Although there were no volumes numbered “5”, “12” or “14”, two volumes were each labeled “10” and two separately submitted volumes were labeled “1”. As found below, when these volumes are substituted for volumes “5”, “12” and “14”, there are 21 volumes as indicated on the cover sheet. Moreover, since 5,000 signatures are required and respondent’s petition contained over 18,000 signatures, elimination of these volumes, which contained only some 5,000 signatures, still would leave more than 13,000 valid signatures.

Accordingly, respondent’s petition was properly validated.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Anthony J. Ruggiero, Appellant, v Susan Molinari et al., Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      H. Spencer Kupperman for appellant.

      Thomas J. Spargo for Susan Molinari, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Michael C. Harwood and Susan R. Rosenberg of counsel), for Board of Elections of the City of New York, respondent.
   OPINION OF THE COURT

Order affirmed, without costs (see, Matter of Staber v Fidler, 65 NY2d 529).

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


text:
    In the Matter of Joseph R. Erazo, Respondent, v Israel Ruiz, Appellant, et al., Respondents. (And Another Proceeding.) In the Matter of Maureen McLeod, Appellant, v Angelo Del Toro et al., Respondents. In the Matter of Lorraine Tierney, Appellant, v Angelo Del Toro et al., Respondents. (And Two Other Proceedings.)
    Argued August 26, 1985;
    decided August 28, 1985
    APPEARANCES OF COUNSEL

      Andrew M. Schnier for Israel Ruiz, appellant.

      Robert Allan Muir, Jr., for Joseph R. Erazo, respondent, and Maureen McLeod, appellant.

      James D. Featherstonhaugh for Angelo Del Toro, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Michael C. Harwood and Susan R. Rosenberg of counsel), for Board of Elections of City of New York, respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be reversed, without costs, and the matters remitted to that court for further proceedings in accordance with this memorandum.

In these proceedings, Special Term invalidated the designating petitions of three candidates for the office of President of the New York City Council, finding, among other things, that the cover sheets failed to meet the statutory requirements set forth in Election Law § 6-134 (2). On appeal, the Appellate Division, though entering orders reversing the judgments, stated that it was bypassing “the normal procedure of affirmance and reversal” and simply directed that the candidates be restored to the ballot. There is, however, no predicate for exempting appeals taken in election proceedings from the provisions of CPLR 5522 and 5712 (cf. Matter of Hutson v Bass, 54 NY2d 772).

The failure to predicate its legal determination on any factual setting was error and makes our review impossible. Factual issues are raised, for example, with respect to the sufficiency of notice of objections to a designating petition, the opportunity to prosecute a validation proceeding, waiver, abandonment and estoppel, and several of the challenges appear to rest upon the resolution of disputed questions of fact. Accordingly, the matter should be remitted to the Appellate Division, First Department.

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

In each case: Orders reversed, etc.


text:
    In the Matter of Eugene J. Fox et al., Appellants, v Westchester County Board of Elections et al., Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      William Nathaniel Carroll for appellants.

      Donald Chase Sullivan for respondents.
   OPINION OF THE COURT

Order affirmed, without costs (see, Matter of Staber v Fidler, 65 NY2d 529).

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


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    Barbara M. Scoville et al., Respondents, v Ronald A. Cicoria et al., Appellants, and Stanley Gutowski et al., Constituting the Board of Elections of Livingston County, Respondents.
    Argued August 26, 1985;
    decided August 28, 1985

      APPEARANCES OF COUNSEL

      Thomas J. Spargo for appellants.

      Karen Morris for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by dismissing the petition insofar as it sought to invalidate the designating petitions of candidates for the party positions of delegate and alternate delegate to the 7th District Judicial Convention.

Petitioners are objecting nonparty voters. They brought this proceeding pursuant to Election Law § 16-102 to invalidate petitions jointly designating candidates of the Republican Party for nomination to various countywide public offices in Livingston County and also for the party positions of delegate and alternate delegate to the Convention for the 7th Judicial District. Special Term dismissed the petition for failure to join the election commissioners as necessary parties. On appeal the Appellate Division modified to grant the petitions. It found that petitioners had standing to challenge the petitions of candidates designated for public office and that they also had standing to challenge the designations for party offices inasmuch as the designations in the joint petitions were “inextricably interwoven” and that the objections to the petitions related to and affected all of the candidates, citing Matter of McGoey v Black (100 AD2d 635, 636). It granted petitioners leave to join the Commissioners of Election as necessary parties and, on the merits, invalidated the petitions because of overstatement by 98 the number of signatures on the cover sheet which erroneously stated that the petitions contained 2,021 signatures when in fact they contained only 1,923. This overstatement cannot be said to be inconsequential (see, Matter of Staber v Fidler, 65 NY2d 529).

The general rule is that nonparty voters are aggrieved parties who may challenge designating petitions of candidates for public offices for a failure to follow the statutory requirements (see, Matter of Langley v Erway, 30 AD2d 711, affd 22 NY2d 781; Matter of Martin v Tutunjian, 89 AD2d 1034). They generally are not aggrieved parties entitled to challenge candidates for party offices or candidates designated as a result of a failure to follow party rules (see, Election Law § 6-154 [2]; Matter of Bennett v Justin, 51 NY2d 722; Matter of Stempel v Albany County Bd. of Elections, 97 AD2d 647, 648, affd 60 NY2d 801; Matter of Wydler v Cristenfeld, 35 NY2d 719; compare, Matter of Liepshutz v Palmateer, 112 AD2d_, affd 65 NY2d 963). Thus, petitioners had no standing to challenge the designations for the party positions of delegate and alternate delegate to the Judicial Convention and this was so notwithstanding the fact that the petitions for those party offices were joined with the petitions for various public offices (Matter of Amalfitano v Sadowski, 51 NY2d 719).

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

Order modified, without costs, in accordance with the memorandum herein, and, as so modified, affirmed.

       We take judicial notice that the population of Livingston County is less than 250,000 and, therefore, the statute requires 500 signatures to nominate (Election Law § 6-136 [2] [f]).


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    Shoreham-Wading River Central School District, Respondent, v Town of Brookhaven et al., Appellants. (Action No. 1.) In the Matter of Rita Rech et al., Appellants-Respondents, v Henrietta Acampora, as Supervisor of the Town of Brookhaven, et al., Respondents-Appellants. (Action No. 2.)
    Submitted June 17, 1985;
    decided September 3, 1985
   Motion to dismiss cross appeal taken by respondents-appellants Acampora et al. in Matter of Rech v Acampora granted and cross appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

On the court’s own motion, appeals in both actions dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceedings within the meaning of the Constitution.

Judge Titone taking no part.


text:
    Daniel R. Fafinski, Appellant, v Reliance Insurance Company, Respondent.
    Decided September 5, 1985

      APPEARANCES OF COUNSEL

      Richard V. Slater for appellant.

      T. Alan Brown for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the opinion of Justice Stewart F. Hancock, Jr., and judgment absolute granted to defendant, without costs, in accordance with the stipulation of the parties. We add only that there is nothing in the language of the insurance policy to limit the exclusion of benefits to only those individuals actually convicted under Vehicle and Traffic Law § 1192. The policy exclusion, which tracks the governing statutory provision (Insurance Law § 5103 [b] [2], formerly § 672 [2] [b]), provides that an insurer may exclude from coverage a person injured “as a result of operating a motor vehicle while in an intoxicated condition” within the meaning of section 1192 of the New York Vehicle and Traffic Law. Plaintiff, who had a blood alcohol content of .276% when tested shortly after the accident, asserts that a conviction under section 1192 is required by the subject exclusionary clause. His position would render the exclusion of coverage for intoxicated drivers inapplicable for those drivers who, by virtue of having blood alcohol content in excess of .10%, have committed a per se violation of Vehicle and Traffic Law § 1192 (2), but who, for one reason or another, have not been charged, prosecuted or convicted under section 1192. Such an anomalous result contravenes the legislative purposes of denying coverage for losses resulting from violations of the law (see, Insurance Law § 5103 [b]) and of keeping premiums low (see generally, Montgomery v Daniels, 38 NY2d 41, 62).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, and judgment absolute granted to defendant in a memorandum.


text:
    Benefit Trust Life Insurance Company, Respondent, v John K. Rowland, Appellant.
    Decided September 5, 1985

      APPEARANCES OF COUNSEL

      William D. Scott for appellant.

      Melinda G. Disare for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (107 AD2d 1033).

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


text:
    In the Matter of Jane PP., Respondent, v Paul QQ., Appellant.
    Decided September 5, 1985

      APPEARANCES OF COUNSEL

      James A. Baker for appellant.

      Donald C. Armstrong for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted for a new hearing in accordance with this memorandum.

The burden of proof in a paternity proceeding rests upon the petitioner, who must establish paternity by “ ‘clear and convincing’ evidence, evidence which is ‘entirely satisfactory’ and creates a genuine belief that respondent is the father of the child”. (Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141-142.) The evidence in this case does not meet that standard. Where there is proof in the record that a man other than the respondent has had intercourse with the petitioner during the critical time period, the evidence is insufficient as a matter of law (Matter of Department of Social Servs. v Alan K., 69 AD2d 861; Phillips v Broadwell, 63 AD2d 840; Matter of Ramos v Dorn, 49 AD2d 522).

While the failure of a respondent to testify on his own behalf in a paternity proceeding does “allow the trier of fact to draw the strongest inference against him that the opposing evidence in the record permits” (Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141, supra), respondent’s silence in this case can permissibly be used to draw only one inference: that petitioner’s testimony regarding the fact and date of her sexual relations with respondent is accurate. This is evidence that respondent would be in a position to controvert (see, Perl-man v Schanck, 192 App Div 179, 183-184) and respondent’s silence may not be used to draw any inferences beyond that. Respondent’s silence may not be used to directly support the conclusion that he is the father of petitioner’s child.

Nonetheless, a new hearing, rather than dismissal of the petition is in order. A human leukocyte antigen (HLA) test was administered in this case and, assuming that the foundational problems indicated by the Appellate Division are curable, as they appear to be, the test would be admissible (Family Ct Act § 532) and could elevate the evidence to meet the requisite standard of proof (see, Ann., 37 ALR4th 151; Matter of Department of Social Servs. [Sandra C.] v Thomas J. S., 100 AD2d 119, appeal dismissed 63 NY2d 675; Matter of Rosemary W. v Bruce A., 113 Misc 2d 745, 746).

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

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


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    The People of the State of New York, Appellant, v Jesus Morales, Respondent.
    Decided September 5, 1985
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Donald J. Siewert and Robert M. Pitler of counsel), for appellant.

      Benjamin Brafman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with this memorandum.

Criminal Term erred in holding that a person who is frisked is thereafter in custody as a matter of law for the purpose of administration of Miranda warnings (Berkemer v McCarty, 468 US_, 104 S Ct 3138). There is a clear distinction between a stop and frisk inquiry and a forcible seizure which curtails a person’s freedom of action to the degree associated with a formal arrest (see, People v Huffman, 41 NY2d 29). Thus, questioning after a frisk, without more, does not constitute custodial interrogation (Berkemer v McCarty, supra; see, United States v Bautista, 684 F2d 1286, 1291-1292, cert denied 459 US 1211; United States v Pratt, 645 F2d 89, 90-91, cert denied 454 US 881; State v Roadenbaugh, 234 Kan 474, 673 P2d 1166, 1169-1172; People v Greer, 110 Cal App 3d 235, 240, 167 Cal Rptr 762, 765). Although the issue of whether a suspect is in custody is generally a question of fact, Criminal Term’s determination rests upon an erroneous legal standard, thus presenting a question of law within this court’s power of review (see, People v Palumbo, 49 NY2d 928, 929).

The matter should, therefore, be remitted to Criminal Term so that defendant’s motion can be decided in accordance with these principles. The determination should be made on the record of the prior hearing; a new hearing is not required (People v Quarles, 63 NY2d 923, 925; People v Havelka, 45 NY2d 636, 642-644).

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

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


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    The Board of Managers of Yardarm Beach Condominium et al., Appellants, v Vector Yardarm Corporation et al., Respondents.
    Decided September 5, 1985
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Key Bank of Southeastern New York, N. A., Respondent, v Sidney Pal et al., as Trustees of the Tamara Trust, et al., Appellants.
    Submitted June 24, 1985;
    decided September 5, 1985
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [a]), with $20 costs and necessary reproduction disbursements.

Judge Titone taking no part.


text:
    In the Matter of Mark Kressner and Michael B. Schulman, Attorneys, Appellants. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted July 1, 1985;
    decided September 5, 1985
   Motion by Michael Schulman for leave to appeal denied. On the court’s own motion, appeal taken as of right by Mark Kressner dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    Rubin Sterngass, Appellant, v County of Rockland et al., Respondents.
    Submitted June 10, 1985;
    decided September 5, 1985
   Motion for leave to appeal dismissed, with $20 costs, upon the ground that no appeal lies from the judgment of Supreme Court which has already been reviewed on appeal (96 AD2d 925, affd 62 NY2d 812; appeal dismissed 64 NY2d 1165).


text:
    In the Matter of Nathaniel T. and Others, Alleged to be Permanently Neglected. Monroe County Department of Social Services, Appellant; Kenneth T. et al., Respondents.
    Submitted August 12, 1985;
    decided September 5, 1985
   Motion for a stay denied as unnecessary (CPLR 5519 [a] [1]). Motion to dismiss appeal denied.


text:
    In the Matter of Almon L. Wait.
    Decided September 10, 1985
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Almon L. Wait is suspended with pay, effective immediately, from his office of Justice of the Waverly Town Court, Franklin County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    Alvin Philips et al., Appellants, v Republic Insurance Company, Respondent. (And a Third-Party Action.)
    Decided September 10, 1985

      APPEARANCES OF COUNSEL

      Marian Philips for appellants.

      John V. Henry for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (108 AD2d 845). (See also, Dano v Royal Globe Ins. Co., 59 NY2d 827; Hubbell v Trans World Life Ins. Co., 50 NY2d 899.) Insurance Law § 2601 does not require a different result.

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


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    Robert Verity, Appellant, v Sheila Verity, Respondent.
    Decided September 10, 1985

      APPEARANCES OF COUNSEL

      Gerald B. Cohen and Raymond V. Wylegala for appellant.

      Dennis A. Scinta and Richard G. Collins for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division should be affirmed, with costs.

Although the order recites that it is on the law and the facts, the opinion makes clear that its basis was the absence of factual support for the Family Court’s conclusion. We agree that the evidence was insufficient as a matter of law and, therefore, do not consider the weight of the evidence (see, Matter of Nassau Educ. Ch. of Civ. Serv. Employees Assn. v Great Neck Union Free School Dist., 57 NY2d 658, 660).

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

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


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    The People of the State of New York, Respondent, v Robert J. Catone, Appellant.
    Decided September 10, 1985

      APPEARANCES OF COUNSEL

      Paul M. Cusano for appellant.

      Patrick Henry, District Attorney (Mark D. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to provide that defendant’s sentences for manslaughter in the second degree and leaving the scene of an accident without reporting, as a felony, run concurrently and as so modified, affirmed.

At approximately 11:45 p.m. on June 6,1981 defendant struck and killed a teen-age girl as she and several of her friends were crossing Depot Road at a pedestrian crosswalk in Huntington Station, New York. After striking the girl, defendant reduced his speed for a brief moment but then sped off. He was subsequently arrested and charged with manslaughter, second degree, and leaving the scene of an accident, as a felony. Following a jury trial, he was found guilty as charged and sentenced to the maximum terms of imprisonment for both counts, the sentences to run consecutively.

The sole issue on appeal is whether defendant’s consecutive sentences are valid under Penal Law § 70.25 (2). That provision creates two situations where sentences imposed for two or more offenses must run concurrently: (1) where the offenses are committed through a single act or omission, and (2) where an act or omission constitutes both one of the offenses and a material element of the other. Defendant contends that his convictions fall squarely within the second category of section 70.25 (2) and we agree.

We have previously indicated that this language means that one offense must have been a material element of the other (see, People ex rel. Maurer v Jackson, 2 NY2d 259, 264-265). The relevant law and facts of this case demonstrate that the offense of manslaughter in the second degree was a material element of the offense of felony leaving the scene without reporting. Penal Law § 125.15 provides that “[a] person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person.” Vehicle and Traffic Law § 600, which defines leaving the scene of an accident without reporting, makes it a class E felony for “[a]ny person operating a motor vehicle who, knowing or having cause to know that [death or serious physical injury] has been caused to another person, due to the culpability of the person operating such motor vehicle, or due to accident”, to fail to stop and provide information and report the incident to the police as soon as possible (Vehicle and Traffic Law § 600 [2]). Thus, one of the material elements of the offense of felony leaving the scene that defendant was indicted for was that he had caused death to another person through his culpable conduct which is, in effect, the offense of manslaughter in the second degree when the degree of culpability is recklessness as the jury found here (see, People v King, 67 Misc 2d 979).

While it appears anomalous that the crime of leaving the scene of an accident should be essentially unpunished under these circumstances, the result is required by the statute and suggests that the Legislature may wish to reexamine its language.

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

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

       Penal Law § 70.25 (2) provides as follows: “2. When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.”


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    Elwick Limited, Appellant, v Mary R. Howard, Respondent.
    Decided September 10, 1985

      APPEARANCES OF COUNSEL

      Gary M. Rosenberg for appellant.

      Stuart M. Bernstein for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (111 AD2d 73; see also, Golub v Frank, 65 NY2d 900).

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


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    In the Matter of Orchard Michael, Inc., Appellant, v Eileen Falcon et al., Constituting the Zoning Board of Appeals of the Town of Orchard Park, et al., Respondents.
    Decided September 10, 1985

      APPEARANCES OF COUNSEL

      Richard T. Sullivan for appellant.

      J. Michael Wolf for respondents.
   OPINION OF THE COURT

Memorandum.

In this article 78 proceeding to annul a determination denying petitioner’s request for an area variance, the order of the Appellate Division should be affirmed, with costs. We agree that petitioner failed to establish practical difficulty, and that petitioner’s proof of a 10% reduction in sales in one year was an insufficient showing of “significant economic injury.” The conclusion of the Zoning Board of Appeals was therefore not illegal, arbitrary or an abuse of discretion (see, Matter of Cherry Hill Homes v Barbiere, 28 NY2d 381; see also, Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 501; Matter of Cowan v Kern, 41 NY2d 591; Matter of National Merritt v Weist, 41 NY2d 438), and we do not reach the issue of the self-created hardship doctrine.

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

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


text:
    Lynn A. Malanga, Appellant, v Sears, Roebuck & Co., Respondent.
    Decided September 10, 1985

      APPEARANCES OF COUNSEL

      Richard G. Vogt for appellant.

      Bruce E. Hansen for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (109 AD2d 1054).

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


text:
    In the Matter of John Mahoney et al., Appellants, v Robert Kraut, as Director of the City of New York Department of Finance, Bureau of Hearings, Respondent.
    Decided September 10, 1985

      APPEARANCES OF COUNSEL

      Jerry V. Weinberg for appellants.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (111 AD2d 685; see also, Matter of Oak Is. Beach Assn. v Flacke, 96 AD2d 841, lv denied 62 NY2d 606).

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


text:
    Richard P. Buegler, Individually and as President of Protectors of Pine Oak Woods, Inc., Appellant, v James Walsh, as Director of the Staten Island Development Center, et al., Respondents.
    Submitted July 22, 1985;
    decided September 10, 1985
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution, and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    In the Matter of Michael J. Bush, as Commissioner of the Department of Social Services of Herkimer County, on Behalf of Darlene O’Kusko, et al., Respondents, v Jack Pierce, Appellant.
    Submitted September 3, 1985;
    decided September 10, 1985
   On the court’s own motion, appeal taken as of right from an order of Family Court, Herkimer County, entered May 14,1985, transferred to the Appellate Division, Fourth Department, which, in the event that an appeal as of right to that court does not lie, may treat the notice of appeal as an application for permission to appeal to that court (Family Ct Act § 1112; Matter of Jane PP. v Paul QQ., 64 NY2d 15). A direct appeal to this court does not lie where questions other than the constitutionality of a statutory provision are involved (Matter of Merced v Fisher, 38 NY2d 557; see, NY Const, art VI, § 5 [b]).

Motion for a stay dismissed as academic.