author: Fuchsberg, J.

text:
    Martha Vaccaro, an Infant, by Her Father and Natural Guardian, Juan Vaccaro, et al., Respondents, v Squibb Corporation et al., Appellants, et al., Defendant.
    Argued November 11, 1980;
    decided December 22, 1980

      APPEARANCES OF COUNSEL

      Joseph M. Costello, Robert C. Johnston, Howard L. Dorfman and James J. Girvan for Squibb Corporation and another, appellants.

      Norman Bard, Anthony L. Schiavetti and Sandra Krevitsky for Emil E. Maffucci, appellant.

      Alfred S. Julien and William D. Fireman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the motions of defendants-appellants to dismiss the first through the ninth causes of action set forth in the complaint in Action No. 2 should be granted (cf. Howard v Lecher, 42 NY2d 109; see Becker v Schwartz, 46 NY2d 401).

We do not read the complaint as setting forth a cause of action by the mother for independent physical injuries. The theory of recovery on which the dissenter would rely was not addressed by either court below or argued by the parties in our court. Insofar as the mother seeks recovery the case has been heretofore treated as presenting only the legal question whether in the circumstances she is entitled to recover for emotional and psychic harm.

Fuchsberg, J.

(dissenting). This suit involves a mother to whom, during the course of her pregnancy, Delalutih, a drug manufactured and marketed by the defendants Squibb, was administered by the defendant doctor. The baby was born without limbs and with other deformities, all alleged to have been produced, by the drug. This action, sounding essentially in medical malpractice and strict products liability, was brought by the mother and the father to recover for what in both cases may be categorized as emotional injuries and, in the case of the mother, for physical injuries as well.

The matter is now here on appeal from an order of the Appellate Division, which, by a divided court, modified an order of Special Term denying a motion to dismiss pursuant to CPLR 3211 (subd [a], par 7). On such a motion, of course, the court must both assume the truth of the charges made (Cohn v Lionel Corp., 21 NY2d 559, 562) and favor the pleader with every inference that might be drawn (Westhill Exports v Pope, 12 NY2d 491, 496). For practical purposes, the effect of the Appellate Division’s modification was to dismiss the husband’s case and save that of the wife. On the present appeal, our court would dismiss as to the wife too.

Since there is no present disposition on the part of the majority of the court to roll back our repeated refusal to recognize a right to recover for mental and emotional injuries experienced by a “bystander” as a consequence of direct injuries to another, no matter how close (see Howard v Lecher, 42 NY2d 109, 112, citing Tobin v Grossman, 24 NY2d 609), I turn to the mother’s case alone. It would seem impossible to deny that defendants owed a duty directly to her. She was a patient of the doctor. She was the consumer of the implicated drug, it having actually been injected into her body. And she suffered the physical effect it had on the fetus and herself while the baby was still unborn.

Yet, the court, in dismissing, despite cases like Battalla v State of New York (10 NY2d 237), takes the position that her injuries were all subjective in nature and, here, derived from the emotional suffering she had undergone over concern for the deformed condition of her daughter. With this I cannot agree, all the more, since, without debating the point, the cold record reveals her reliance on physical injuries too. Specifically, while her papers do speak of her “acute depression and psychological overlay”, they also describe injuries to her “nervous system” (the “nervous system”, as distinguished from “neurotic” or “psychotic” pathology, by any medical definition, is organic), along with repeated objective manifestations of “dizziness, vomiting and nausea”. These allegations raised questions of fact as to whether she suffered independent personal injuries. The point is not only necessarily encompassed in even the broader relief that the plaintiffs alleged, but was the subject of active colloquy with the court during argument before us.

Accordingly, so much of the order of the Appellate Division as relates to the wife should have been affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur; Judge Meyer concurs on constraint of Howard v Lecher (42 NY2d 109); Judge Fuchsberg dissents and votes to affirm in an opinion.

Order, insofar as appealed from, reversed, with costs, and the motions of defendants-appellants to dismiss the first through the ninth causes of action set forth in the complaint in Action No. 2, granted in a memorandum. Question certified answered in the negative.

       Doing so, I cannot help but reflect on the stultifying effect of what may be too indiscriminating an application of stare decisis. For, as distinguished from cases involving property dispositions and contractual rights, courts will more “readily re-examine established precedent to achieve the ends of justice in a more modern context” in personal injury cases (People v Hobson, 39 NY2d 479, 489, and cases cited thereat). True, Tobin v Grossman was cited with approval only as recently as in Howard, albeit only by a vote of 4 to 3, of whom three Judges who vigorously dissented are still members of this court. “But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision” (Helvering v Hallock, 309 US 106, 119).


source: Caselaw Access Project

author: Chief Judge Cooke Jasen, J.

license: Public Domain

text:
    State Division of Human Rights, on Complaint of Donald Gladwin, Appellant, v McHarris Gift Center, Respondent.
    Argued November 19, 1980;
    decided December 22, 1980

      APPEARANCES OF COUNSEL

      L. F. Walentynowicz for appellant.

      Andrew S. Kowalczyk, Jr., for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 813).

Concur: Judges Gabrielli, Jones, Wachtler and Fuchsberg. Chief Judge Cooke dissents and votes to reverse in an opinion in which Judges Jasen and Meyer concur. Judge Jasen dissents in a separate dissenting opinion in which Judge Meyer also concurs.

Chief Judge Cooke

(dissenting). Presented here is only one question — whether the State Division of Human Rights has jurisdiction under subdivision 2 of section 296 of the Executive Law to act on a complaint charging discrimination through the display and sale of ethnic “joke” novelty items. Because the majority holds that it does not, I must dissent.

As relevant here, subdivision 2 of section 296 makes it an unlawful discriminatory practice for the proprietor “of any place of public accommodation * * * directly or indirectly * * * to * * * display * * * any written or printed communication * * * to the effect that any of the accommodation, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of * * * national origin * * * or that the patronage or custom thereat of any person of [a particular national origin] is unwelcome, objectionable or not acceptable, desired or solicited.”

Complainant, an individual of Polish heritage, filed a complaint with the State Division of Human Rights charging the McHarris Gift Center with the unlawful discriminatory practice of denying him equal advantages, facilities, privileges and accommodations of a place of public accommodation because of his national origin. The basis of the complaint was the sale and display by McHarris Gift Center of three novelty items that, were demeaning to persons of Polish extraction. The three items were a pencil with an electric cord marked “Polish Calculator”, a cylinder marked “Polish bowling ball”, and a mug with the handle inside marked “Polish mug.” Although the State division dismissed the complaint for lack of jurisdiction, the Human Rights .Appeal Board disagreed, finding both jurisdiction and probable cause to proceed further pursuant to the Human Rights Law. McHarris Gift Center then commenced a proceeding in the Appellate Division pursuant to section 298 of the Executive Law to annul the board’s order. The Appellate Division granted the petition, reversed the board’s order and dismissed the complaint. The court concluded that the items were “offensive and in poor taste”, but that they were not communications prohibited by subdivision 2 of section 296. This appeal followed and the majority now affirms.

I am unable to join in this affirmance. The Human Rights Law was designed “to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life” and “to eliminate and prevent discrimination” in, among other things, places of public accommodation (Executive Law, §290, subd 3). Liberal construction of the statutory provisions is necessary to effectuate its purposes (see New York Inst. of Technology v State Div. of Human Rights, 40 NY2d 316, 324-325).

Subdivision 2 of section 296 quite definitely proscribes the display of a printed or written communication which suggests that the patronage of a person of a particular national origin at a place of public accommodation is “unwelcome, objectionable, not acceptable, desired or solicited.” It forbids the denial or withholding of equal access to and treatment in such places. The statute unquestionably prohibits a proprietor from excluding a particular group by means of a sign prominently displayed directly stating the exclusion. It also reaches the less obvious discriminatory conduct that takes the form of exclusion by inference (see Matter of Trowbridge v Katzen, 14 AD2d 608).

There can be no doubt that the items displayed here were a printed or written communication. On one level the items communicate simply the point of the so-called “joke” — the crude, unfair and totally incorrect picture of persons of Polish heritage. While possibly some may find humor in this or consider it harmless bad taste, to others the communication from these items when displayed may be far different and far more destructive: that the patronage of persons depicted and ridiculed by the so-called “joke” is unwelcome, objectionable or unacceptable. It is the latter that the majority refuses to acknowledge.

This court is not called upon at this time to say that the display here necessarily evinces the prohibited conduct and constitutes an unlawful discriminatory practice. Indeed, the court is not asked to decide whether the complaint should be sustained on the merits. The only issue is whether the State division has jurisdiction over this complaint. At the very least, the possibility of a veiled discriminatory tactic can be discerned here. Not only does the majority ignore this, but in denying jurisdiction here, it effectively prohibits complaints of discrimination that take the form of exclusion by indirection.

By today’s action, the majority sweeps aside and needlessly restricts the protections against discrimination intended by subdivision 2 of section 296. Given the language of the statute, its remedial purposes and the acts at issue, I am unable to join in the majority’s decision.

Jasen, J.

(dissenting). I join in Chief Judge Cooke’s dissent, but, in doing so, I would add that the fundamental right of all ethnic and racial groups to be free of the adverse effects of intentional ethnic or racial discrimination and ridicule was intended by the Legislature to be protected in enacting subdivision 2 of section 296 of the Human Rights Law. Any individual of Polish heritage actually or likely to be present in the gift store could reasonably have regarded the words printed on the particular items displayed as a direct personal insult and designed to single out persons of Polish heritage for ridicule and discrimination.

The statutory grounds of objection to this kind of public display of discrimination and defamation are identical with the objections in the past to common signs saying, “No Irish Need Apply”, “Whites Only”, and “Gentiles Only”.

It follows that unless one is willing to reject the proposition that certain racial and ethnic groups in this country have in fact suffered injuries in the past as a result of racial and ethnic defamation and ridicule that have been perpetuated in the public mind, one cannot reject the proposition that the State Legislature intended, in enacting subdivision 2 of section 296 of the Human Rights Law, to correct this injustice and ameliorate social tensions resulting from such discriminatory and defamatory actions. It is a statute specifically directed at a defined evil — discriminatory practice against a person because of his “race, creed, color, national origin or sex”. Such discriminatory acts directed at a specific ethnic group not only stigmatize them as a group, but also as individual members of such group being publicly exposed to such discrimination and ridicule. It is for this reason, I believe, that the Legislature, having knowledge of racial and ethnic discrimination in our State, decided to hold accountable those who intentionally publicly display objects with printed words which are discriminatory and defamatory against an identifiable racial or ethnic group. Although only those of Polish heritage are the most direct victims of the discrimination and ridicule displayed here, the general public also suffers harm when such discriminatory material is disseminated. Such actions, in my opinion, contribute to the creation and maintenance of prejudicial beliefs and discriminatory behavior throughout our society which in turn lead to structured social inequalities between people of different ethnic and racial groups.

Since the Legislature has commendably expressed a desire to protect persons of all ethnic groups and religious persuasions from the effects of the type of discrimination involved here, I would reverse the order of the Appellate Division and hold that the State Human Rights Appeal Board correctly found both jurisdiction and probable cause to proceed further pursuant to the Human Rights Law.

Order affirmed, etc.


author: Gabrielli, J.

text:
    In the Matter of Allstate Insurance Company, Respondent, v Holly D. Shaw et al., Respondents, and Hertz Corporation, Appellant.
    Argued November 11, 1980;
    decided December 22, 1980

      APPEARANCES OF COUNSEL

      Ignatius J. Melito, Stanley Roth and Steven Di Joseph for appellant.

      Charles Palella and Elinore B. Klein for Allstate Insurance Company, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. In so deciding, essentially for reasons stated in the opinion of Mr. Justice McCooe at Trial Term (106 Mise 2d 32), we add the following:

The Legislature has specifically declared its grave concern that motorists who use the public highways be financially responsible to ensure that innocent victims of motor vehicle accidents be recompensed for their injuries and losses (Vehicle and Traffic Law, § 310). To this end, subdivision 2-a of section 167 of the Insurance Law requires that all motor vehicle liability insurance policies provide uninsured motorist coverage. Thus, where an accident is caused by an unidentified vehicle or where the insurer has disclaimed coverage, a victim will still be able to recover for losses sustained. Because of the strong policy concerns which brought them into existence, the interpretation of statutes relating to uninsured motorist coverage must not be caught up in narrow and technical analysis. Instead, the provisions must be interpreted as a whole, giving the words a meaning which serves rather than defeats the over-all legislative goals (see Motor Vehicle Acc. & Ind. Corp. v Eisenberg, 18 NY2d 1, 3; Matter of Taub [MVAIC], 31 AD2d 378, 381).

This said, we turn to the statute. When the Legislature authorized the filing of a certificate of self-insurance by car rental companies to demonstrate their financial ability to respond to liability claims (Vehicle and Traffic Law, § 370, subd 3), it in no way intended to decrease the insurance protection presently available. The legislative history of subdivision 3 of section 370 of the Vehicle and Traffic Law makes this clear. The bill jacket contains a memorandum from the Department of Motor Vehicles stating that the provisions “would not, by permitting self-insurance rather than requiring insurance, result in any diminution of the protection now afforded to users of [rental] vehicles or to other persons”. If, despite this official articulation of the problem, self-insurers are exempted from providing uninsured motorist coverage, their privilege of saving insurance premiums would work the precise diminution of protection of highway users which the Legislature refused to countenance.

Moreover, that self-insurers must pay an annual per vehicle assessment to the Motor Vehicle Accident Indemnification Corporation (MVAIC) (Vehicle and Traffic Law, § 370, subd 3) is not, as is suggested by Hertz, a payment in lieu of providing uninsured motorist coverage. The fee of $1.50 per vehicle was established in order to obtain a self-insurer’s contribution for its equitable share of the costs of administering MVAIC (see L 1963, ch 865 [establishing the requirement of payment to MVAIC by self-insurers] ). Hence, such payments are not substitutes for the provision of the coverage at issue.

In contrast to our analysis, which looks at the statutory scheme as a whole, the dissent relies on what may have been our overprecious and perhaps overliteral reading of a law intended to govern the practical and remedial business of fairly distributing the cost of compensating innocently injured victims of our motor-driven society. It puts us in mind of Learned Hand’s warning against making “a fortress out of the dictionary” since “statutes always have some purpose or object * * * whose sympathetic and imaginative discovery is the surest guide to their meaning” (Cabell v Markham, 148 F2d 737, 739; see, also, Matter of Country-Wide Ins. Co. v Wagoner, 45 NY2d 581, 588). We believe a capsulization of the statutory scheme proves this point.

So, subdivision 1 of section 370 of the Vehicle and Traffic Law provides that corporations engaged in the business of carrying passengers for hire in motor vehicles (e.g., buses and taxis) must demonstrate their financial responsibility by filing either a corporate surety bond or a policy of insurance with the Commissioner of Motor Vehicles. Subdivision 1 also establishes minimum limits on liability and requires that vehicles for hire provide uninsured motorist coverage. The first paragraph of subdivision 3 of section 370 of the Vehicle and Traffic Law states that motor vehicle rental corporations “shall be subject to the provisions of this section in the same manner and to the same extent” (emphasis added) as corporations engaged in transporting passengers for hire, i.e., corporations subject to subdivision 1 of section 370 of the Vehicle and Traffic Law. The second paragraph of subdivision 3 of section 370 of the Vehicle and Traffic Law merely gives leasing companies an additional option to demonstrate their financial security: they may file a certificate of self-insurance in lieu of a bond or an insurance policy.

Finally, if, as the dissent argues, this option is interpreted to mean that a self-insured leasing company is relieved of all of the requirements of subdivision 1 of section 370 of the Vehicle and Traffic Law, then the leasing company would also not have to provide the minimum insurance coverage also mandated by subdivision 1 of section 370 of the Vehicle and Traffic Law. Were the issue of minimum coverage before us, we cannot believe that such a strained and narrow interpretation of the statute would be upheld, especially in light of the statute’s directive that leasing companies and companies transporting passengers for hire be treated in the same manner.

Gabrielli, J.

(dissenting). I am compelled to cast a dissenting vote in this case, because, in my view, the result reached by the majority represents a misreading of the language and purposes of the relevant provisions of the Vehicle and Traffic Law.

The central issue in this appeal is whether an automobile leasing concern that is self-insured under subdivision 3 of section 370 of the Vehicle and Traffic Law is obliged to provide uninsured motorists coverage in accordance with the terms of subdivision 2-a of section 167 of the Insurance Law. The courts below answered the question in the affirmative and, following our grant of leave, the majority has apparently adopted the same view. I disagree.

The relevant provisions of the Vehicle and Traffic Law are as follows:

“A person, firm, or association or corporation engaged in the business of renting or leasing motor vehicles * * * shall be subject to the provisions of this section in the same manner and to the same extent as if such person, firm, association or corporation were actually engaged in the business of carrying or transporting passengers for hire.

“Notwithstanding the provisions of subdivision one of this section, a person * * * engaged in the business of renting or leasing motor vehicles, having registered in this state more than twenty-five motor vehicles * * * may file a certificate of insurance. The commissioner of motor vehicles in his discretion may * * * issue a certificate of self-insurance when he is reasonably satisfied that such person is possessed * * * of financial ability to respond to judgments” (Vehicle and Traffic Law, § 370, subd 3 [emphasis supplied]).

In other words, an automobile leasing concern having more than 25 registered vehicles must conform to the rules established for common carriers in section 370, but is excused from complying with subdivision 1 of that section if it elects to become a self-insurer and receives the necessary approvals from the Commissioner of Motor Vehicles.

The provisions of section 370 governing common carriers require that such carriers fulfill their “financial security” obligations by maintaining either a bond or a policy of insurance. The special statutory duty to furnish uninsured motorists coverage is derived from subdivision 1 of section 370, which provides, in pertinent part: “Notwithstanding any contrary provision of this chapter, any such bond or policy of insurance shall also provide for uninsured motorists coverage in the minimal amount and in the form provided for in subdivision 2-a of section one hundred sixty-seven of the Insurance Law” (Vehicle and Traffic Law, § 370, subd 1, par [b] [emphasis supplied]). Inasmuch as the clear language of the statute renders automobile leasing firms exempt from the requirements of subdivision 1 if they opt to become self-insurers and inasmuch as the requirement to provide uninsured motorists coverage is derived in this case solely from subdivision 1, it would seem inescapable that self-insured leasing concerns such as appellant are not obliged to provide such coverage.

Yet, the majority has held that the uninsured motorists coverage requirement should be applied to self-insurers. Concedely, its conclusion is based in part upon the reasoning of the courts below, which relied heavily upon the recent legislative history of subdivision 1 of section 370. As Mr. Justice McCooe at the Supreme Court noted, subdivision 1 was amended in 1971 to correct a defect in the statute which permitted carriers which chose to provide financial security in the form of an indemnity bond rather than an insurance policy to avoid the obligation to furnish uninsured motorists coverage (L 1971, ch 794; see Matter of Mackey [Allcity Ins. Co.], 27 AD2d 728; NY Legis Ann, 1971, p 366). According to the court, this amendment “manifest [ed] both a judicial and a legislature intent to provide maximum coverage to an injured party”. The court further noted that the first paragraph of subdivision 3 of section 370, which governs automobile leasing firms, requires such firm to provide coverage “in the same manner and to the same extent” as firms owning vehicles for hire are required to provide. Thus, the court reasoned, “a self insurer is subject to the same requirements as a vehicle for hire” and, since the self-insurer is therefore required to provide uninsured motorists coverage, such coverage “ ‘is deemed included in’ the certificate of self insurance” (see Insurance Law, § 167, subd 2-a).

The fallacy in this syllogism is fairly obvious. While it is true as Justice McCooe noted that leasing concerns such as appellant are generally made subject to the rules governing owners of vehicles for hire under the first paragraph of subdivision 3 of section 370, the second paragraph of that subdivision, which establishes the option of becoming a self-insurer in the first instance, clearly exempts those who elect that option from the subdivision 1 requirements applicable to owners of vehicles for hire. Hence, it is simply incorrect to conclude, as the lower courts did, that self-insurers are subject to the same requirements as are owners of vehicles for hire.

Moreover, the language of section 370 of the Vehicle and Traffic Law itself strongly suggests that the uninsured motorists coverage requirement was not intended to be applicable to self-insurers. Although such coverage must be included in any indemnity bond or policy of insurance under the terms of subdivision 1, there is no indication in the language of the statute that a similar requirement exists with respect to certificates of self-insurance. Contrary to the assertions of respondents in the instant appeal, there is no basis for assuming that the failure to include a requirement of uninsured motorists coverage in the provisions governing self-insured leasers was a mere “legislative oversight” which should be corrected under the guise of our judicial authority to construe statutes. As we noted in Guercio v Hertz Corp. (40 NY2d 680, 684), self-insurance is a form of financial security which is conceptually distinct from our conventional notions of insurance. “Generally, self-insurance is no insurance at all. Rather, self-insurance, in this context, is a convenient shorthand for describing the manner in which a class of vehicle owners may comply with the requirements of the Motor Vehicle Financial Security Act. * * * The crux of the matter is that a financially able fleet owner may avoid the necessity of obtaining liability insurance and paying insurance premiums. By undertaking to assure payment of judgments, the owner does not become an ‘insured of anything other than his own ability to pay for damages for which he is legally responsible. * * * In sum, self-insurance is not insurance but an assurance — an assurance that judgments will be paid” (emphasis supplied).

Our decision in Guercio recognized that, in permitting automobile leasing firms to become self-insurers, the Legislature made a deliberate choice to exempt such firms from the usual responsibilities of motor vehicle owners in exchange for a commitment by these firms to assure payment from their own assets “for damages for which [they are] legally responsible”. Indeed, we held in Guercio that, absent a specific agreement to the contrary, a self-insured lessor would not be liable to a third party who has been injured by the negligence of one driving a leased vehicle with the lessee’s consent, although we noted that an ordinary insurer would be liable in similar circumstances by virtue of subdivision 2 of section 167 of the Insurance Law, which requires all policies of liability insurance to include such coverage. Thus, the clear implication of our holding in Guercio is that the obligations of a self-insurer under a certificate of self-insurance simply cannot be equated with the obligations of a regulated insurance company.

I find our decision in Guercio to be all but dispositive of the issue in the instant case. The omission from section 370 of the Vehicle and Traffic Law of a requirement that the self-insurer provide uninsured motorists coverage was not a mere accident resulting from legislative haste. Instead, the omission was the product of a policy choice made by the Legislature to exempt certain large automobile leasing concerns from the obligations imposed upon other vehicle owners.

A certificate of self-insurance is, in actuality, only evidence of the self-insurer’s ability to cover from its corporate assets judgments arising from its own liability. It makes no more sense to say that such a certificate of self-insurance obligates the self-insurer to provide statutory uninsured motorists coverage than it did in Guercio to say that a certificate of self-insurance gave rise to a duty on the part of the self-insurer to recompense a third party for injuries for which it was not otherwise legally liable.

Accordingly, I would reverse the order of the Appellate Division and hold that appellant has no duty to provide uninsured motorists coverage by virtue of its certificate of self-insurance.

Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli dissents and votes to reverse in an opinion in which Chief Judge Cooke concurs.

Order affirmed, with costs, in a memorandum.

      . The second paragraph of subdivision 3 of section 370 of the Vehicle and Traffic Law, which authorizes certain automobile leasing concerns to become self-insurers was enacted in 1962 (L 1962, ch 888). At that time, the statute did not include a requirement that any insurance policy or indemnification bond provide for uninsured motorists coverage. Indeed, it was not until 1971 that the Legislature amended subdivision 1 of section 370 by introducing the requirement that such coverage be provided (L 1971, ch 794). Thus, contrary to the majority’s assertions, the fact that the 1962 amendment permitting self-insurance was not intended to “ ‘result in any diminution of the protection [then] afforded to users of [rental] vehicles or to other persons’ ” (p 820, quoting Department of Motor Vehicles memorandum [emphasis supplied]) does not compel the conclusion that the self-insurance option provided in subdivision 3 of section 370 necessarily was intended to incorporate the requirement of uninsured motorists coverage, which came into existence some nine years later.

      . Although the majority professes shock at the notion that a filed certificate of self-insurance does not impose upon the self-insurer the obligation to furnish “minimum coverage” (at pp 821-822), such a conclusion would seem logically to follow from our holding in Guercio v Hertz Corp (40 NY2d 680, 684) that self-insurance is nothing more than “an assurance that judgments will will be paid”.


text:
    The People of the State of New York ex rel. Linda Cosminski et al., on Behalf of Linda Keegan/Cosminski, Appellants, v Commissioner of Social Services of the City of New York et al., Respondents.
    Submitted December 15, 1980;
    decided December 22, 1980
   Motion, treated as one for leave to appeal and for other relief, dismissed and cross motion to dismiss the appeal taken as of right granted and the appeal dismissed, without costs, each upon the ground that no appeal lies (CPLR 5601, 5602).


text:
    Katherine S. J. Law, Appellant-Respondent, v Louis L. Friedman et al., Respondents, and San Remo Tenants’ Corp., Respondent-Appellant.
    Submitted November 17, 1980;
    decided December 22, 1980
   A. Motion by plaintiff for leave to appeal denied.

B. Motion for leave to appeal dismissed upon the ground that defendant San Remo failed to appeal to the Appellate Division from the adverse judgment of Supreme Court (Cohen and Karger, Powers of the New York Court of Appeals, § 94).


text:
    In the Matter of the Estate of Virginia S. Nelson, Deceased.
    Decided December 22, 1980
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies to the Court of Appeals from the nonfinal order of Surrogate’s Court, Westchester County (NY Const, art VI, § 3, subd b, par [2]; CPLR 5601, subd [b], par 2).


text:
    In the Matter of the Arbitration between State Mutual Automobile Insurance Company, Appellant, and Wilfredo Mercado et al., Respondents.
    Submitted December 15, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      John V. Henry and Joseph C. Petillo for appellant.

      Frederick Feder for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, by providing that the arbitration proceed under the terms of the arbitration clause in the insurance policy, and, as so modified, affirmed.

Generally, arbitration is to proceed according to the provisions in the contract (see Matter of Siegel [Lewis], 40 NY2d 687; Matter of Astoria Med. Group [Health Ins. Plan of Greater N. Y.], 11 NY2d 128; Matter of Lipschutz [Gutwirth], 304 NY 58). Under the contract here, one arbitrator is chosen by each party and these two then choose a third. The contract provides further only that arbitration is subject to “[l]ocal rules of law as to procedure and evidence.” However convenient the procedures of the American Arbitration Association may be, New York law does not mandate and the out-of-State policy does not authorize the court to direct proceedings before that body.

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

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


text:
    In the Matter of the Claim of William K. Briem, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Argued December 15, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      David E. Ralph for appellant.

      Robert Abrams, Attorney-General (Paul S. Shemin, Iris A. Steel and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 752).

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


text:
    Hazel Robart, Appellant, v Post-Standard, Respondent.
    Argued December 15, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      J. Byron O’Connell and Lois M. Webb for appellant.

      S. Paul Battaglia 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 plaintiff engaged in conduct which was within the sphere of legitimate public concern. Therefore, even though defendant’s report of plaintiff’s encounter with the authorities was not entirely accurate, no recovery can be had in defamation absent a showing that defendant “acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199.) In our opinion, plaintiff has failed to demonstrate the existence of a question of fact on this issue.

In light of our conclusion that plaintiff is, as a matter of law, unable to recover, it is unnecessary for us to determine whether she was required to plead and prove special damages and whether the “libel” asserted was a libel per se.

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

Order affirmed, with costs, in a memorandum.


text:
    Yvonne Heyward, as Executrix of James Heyward, Deceased, Appellant, v New York City Transit Authority, Respondent.
    Argued December 16, 1980;
    Decided January 8, 1981

      APPEARANCES-OF COUNSEL

      H. Stuart Klopper for appellant.

      John A. Murray and Helen R. Cassidy for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (76 AD2d 880).

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


text:
    The People of the State of New York, Respondent, v Maximo Cedeno, Appellant.
    Argued December 15, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      Robert S. Dean and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Daniel Castle-man and J err old Neugarten of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s only contention in our court is that the lapse of 13 months between his arrest and his arraignment on the indictment was an unreasonable delay in prosecution which constituted a denial of his constitutional right to due process in consequence of which his conviction should be reversed and the indictment dismissed (People v Singer, 44 NY2d 241; People v Staley, 41 NY2d 789). While defendant did make a motion to dismiss the indictment under CPL 30.30, he made no motion to dismiss based on the contention he now advances. In that circumstance he has failed to preserve that contention for our review (People v Lieberman, 47 NY2d 931).

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

Order affirmed in a memorandum.


text:
    Joseph Lurie, Individually and as Administrator of the Estate of Miriam Lurie, Deceased, Appellant, v State of New York et al., Respondents.
    (Claim No. 59811.)
    Argued December 16, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      Richter & Werbalowsky for appellant.

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

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 1006).

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


text:
    Richard Davis, Respondent, v Estate of Rose Davis, Appellant.
    Argued December 16, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      William A. Zutt and Samuel G. Fredman for appellant.

      Leslie I. Levine for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 861).

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


text:
    Smith-Coulter Co., Inc., Respondent, v Sentry Insurance, Appellant.
    Argued December 15, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      Alan J. Goldberg for appellant.

      Susan Freeman Schapiro for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and summary judgment entered for the defendant, with costs, dismissing the complaint.

Plaintiff purchased a tractor on December 29, 1976 and entered into an installment sale agreement which contained two features relevant to this appeal. First, the agreement provided that White Motor Credit Corp., to whom it was assigned, would waive all finance charges if the balance due was paid before April 1, 1977. Second, it provided that White Motor Credit Corp. would obtain insurance on the tractor during the credit life of the contract, insuring the respective interests in it.

White Motor Credit Corp. obtained such insurance and thereafter plaintiff chose to take advantage of the interest waiver option. Plaintiff’s check was deposited to White Motor Credit Corp.’s account on March 28, 1977 and its records reflected payment on that date. However, it was not until April 25, 1977 that White Motor Credit Corp. mailed to plaintiff a termination statement and canceled security agreement. In the interim the tractor was destroyed by fire on April 8, 1977. Plaintiff then commenced this action against Sentry Insurance to recover for the loss under the insurance policy obtained by White Motor pursuant to the contract.

Plaintiff’s contention, which has been accepted by the courts below, is that White Motor Credit . Corp. agreed to insure plaintiff’s interest in the tractor until the debt represented by the installment agreement was discharged and that the debt was not discharged until White Motor Credit Corp. mailed to plaintiff the termination statement and the canceled security agreement. Plaintiff relies upon the sample of insurance coverage contained in White’s payment booklet which includes a provision that the term of the insurance runs “until the indebtedness is discharged” (emphasis supplied). However, this action is on the policy of insurance and against Sentry Insurance Company, not against White.

The terms of the insurance policy issued by Sentry to White and under which, as a purchaser, plaintiff was also a “named insured” govern plaintiff’s rights. That policy provides that the insurance “cover [s] continuously * * * until the interest of the Insured is satisfied” (emphasis supplied).

As a purchaser plaintiff had no interest in the tractor that could be “satisfied”. Only White as a creditor had such an interest. The only meaningful interpretation of the policy language is that the insurance coverage lapsed when White received full payment on March 28, 1977, for on that day its interest in the tractor was satisfied. Whether the debt was discharged on that date within the meaning of the language of the payment booklet, we need not decide.

Nothing in the language of the policy or in any action of Sentry Insurance related its obligation as insurer to the discharge of the obligation, much less to its discharge of record. Nor is there any basis for holding, as plaintiff urges, that Sentry was bound by White Motor’s statement with respect to insurance coverage.

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

Order reversed, etc.


text:
    John Masone, an Infant, by His Father and Natural Guardian, Thomas Masone, et al., Appellants, v Unishops of Modell’s Inc. et al., Respondents.
    Argued December 16, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      Joseph A. Baum for appellants.

      William F. McNulty, Harold M. Foster and Anthony J. McNulty for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 611).

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


text:
    George Lane et al., Appellants, v Frederick Flack, Respondent.
    Argued December 15, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      Robert E. Carpenter for appellant.

      H. Neal Conolly for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (73 AD2d 65).

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


text:
    In the Matter of the Claim of Alphonse Ragazzino, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Argued December 15, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      James O. Hivnor and Martin A. Schwartz for appellant.

      Robert Abrams, Attorney-General (Paul S. Shemin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Both claimant and the Attorney-General suggest that the board found that claimant was discharged because he failed to answer the employer’s question as to whether he could get a doctor’s note to verify his illness. The decision mentions that fact but its finding is “We reject claimant’s contention that he was too ill to work that day. Claimant could not be reached by telephone until noon and was able to come to his employer’s premises to pick up his tools later that day.”

Though claimant presented a doctor’s note dated on the day of his absence, stating that “he was unfit to report to work”, it was not presented until the hearing before the Unemployment Compensation Board. Moreover, the employer testified that he tried a number of times during the morning to reach claimant by telephone, allowing the telephone to ring numerous times, but was unsuccessful until noon. The board was not bound by claimant’s explanation (that he was sleeping in a room across the hall from where the phone was located) or by the doctor’s certificate.

The board’s decision was based upon substantial evidence. Notwithstanding the Attorney-General’s contrary concession, we, therefore, affirm.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of the Claim of Sam Surdi, Appellant, v Premium Coal and Oil Co., Inc., et al., Respondents. Workers’ Compensation Board, Respondents.
    Argued December 16, 1980;
    decided January 8, 1981

      APPEARANCES OF COUNSEL

      Burton J. Jacowitz for appellant.

      Joseph F. Manes for Premium Coal and Oil Co., Inc., and another, respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the penalty fixed by the referee reinstated for reasons stated in the dissenting memorandum by Presiding Justice A. Franklin Mahoney at the Appellate Division (71 AD2d, at p 965), to which we add only that as in Kurcsics v Merchants Mut. Ins. Co. (49 NY2d 451, 459) so here the issue is one of legislative intent rather than administrative expertise.

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


text:
    In the Matter of Laurence Gailband, Respondent, v Joseph J. Christian, as Chairman of the New York City Housing Authority, Appellant.
    Submitted December 15, 1980;
    decided January 8, 1981
   (A) Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (cf. Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).

(B) Cross motion to dismiss appeal taken as of right granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that the stipulation for judgment absolute, under the facts of this case, is illusory and frustrates the very purpose of CPLR 5601 (subd [c]) (Goldberg v Elkom Co., 36 NY2d 914).


text:
    Ann McGale, Individually and as Administratrix of the Estate of Raymond McGale, Deceased, Respondent, v Metropolitan Transportation Authority et al., Appellants, and New York City Transit Authority et al., Respondents. Metropolitan Transportation Authority et al., Third-Party Plaintiffs-Appellants, v Allied Maintenance Corporation et al., Third-Party Defendants-Respondents.
    Submitted November 24, 1980;
    decided January 8, 1981
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Judge Fu.chsberg taking no. part.


text:
    National Bank of North America, Respondent, v Rosalee Paskow, Appellant.
    Submitted December 8, 1980;
    decided January 8, 1981
   Motion to dismiss appeal denied.


text:
    Joan Topel, Individually and as Administratrix of the Estate of Harold B. Topel, Deceased, Appellant, v Long Island Jewish Medical Center et al., Respondents.
    Submitted December 1, 1980;
    decided January 8, 1981
   Motion for leave to appeal granted.

Judge Wachtler taking no part.


text:
    Jack Cohen, Appellant, v First National City Bank, Also Known as Citibank, N.A., Respondent.
    Decided January 15, 1981

      APPEARANCES OF COUNSEL

      Ira J. Raab and Erik Goldstein for appellant.

      Susan Belgard for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in dismissing the complaint pursuant to CPLR 3012 (subd [b]). Indeed, as we held in Barasch v Micucci (49 NY2d 594, 600-601), it would have constituted an abuse of discretion to have failed to dismiss.

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


text:
    The People of the State of New York, Respondent, v Jose Santiago, Appellant.
    Argued December 16, 1980;
    decided January 15, 1981

      APPEARANCES OF COUNSEL

      Martin Nardi Gamliel for appellant.

      Mario Meróla, District Attorney (Philip M. Gaynor and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the record before us, we cannot conclude that the trial court’s failure to grant defendant’s motions for a mistrial was error. Any prejudice to the defendant which might have arisen due to the brief mention of uncharged criminal activity which was made at defendant’s trial was alleviated when the court sustained defendant’s objections and took prompt curative action. Hence, defendant’s motions for a mistrial were properly denied. Moreover, if defendant was of the view that the curative instructions which were given were insufficient, he should have immediately made an application seeking further or more complete instructions. In the absence of such an application, he may not assert the inadequacy of such instructions as error on appeal.

We note also that we find no illegality in the police conduct preceding defendant’s arrest. The initial encounter between defendant and police was lawful because the information supplied by the anonymous informant and the police officer’s observation on the scene furnished the basis for reasonable suspicion. (People v Benjamin, 51 NY2d 267.) Moreover, the minimal intrusion which occurred was reasonably related in scope to the circumstances which rendered its initiation permissible. (See, e.g., People v De Bour, 40 NY2d 210, 222; People v Cantor, 36 NY2d 106, 111.)

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

Order affirmed in a memorandum.


text:
    Merchandise Presentation, Inc., et al., Appellants, v Jack Blumenfeld, Respondent.
    Decided January 15, 1981
    APPEARANCES OF COUNSEL

      Norman E. Frowley for appellants.

      James A. Magee for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in dismissing the complaint pursuant to CPLR 3012 (subd [b]). Indeed, as we held in Barasch v Micucci (49 NY2d 594, 600-601), it would have constituted an abuse of discretion to have failed to dismiss.

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


text:
    Jamaica Buses, Inc., Appellant, v Frank Connor et al., Respondents, et al., Defendants.
    Decided January 15, 1981
    APPEARANCES OF COUNSEL

      Douglas A. Cooper and Jerome Cooper for appellant.

      Peter J. McHugh for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in dismissing the complaint pursuant to CPLR 3012 (subd [b]). Indeed, as we held in Barasch v Micucci (49 NY2d 594, 600-601), it would have constituted an abuse of discretion to have failed to dismiss.

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


author: Meyer, J.

text:
    In the Matter of Miles A. Galin, Appellant, v Board of Estimate of the City of New York et al., Respondents.
    Argued November 14, 1980;
    decided January 15, 1981

      APPEARANCES OF COUNSEL

      Leonard F. Rothkrug for appellant.

      Allen G. Schwartz, Corporation Counsel (Ronald E. Sternberg and L. Kevin Sheridan of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Arnold L. Fein at the Appellate Division (72 AD2d 114).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli and Jones. Judge Meyer dissents and votes to reverse in an opinion in which Judges Wachtler and Fuchs-berg concur.

Meyer, J.

(dissenting). Because the decisions of both the Board of Estimate and of the Appellate Division are based upon a factual assumption for which there is no support in the record and because the Appellate Division decision applied an improper standard with respect to the Board of Estimate’s power of review of the determination of the Board of Standards and Appeals (BSA) granting the variance requested, I respectfully dissent.

That the Board of Estimate misapprehended the nature of the application made to the BSA is apparent from its finding that “the proposed extension would occupy the entire rear yard, contrary to the open rear yards which are characteristic in the residential district.” That the Appellate Division likewise misread the record is evident from its characterization of that finding of the Board of Estimate, which it quoted, as “undisputed” (72 AD2d 114, 117). The fact is, as the BSA found, as the testimony of petitioner’s architect established and as the section plan of the first floor and basement, and the floor plans of the existing basement and of the first floor as existing and as proposed, graphically demonstrate, that the existing basement now extends into and covers the rear yard, that 100% coverage of the rear yard is permitted by section 24-33 of the Zoning Resolution and that the only reason that the building department denied the permit and required petitioner to apply for a variance is that section 24-33 limits such a rear yard extension to not more than 23 feet above curb level but not more than one story in height. Because the proposed extension of the first floor into the rear yard, though permissible as to area covered and only 17 feet in total height, would together with the existing basement extension be one and one-half stories above ground, the building department concluded that it could not issue a permit unless the BSA granted a variance.

The use (medical offices) is permitted in the district, neither yard coverage nor height restrictions are violated by the proposed first floor extension, and petitioner has the absolute right to a two-story extension into the rear yard if he takes the economically ridiculous step of tearing down the present basement extension (half of which is below ground) and replacing it with an extension composed of one cellar floor (completely below ground) and one above ground floor (which, however, would be an architectural and perhaps a safety aberration, since the floors of the main building and the extension would not be on the same level). Thus, the only feature of the proposed extension to which the owners of neighboring properties could object, or on which the BSA should as a practical matter have to pass, is the effect of there being one and a half rather than just one story above ground. There being nothing in the record to suggest that the difference has any pragmatic consequence, allowance of the requested variance should have been a foregone conclusion and, indeed, the BSA granted it unanimously.

Affirming the Board of Estimate’s contrary determination, the Appellate Division has characterized petitioner’s real objection as “that the Board of Estimate does not have the expertise to review a determination of the Board of Standards and Appeals” and refuted that objection by noting that “review by the Board of Estimate is mandated by statute” and has held that the determination of the BSA was correctly set aside because “There has been a complete failure to demonstrate a practical difficulty in the use and development of petitioner’s property requiring an area variance” (emphasis supplied, at p 118). In doing so it has clearly demonstrated its misunderstanding of the functions of both the BSA and the Board of Estimate.

Under section 666 of the New York City Charter the Board of Standards and Appeals is given jurisdiction “To determine and vary the application of the building zone resolution as may be provided in such resolution and pursuant to section six hundred sixty-eight” (subd 6) and “In passing upon appeals, to vary or modify any rule or regulation or the provisions of any law relating to the construction, use, structural changes, equipment, alteration or removal of buildings or structures, or vaults in sidewalks appurtenant thereto, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the law, so that the spirit of the law shall be observed, public safety secured and substantial justice done” (subd 8). Subdivision c of section 668 of the charter authorizes review of a BSA determination by the Board of Estimate, but expressly provides that: “In the case of an application to determine and vary the zoning resolution, review by the board of estimate shall be limited to an administrative determination as to whether the decision of the board of standards and appeals under each of the specific requirements of the zoning resolution was supported by substantial evidence before the board of standards and appeals.” Thus, the Board of Estimate is limited, as are the courts in reviewing variance determinations generally, to considering whether there was substantial evidence for the BSA’s determination. Discretion to grant or deny a variance application is the province of the BSA, not the Board of Estimate. The latter body acts in reviewing a BSA determination as does a court, and therefore may not substitute its judgment for that of the BSA (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 316). The determination of the BSA should be sustained where there is substantial evidence to support it, the responsibility of the Board of Estimate being not to make the zoning decision but simply to review the evidence to determine whether there is support for the decision made by the BSA (cf. Matter of Fuhst v Foley, 45 NY2d 441, 444; Matter of Cowan v Kern, 41 NY2d 591, 599).

The issues before the Appellate Division, therefore, involved not the expertise of the Board of Estimate but the authority of that board in relation to the BSA, and not whether the evidence required the BSA to grant the variance but whether it was substantial enough to support its exercise of the discretion vested in it (and it alone) to grant the variance. If it was, the Board of Estimate exceeded its authority in setting the BSA grant aside and the Board of Estimate’s determination should have been reversed.

The criteria for granting a variance are set forth in section 72-21 of the New York City Zoning Resolution, as subdivision 6 of section 666 of the charter allows. Those criteria relate to the unique physical conditions peculiar to and inherent in the zoning lot, reasonableness of return, aifect on the character of the neighborhood, whether the difficulty has been created by the owner, and whether the variance, if granted, is the minimum variance necessary to afford relief.

With respect to uniqueness the BSA found that the lot was but 16 feet 8 inches in frontage by 100 feet in depth whereas the lot size required in the district was 40 feet frontage and 3,800 square feet in area, that petitioner’s lot was therefore uniquely undersized, permitting enlargement only by expanding into the rear yard, that section 22-14 of the Zoning Resolution permitted use for a community facility, including medical offices or group medical centers, and that section 24-33 of the resolution permitted building in the rear yard for a community facility use provided the height of the building did not exceed, one story nor in any event 23 feet above curb level. It noted that the proposed first-floor extension would be but 17 feet above curb level in height and found that conditions peculiar to this zoning lot resulted in practical difficulty.

The Board of Estimate concluded that the BSA finding of uniqueness was not supported by substantial evidence because “There are no unique physical conditions peculiar to and inherent in the subject zoning lot compared to the lots in the neighborhood,” hardly a sufficient basis for its conclusion since it mouths the wording of the resolution without considering the evidence. The Appellate Division decision (at p 116) states only that “there was no evidence before the BSA that this lot was unique in its dimensions or in any other physical characteristic.” In so concluding, it, as did the board, ignored the tax map and plot plan in the record which show large lots interspersed with narrow lots, ignored the nature of the variance requested (permission to project one and a half stories rather than one story above curb level of an otherwise conforming extension into the rear yard) and the relationship of that variance to physical conditions peculiar to the lot (the presence on the lot of an existing rear yard extension at basement rather than cellar level and the absence, because of the narrowness and small area of the lot as compared to the size and area of lot for which the district is zoned, of any other place on the lot in which the otherwise permissible structure could be erected) and read into “uniqueness” a meaning broader than usually accorded that term in zoning cases. As we have but recently had occasion to state in Matter of Douglaston Civic Assn. v Klein (51 NY2d 963, 965): “Uniqueness does not require that only the parcel of land in question and none other be affected by the condition which creates the hardship (Beatrice Block Club Assn. v Facen, 40 Mich App 372, 380-382; see Matter of Jayne Estates v Raynor, 22 NY2d 417, 425; 2 Anderson, New York Zoning Law and Practice 33, § 18.24; 3 Rathkopf, Law of Zoning and Planning, p 38-15, § 38.02). What is required is that the hardship condition be not so generally applicable throughout the district as to require the conclusion that if all parcels similarly situated are granted variances the zoning of the district would be materially changed. What is involved, therefore, is a comparison between the entire district and the similarly situated land.” As in that case so in this, though there are other plots in the district as narrow as petitioner’s, it cannot be said as a matter of law that the BSA’s finding of uniqueness was arbitrary or capricious or was not supported by substantial evidence.

Concerning reasonableness of return, the BSA, relying on Matter of Envoy Towers Co. v Klein (51 AD2d 925) and the fact that what was requested was an area variance, held proof of no reasonable return not required, but nevertheless found that there was proof of financial hardship in that if the existing offices were vacated the owner could not amortize his investment or obtain either the rent on lease or the market value on sale to keep the building viable. It noted also that the owner had attempted to solve the problem by evicting a residential tenant from the building next door which he also owns. The Board of Estimate contented itself with the conclusory statement that the record failed to support the conclusion that the existing building would not yield a reasonable return. The Appellate Division (at p 117) distinguished Envoy Towers on the ground that unlike that case, in the present case no evidence comparing projected return with and without the variance had been submitted, and concluded that it was plain that the basis for the BSA decision “was the denial of the certificate of eviction and speculation as to the removal of the doctors” which it characterized as “hardly the substantial evidence of practical difficulty required.” In doing so the Appellate Division overemphasized denial of the next door certificate of eviction which had been mentioned by the BSA only in an aside (apparently to make clear that the difficulty was not self-created, the owner having tried to alleviate his space problem in another way before seeking the variance) and ignored the testimony of the architect before the Board of Estimate that the space used by the doctors “is costing $26.00 a square foot when the going rate is $9.00 a square foot for comparable space,” clearly sufficient evidence to support the BSA’s finding that if the medical group was forced out of the building by its need for space the building could not be leased or sold on a basis consistent with economic viability (cf. Matter of Jayne Estates v Raynor, 22 NY2d 417, 424, supra).

The Appellate Division in discussing the minimum variance criteria, also quoted as the basis for its conclusion that the crux of petitioner’s case was “personal inconvenience arising out of the growth and expansion of his practice,” the architect’s testimony that “ ‘It’s not a question of financial hardship’ ” (72 AD2d, at p 117). That statement was made by the architect at the BSA hearing of May 24,1977. There was, however, presented to the BSA at its hearing of September 27, 1977 (and to the Board of Estimate at its May 25, 1978 hearing) evidence establishing the economic viability problem above noted not only from the architect but in the form of an accountant’s report and a Helmsley-Spear report. With that evidence before the BSA, its conclusion on this point cannot be said to be irrational, and as Matter of Pell v Board of Educ. (34 NY2d 222, 231) teaches, “Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard.”

The Appellate Division (at p 117), stating that the BSA findings concerning character of the neighborhood and self-created difficulty “may well have been supported by substantial evidence”, nevertheless noted that the Board of Estimate found detriment in the increased number of patients and resulting increased traffic, noise and air pollution, on which the BSA had not commented, and that the extension would occupy the entire yard contrary to the open yards characteristic in the district. Neither has any bearing whatsoever since a medical officer nor a group medical center, without regard to the number of patients attending at such an office or center, is a permitted use in the district, and when such a use is made of a property within the district, occupation of the entire rear yard is, as was noted earlier in this opinion, expressly permitted by the Zoning Resolution. Moreover, the BSA findings, which both the Board of Estimate and the Appellate Division ignored, expressly stated that the use was one permitted in the district, that no violation of the spirit of the ordinance would occur since the proposed extension was permitted as concerns height, bulk, and density of population, and that no adjacent property would be adversely affected, the property the proposed extension backs up on being, in fact, in a commercially zoned district. Other than as above noted neither the Board of Estimate nor the Appellate Division discussed whether the difficulty was self-created, perhaps, so far as the Board of Estimate is concerned, because the BSA’s counsel testifying before the Board of Estimate pointed out that under subdivision d of section 72-21 if the other four conditions are met, acquisition with knowledge of the Zoning Resolution provisions does not constitute a self-created hardship.

Finally, in relation to the variance granted being the minimum variance necessary, the BSA pointed out that the extension conformed in height and total floor area to the requirements of the Zoning Resolution and concluded that the variance requested was the minimum necessary to afford relief. The Board of Estimate stated, without explication, that there was no evidence in the record to support the BSA conclusion, and the Appellate Division, characterizing the matter as one of “personal inconvenience”, concurred. The conclusions thus reached were evidently predicated on the mistaken impression of both bodies that the variance requested was of the rear yard requirement. As pointed out in the beginning of this opinion, the only variance needed, and the only variance asked for, was that the permitted extension covering the entire rear yard and to be used for the permitted purpose of medical offices be allowed to have one and one-half stories above ground rather than the one story permitted by the resolution.

No more minimum variance is conceivable. No variance having less effect, adverse or otherwise, upon adjacent owners or others living in the neighborhood can be imagined. To put petitioner to the expense of tearing down the existing basement extension into the rear yard and erecting a permitted two-story cellar and first-floor extension covering the entire rear yard would be wholly irrational. To require that he limit his practice to what the present space will accommodate, though other permitted medical offices are not so limited, or to relocate the practice to another building (possibly in the same district and of the same area and frontage) where a two-story extension fully covering the rear yard can be built without a variance would be equally ridiculous.

The Appellate Division’s order sustaining the Board of Estimate’s disapproval can only have resulted from its misunderstanding of the variance requested or the role to be played by the Board of Estimate under subdivision c of section 668 of the New York City Charter, or both. The order of the Appellate Division should be reversed, the determination of the Board of Estimate should be annulled and the determination of the Board of Standards and Appeals granting the requested variance should be reinstated.

Order affirmed, etc.

      . Absent the statutory authorization contained in subdivision 6 of section 666 of the charter, the governing criteria would be the wording of subdivision 8 of that section, quoted above, for, absent a statute otherwise providing, a municipal resolution or ordinance may not abridge the variance power granted by a zoning statute (Matter of Fina Homes v Beckel, 24 Misc 2d 823, 825; cf. Matter of De Sena v Board of Zoning Appeals of Inc. Vil. of Hempstead, 45 NY2d 105, 109; see Matter of Village of Bronxville v Francis, 1 AD2d 236, 238, affd 1 NY2d 839; Matter of Lagin Assoc. v Schoepflin, 50 Misc 2d 497; 1976 Opns Atty Gen 180; 67 NY Jur, Zoning & Planning Laws, § 7, p 579). Under the wording of subdivision 8 an area variance will be granted on a showing of practical difficulty alone, that term, however, being not as yet fully defined by this court (Matter of Fuhst v Foley, 45 NY2d 441, 445; cf. Matter of Wachsberger v Michalis, 19 Misc 2d 909, affd 18 AD2d 921). Because I conclude, as did Mr. Justice Yesawich at the Appellate Division, that there was substantial evidence to support the BSA’s determination under section 72-21 of the Zoning Resolution, it is not necessary in this opinion to discuss subdivision 8, or the cases construing the essentially identical language of subdivision 4 of section 81 of the General City Law, subdivision 6 of section 267 of the Town Law and subdivision 2 of section 7-712 of the Village Law.

      . The findings required by the section are: “(a) That there are unique physicial conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or bulk provisions of the resolution; and that the alleged practical difficulties or unnecessary hardship are not due to circumstances created generally by the strict application of such provisions in the neighborhood or district in which the zoning lot is located, (b) That because of such physical conditions, there is no reasonable possibility that the development of the zoning lot in strict conformity with the provisions of this resolution will bring a reasonable return, and that the grant of a variance is therefore necessary to enable the owner to realize a reasonable return from such zoning lot. * * * (c) That the variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare, (d) That the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner or by a predecessor in title. Where all other required findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship, (e) That within the intent and purposes of this resolution the variance if granted, is the minimum variance necessary to afford relief; and to this end, the Board may permit a lesser variance than that applied for.”

      . While there was such proof in Envoy Towers, its holding, as the cases it cites show, was that economic hardship need not be proved in an area variance case. The Appellate Division’s decision in the instant case, therefore, departs from the holding it articulated in Envoy Towers with respect to the same section 72-21. As is thus evident, the failure of that section to distinguish between area and use variances thus muddies the basis for granting area variances. For the reason indicated in footnote 1 above, I assume for purposes of discussion that the criteria established by the section apply in area as well as use cases, but conclude that the BSA could properly find on the record before it that in this case the criteria were met.


text:
    The People of the State of New York, Respondent, v Eric Roy Glenn, Appellant.
    Argued December 15, 1980;
    decided January 15, 1981

      APPEARANCES OF COUNSEL

      William H. Roth and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Howard Birnbach and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On cross-examination the trial court, over repeated objection, allowed the District Attorney to question defendant not only as to whether he had conferred with his attorney about the case but as well as to the subject matter of their conversation, viz., the law of self-defense. We agree with the Appellate Division that the latter was error. The District Attorney plainly sought to probe defendant’s confidential discussions with his attorney on a matter which was the principal issue in the case and, by compelling defendant to admit that his attorney had informed him of the legal requirements of the justification defense, violated the attorney-client privilege.

We cannot agree with the Appellate Division, however, that the error was harmless. The weight and nature of the proof of guilt, taken in light of the assertion of self-defense, was not overwhelming. Thus there is no basis for consideration of the application here of the harmless error doctrine.

We have examined defendant’s remaining contentions and find they were not preserved for our review.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Benjamin Underwood, Appellant.
    Argued December 16, 1980;
    decided January 15, 1981
    APPEARANCES OF COUNSEL

      Barry M. Fallick for appellant.

      Mario Merola, District Attorney (Harold Kenneth King, Jr., and Timothy J. McGinn of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to provide that the sentences for robbery and assault run concurrently and, as so modified, affirmed.

Defendant was arrested in connection with an incident in which the victim was first approached by two men at the door to her apartment. The victim was knocked unconscious by her assailants and awoke moments later to see defendant kneeling on top of her and choking her. At some time during the incident the assailants took money and keys from their victim. They then fled when neighbors were alerted by the commotion.

Defendant was convicted of both robbery in the first degree (Penal Law, § 160.15) and assault in the first degree (Penal Law, § 120.10, subd 3) and consecutive sentences were imposed. Inasmuch as the People are unable to point to any testimony or evidence which would support the view that the offenses of which defendant stands convicted involved disparate or separate acts, the sentences must run concurrently (Penal Law, § 70.25, subd 2).

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

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


text:
    The People of the State of New York ex rel. Paul Bridgefourth, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted December 29, 1980;
    decided January 15, 1981
   Motion for leave to appeal dismissed upon the ground that the relator has been released on parole and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    In the Matter of Congregation Bais Tefilah of Seagate, Respondent, v Assessor of the Town of Ramapo et al., Appellants.
    Submitted December 22, 1980;
    decided January 15, 1981
   Motion to dismiss the appeal herein granted and the appeal dismissed as untimely (Farragher v City of New York, 19 NY2d 831), with costs and $20 costs of motion.


text:
    The People of the State of New York ex rel. Charles Howard, Appellant, v Warden, Brooklyn House of Detention for Men, Respondent.
    Submitted December 8, 1980;
    decided January 15, 1981
   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 order of the Appellate Division. Motion for leave to prosecute the appeal as a poor person dismissed as academic.


text:
    The People of the State of New York ex rel. Preston Knowles, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted December 15, 1980;
    decided January 15, 1981
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [i]).


text:
    Louis Dreyfus Corporation et al., Appellants, v ACLI International, Inc., et al., Respondents, et al., Defendant.
    Submitted January 12, 1981;
    decided January 15, 1981
   Motion for reargument denied. It appears that the reversal at the Appellate Division was predicated on factual determinations at variance with those of Supreme Court (cf. CPLR 5613, 5612, subd [a]). [See 52 NY2d 736.]


text:
    Ondina Medrano et al., as Administrators of the Estate of Wendy Medrano, Deceased, Respondents, v Frank A. Prado, Also Known as Francisco Prado, Appellant.
    Decided January 15, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i] ; Williams v City of Buffalo, 49 NY2d 799).


text:
    National Film Finance Corporation, Appellant, v Palomar Pictures International, Inc., Respondent.
    Submitted November 17, 1980;
    decided January 15, 1981
   Motion to dismiss the appeal denied.


text:
    Simplex Auto Services, Inc., Appellant, v State of New York, Respondent.
    (Claim No. 58889.)
    Submitted December 15, 1980;
    decided January 15, 1981
   Motion to dismiss the appeal taken as of right herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance (CPLR 5601).


text:
    State Tax Commission, Plaintiff, v Fidelity & Deposit Company of Maryland, Defendant and Third-Party Plaintiff-Respondent. Roy Kohn, Third-Party Defendant-Appellant, et al., Third-Party Defendant.

      Submitted December 29, 1980;
    decided January 15, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 32, p 131). Motion for a stay dismissed as academic.


text:
    In the Matter of Ralph Tutino, Appellant, v Ivan Warner, as a Justice of the Supreme Court, et al., Respondents.
    Submitted December 22, 1980;
    decided January 15, 1981
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, for mootness.


text:
    In the Matter of P.G.P. Entertainment Corp., Appellant, v State Liquor Authority, Respondent.
    Argued December 17, 1980;
    decided January 20, 1981

      APPEARANCES OF COUNSEL

      Jack C. Brill for appellant.

      Joseph S. Ryan and Warren B. Pesetsky for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the determination of the New York State Liquor Authority annulled and the matter remitted to the Supreme Court, Bronx County, with directions to remand to the authority for further proceedings in accordance with this memorandum.

The bases of the State Liquor Authority’s denial of petitioner’s application for a special on-premises liquor license were the perceived lack of expertise of the proprietor-corporate principals, the proximity of the proposed establishment to a synagogue and the adverse sentiment in the community. As this court recently held, neither community opposition nor proximity to places of worship or schools beyond the statutory limit can support a license denial (Matter of Circus Disco v New York State Liq. Auth., 51 NY2d 24). Although the authority validly may consider the expertise or ability of the applicant to operate a particular establishment (see Matter of Herms v New York State Liq. Auth., 35 AD2d 833, affd no opn 28 NY2d 956), the agency’s reliance on additional improper factors requires that its determination be annulled. Nevertheless, since the lack of expertise of the applicant would be a valid ground for denial of the license (see id.), the matter should be remitted to the authority for reconsideration of the application on the basis of that and other appropriate criteria, with an appropriate opportunity to both sides to address the issues.

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

Order reversed, with costs, etc.


text:
    American Utex International, Ltd., Appellant, v ICC Corporation, Respondent.
    Submitted January 9, 1981;
    decided January 20, 1981

      APPEARANCES OF COUNSEL

      Bernard Ouziel, Jack Gumpert Wasserman and Barbara E. Olk for appellant.

      Chang Moon Sohn and Randall S. D. Jacobs for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (74 AD2d 747; see, also, Florence v Merchants Cent. Alarm Co., 51 NY2d 793, 795).

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


text:
    In the Matter of Donna Dorene G., a Child Alleged to be Permanently Neglected. St. Lawrence County Department of Social Services, Respondent; Donald G., Appellant; Foster Parents, Respondents.
    Argued January 5, 1981;
    decided January 20, 1981

      APPEARANCES OF COUNSEL

      Richard A. Dudley, Jr., for appellant.

      Terrence J. Whelan and Ethan K. Phillips for St. Lawrence County Department of Social Services, respondent.

      Terry O’Donnell for foster parents, respondents.
   OPINION OF THE COURT

Order reversed, with costs to appellant against the St. Lawrence County Department of Social Services only, and the petition dismissed for reasons stated in the dissenting opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (70 AD2d, at pp 195-197; see, also, Matter of Leon RR, 48 NY2d 117).

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


text:
    The People of the State of New York, Respondent, v Larry Pickett, Appellant.
    Argued December 17, 1980;
    decided January 20, 1981

      APPEARANCES OF COUNSEL

      Kenneth G. Schwarz for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that it was not constitutionally required that defendant be represented by counsel at the lineup, which was conducted at an investigatory, prearraignment stage in the proceedings (cf. People v Coleman, 43 NY2d 222). Although the record indicates that at the time this procedure took place defendant was in custody on an unrelated robbery offense, that fact does not acquire significance where, contrary to what was said in the opinion below, there is no assertion by the defendant, nor any indication in the record submitted that defendant was then represented by counsel on either charge.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Ambrose Moses, Respondent.
    Argued December 17, 1980;
    decided January 20, 1981
   Appeal dismissed upon the ground that it appears, after briefing and argument of the appeal, that the reversal by the Appellate Division was not on the law alone within the meaning of CPL 450.90 (subd 2, par [a]) (as amd eff Jan. 1, 1980).


text:
    The People of the State of New York, Appellant, v Luis Rivera, Respondent.
    Argued January 8, 1981;
    decided January 20, 1981
   Appeal dismissed (see People v Johnson, 47 NY2d 124).


text:
    In the Matter of Valerio Szvanka, Appellant, v City of New York, Respondent.
    Argued December 17, 1980;
    decided January 20, 1981
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of Clarence Dickson, Appellant, v John Lascaris, as Commissioner of the Onondaga County Department of Social Services, et al., Respondents.
    Submitted January 12, 1981;
    decided January 20, 1981
   Motion to dismiss the appeal denied.


text:
    Eastern Paralyzed Veterans Association, Inc., et al., Appellants, v Metropolitan Transportation Authority et al., Respondents.
    Decided January 20, 1981
    APPEARANCES OF COUNSEL

      Stephen L. Solomon for appellants.

      Eugene Friedus and Joan Offner for Metropolitan Transportation Authority and others, respondents.

      Robert Abrams, Attorney-General, for Comptroller of the State of New York, respondent.

      Allen G. Schwartz, Corporation Counsel, for Comptroller of the City of New York, respondent.
   OPINION OF THE COURT

Appeal dismissed, without costs, by the court sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Martin Ginsberg, Respondent, v Francis Purcell, as County Executive of Nassau County, et al., Appellants.
    Submitted January 5, 1981;
    decided January 20, 1981
   Motion for reargument denied, with $20 costs and necessary reproduction disbursements. [See 51 NY2d 272.]

Judge Wachtler taking no part.


text:
    Mildred A. McLearn, Appellant, v Cowen & Co. et al., Defendants, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Respondent.
    Submitted October 20, 1980;
    decided January 20, 1981
   Motion for waiver of 30-day time limit and for reargument denied, without prejudice to renewal in the event the Federal District Court amends its order to show that it declined to exercise pendent jurisdiction over the State court action, with $20 costs and necessary reproduction disbursements to respondent. [See 48 NY2d 696.]


text:
    Jore Miocic et al., Respondents, v Russell E. Winters et al., Appellants.
    Submitted January 12, 1981;
    decided January 20, 1981
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, upon the ground that the Appellate Division order [66 AD2d 770] granting a new trial, here brought up for review, did not “necessarily affect” the final judgment, as required by CPLR 5601 (subd [d]) (Cohen and Karger, Powers of the New York Court of Appeals, § 79, p 344).

Judge Fuchsberg taking no part.


text:
    Amy K. Quinn et al., Appellants, v Stuart Lakes Club, Inc., et al., Respondents.
    Decided January 20, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellants are not parties aggrieved (CPLR 5511).


text:
    In the Matter of Schultz Construction, Inc., Appellant-Respondent, v Philip Ross, as Industrial Commissioner of the State of New York, Respondent-Appellant.
    Decided January 20, 1981
   Appeal taken by Schultz Construction, Inc., dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that Schultz Construction is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Dolores Sorli, Appellant, v Arthur Levitt, as Comptroller of the State of New York, Respondent.
    Submitted December 22, 1980;
    decided January 20, 1981
   Motion to dismiss appeal granted and the appeal dismissed as untimely taken (CPLR 5513, subd [a]), with cost and $20 costs of motion.


text:
    NOW Productions, Inc., Appellant, v Ernest Tidyman Productions, Inc., et al., Defendants, and Warner Communications, Inc., Respondent.
    Argued January 6, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Carl E. Person for appellant.

      Laurence Greenwald and William R. Kutner for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Arnold L. Fein at the Appellate Division (73 AD2d 168).

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


text:
    In the Matter of Mervyn Dubner et al., as Parents and Natural Guardians of Matthew Dubner, a Handicapped Child, Respondents, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Appellants.
    Argued January 7, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      James E. Morgan, Robert D. Stone and Jean M. Coon for appellants.

      Charles G. Davis for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the court below that, pursuant to section 4407 of the Education Law, the State Education Department has the statutory authority to contract with public as well as private out-of-State educational facilities for purposes of providing educational services to handicapped New York residents unable to find suitable instruction within this State. We would only add that the statute relied upon by the Commissioner of Education in support of the position that the Education Department can only contract with private out-of-State facilities clearly defines a handicapped child as one who “can receive appropriate educational opportunities from special services and programs to include, but not limited to* * * the special services and programs delineated in subdivision two” of section 4401 of the Education Law. (Education Law, § 4401, subd 1 [emphasis supplied].) Although the services delineated therein include private nonresidential and private residential out-of-State schools. (Education Law, § 4401, subd 2, pars f, h), that statute does not expressly exclude public out-of-State schools and certainly does not qualify the broader grant of authority found in section 4407 of the Education Law which empowers the State Education Department to contract with an out-of-State “educational facility”, be it public or private.

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

Order affirmed.

       Of course, a handicapped child can be placed in an out-of-State school only upon a determination by the Education Department that appropriate instruction is unavailable within the State and certification by the commissioner as to the handicap or handicaps involved. (Education Law, § 4407, subd 1.)


text:
    Anthony Ciccone, Respondent, v Waterfront Commission of New York Harbor, Appellant. Joseph A. Byrne, Respondent, v Waterfront Commission of New York Harbor, Appellant. Russell W. Neitz, Respondent, v Waterfront Commission of New York Harbor, Appellant. Northeast Marine Terminal Co., Inc., Respondent, v Waterfront Commission of New York Harbor, Appellant.
    Argued January 5, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      James J. McConnell and Susan Lushing for. appellant.

      Howard Schulman, Robert H. Bogucki and David Jaffe for Anthony Ciccone, respondent.

      Martin J. McHugh, Dennis C. McMahon and William M. Kimball for Joseph Byrne and another, respondents.

      Mark Abromowitz, Elliot Cohen and Michael Friedman for Northeast Marine Terminal. Co., Inc., respondent.
   Memorandum.

The judgment, of the Appellate Division should be reversed, with- costs, the determination of the Waterfront Commission, reinstated, and the petitions dismissed.

There was substantial evidence before the commission, considering both the evidentiary facts stipulated and the factual inferences reasonably to be drawn from them, to support the determination (cf. Matter of Police Benevolent Assn. of City of Yonkers v New York State Public Employment Relations Bd., 51 NY2d 779).

In this case the commission was entitled to draw reasonable inferences both from the testimony of the parties which was stipulated and as well from what was not testified to by them to the extent that the subject matter so omitted might properly be deemed to have been known to them had it existed. (Compare, e.g., the inference permitted when a party fails to call a witness to produce relevant evidence which would be available to him (PJI 1:75; Richardson, Evidence [10th ed], § 92). Thus, although there was testimony that Ciccone was looking for a raise in salary there was no evidence as to what justification he had advanced for such request or in particular that the request had been based on an assertion or recognition that he had additional responsibilities or was doing extra work. Similarly, while there was conclusory testimony that Ciccone was “subject to call” at certain times, there was no testimony as to how often, if indeed ever, he had in fact been called on to perform out-of-hours duty. Moreover both Byrne and Neitz testified that Ciccone had no need for a motor vehicle in the performance of his duties as extra-labor foreman. There was direct testimony that, had Ciccone’s compensation in the form of salary been increased, the employer would have had to increase the salaries of other employees. In view of this testimony coupled with the absence of any explanation why an increase in compensation in another form would not similarly have had to be matched, the inference was available, there having been no equivalent compensation given to other employees, that the assignment of the automobile was not considered an increase in compensation. Additionally the" testimony was that Ciccone was the only nonmanagement employee to be accorded the use of an automobile.

As we have stated in another context, “One intent on violating the Law Against Discrimination cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive — for we deal in an area in which ‘subtleties of conduct * * * play no small part’. (Cf. Labor Bd. v. Express Pub. Co., 312 U. S. 426, 437.)” (Matter of Holland v Edwards, 307 NY 38, 45.) Similarly, participants in a scheme to evade the strictures of the Labor Management Relations Act, the New York State Labor Law or the Waterfront Commission Act would not be expected to provide express proof of their own derelictions. Accordingly, as with the testimony of any interested witness, it was for the trier of fact to determine whether or not the testimony of Neitz and Byrne had been colored, intentionally or unintentionally, by their self-interest. Beyond that, single-tier inferences must necessarily be relied on when the ultimate issue, as here, is really the state of mind and subjective purpose of the actors when they took the objective action. In this case it is undisputed that Ciccone, both an employee of the stevedore company and an officer of the labor union representing the employees of that company, was given the extraordinary advantage of the use of the Buick sedan. Whether there was a violation of statute depended on the purpose for which this was done. We are satisfied that there was substantial evidence to support the factual conclusion that by the provision of the leased 1976 Buick sedan for his personal use, Ciccone had been given something of value which was over and above his compensation for or by reason of his services as an employee of the stevedore company in violation of the statutory proscriptions.

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

Judgment reversed, etc.

      . We recognize that the commission had both the burden of proof and the burden of going forward with the evidence.


text:
    In the Matter of Shiseido Cosmetics (America) , Ltd., et al., Respondents, v State Human Rights Appeal Board et al., Respondents, and Joan C. Laufer, Appellant.
    Argued January 5, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Michael F. Erdheim for appellant.

      Lloyd De Vos for petitioners-respondents.
   OPINION OF THE COURT

Order affirmed, with costs. We agree, and for the reasons stated by the Appellate Division, that there is not sufficient evidence on the record considered as a whole to support the determination of the State Human Rights Appeal Board that respondent discriminated against complainant because of her national origin in violation of the Human Rights Law.

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