author: Simons, J. Meyer, J. Titone, J.

text:
    Michael O'Brien, Respondent-Appellant, v Loretta O'Brien, Appellant-Respondent.
    Argued November 11, 1985;
    decided December 26, 1985

      POINTS OF COUNSEL

      Albert J. Emanuelli for appellant-respondent.
    I. A medical license earned during marriage is intended by the Legislature as "marital property” within the meaning of Domestic Relations Law § 236 (B) and has separate value when there are no other marital assets to distribute. (Kriger v Kriger, 115 Misc 2d 595; Spaulding v Benenati, 57 NY2d 418; Conner v Conner, 97 AD2d 88; Litman v Litman, 93 AD2d 695, 61 NY2d 918; Matter of Bender v Board of Regents, 262 App Div 627; Conteh v Conteh, 117 Misc 2d 42; Jolis v Jolis, 98 AD2d 692; Lee v Lee, 93 AD2d 221; Arvantides v Arvantides, 64 NY2d 1033; Nehorayoff v Nehorayoff, 108 Misc 2d 311.) II. The uncontroverted valuation by defendant’s expert fixing the present value of Dr. O’Brien’s medical license should be left intact because it was wholly credible by all acceptable standards of proof. (Meiselman v Crown Hgts. Hosp., 285 NY 389; People v Sugden, 35 NY2d 453; Franchell v Sims, 73 AD2d 1; Bartkowiak v St. Adalbert’s R. C. Church Socy., 40 AD2d 306; Zaninovich v American Airlines, 26 AD2d 155; DeLong v County of Erie, 89 AD2d 376; Mercado v City of New York, 46 Misc 2d 358; Sanchez v Denver & Rio Grande W. R. R. Co., 538 F2d 304; Heater v Chesapeake & Ohio Ry. Co., 497 F2d 1243; Hirschfeld v Hirschfeld, 96 AD2d 473.) III. The trial court properly considered and set forth the requisite Domestic Relations Law § 236 (B) factors and CPLR 4213 (b) facts essential to its decision. (Nielsen v Nielsen, 91 AD2d 1016; Johnson v

      Johnson, 93 AD2d 855.) IV. Objections to the present value methodology of evaluating a medical license as property are invalid. V. Foreign jurisdictional approaches to the medical license syndrome are not controlling because no other State has a statute comparable to that of New York. VI. The trial court’s award to defendant could have exceeded 40% of the present value of the doctor’s medical license in view of the uncontroverted proof. VII. Reimbursement alone was not meaningful nor fair financial redress to defendant for her contributions to plaintiffs medical license. (In re Spong, 661 F2d 6.)

      Willard H. Da Silva and Richard J. Keidel for respondent-appellant.
    I. Knowledge is not "property”. (Erkenbrach v Erkenbrach, 96 NY 456; Langerman v Langerman, 303 NY 465; Matter of Swedenborg Found. v Lewisohn, 40 NY2d 87; Fulton Light, Heat & Power Co. v State of New York, 65 Misc 263, 138 App Div 931, 200 NY 400.) II. The classification of a professional license as "marital property” is a fiction to produce a desired result. III. The New York statute does not authorize money awards in the abstract but limits the court to a division of property. (De Brauwere v De Brauwere, 203 NY 460; Laumier v Laumier, 237 NY 357.) IV. The vast majority of jurisdictions classify neither an educational degree nor a license as property but apply a different remedy. V. Reimbursement is a possible remedy. VI. Rehabilitative maintenance, not reimbursement for general living expenses, is a remedy. (Lesman v Lesman, 88 AD2d 153.) VII. The assignment of future earnings is a distribution of separate property. (Hickland v Hickland, 39 NY2d 1; Lind v Lind, 89 AD2d 518; Corsell v Corsell, 101 AD2d 766; Van Ess v Van Ess, 100 AD2d 848; Pederson v Pederson, 91 AD2d 818.) VIII. The mandated 10 factors were not considered, and the basis for the award was not stated. (Nielsen v Nielsen, 91 AD2d 1016; Johnson v Johnson, 93 AD2d 855; International Salt Co. v State of New York, 125 Misc 2d 939.) IX. The courts below improperly refused to give consideration to any evidence of appellant’s misconduct. (M.V.R. v J.M.R., 115 Misc 2d 674; Giannola v Giannola, 109 Misc 2d 985; Librizzi v Librizzi, 112 Misc 2d 57; Alford v Alford, 104 AD2d 390; Lentz v Lentz, 103 AD2d 822; Van Ess v Van Ess, 100 AD2d 848; Wilson v Wilson, 101 AD2d 536; McMahan v McMahan, 100 AD2d 826; Pacifico v Pacifico, 101 AD2d 709; Stevens v Stevens, 107 AD2d 987; Nolan v Nolan, 107 AD2d 190.) X. The trial court’s failure to state the basis for its award is reversible error. (Nielsen v Nielsen, 91 AD2d 1016.) XI. The award of attorneys’ fees and accountant’s fees was improper under the circumstances. (Cataldi v Shaw, 93 AD2d 875; Matter of Gilman, 112 Misc 2d 452; Austin v Austin, 88 AD2d 649.)

      Sally Weinraub, Shirley Tolley and Brynne Haines for Westchester Women’s Bar Association, amicus curiae.

    I. The trial court correctly construed respondent’s medical license as marital property under New York’s Equitable Distribution Law. (Litman v Litman, 61 NY2d 918; Clarkson v Clarkson, 103 AD2d 964; Majauskas v Majauskas, 61 NY2d 481; Damiano v Damiano, 94 AD2d 132; Reed v Reed, 93 AD2d 105.) II. The case law of sister States cannot be determinative since the statutes of those States do not contain the unique provisions of New York’s Equitable Distribution Law. III. An award based on the theory of restitution should consider all the elements of spousal contribution. IV. The trial court properly precluded testimony on the issue of defendant’s fault. (Blickstein v Blickstein, 99 AD2d 287.)
   OPINION OF THE COURT

Simons, J.

In this divorce action, the parties’ only asset of any consequence is the husband’s newly acquired license to practice medicine. The principal issue presented is whether that license, acquired during their marriage, is marital property subject to equitable distribution under Domestic Relations Law § 236 (B) (5). Supreme Court held that it was and accordingly made a distributive award in defendant’s favor. It also granted defendant maintenance arrears, expert witness fees and attorneys’ fees (114 Mise 2d 233). On appeal to the Appellate Division, a majority of that court held that plaintiff’s medical license is not marital property and that defendant was not entitled to an award for the expert witness fees. It modified the judgment and remitted the case to Supreme Court for further proceedings, specifically for a determination of maintenance and a rehabilitative award (106 AD2d 223). The matter is before us by leave of the Appellate Division.

We now hold that plaintiff’s medical license constitutes "marital property” within the meaning of Domestic Relations Law § 236 (B) (1) (c) and that it is therefore subject to equitable distribution pursuant to subdivision 5 of that part. That being so, the Appellate Division erred in denying a fee, as a matter of law, to defendant’s expert witness who evaluated the license.

I

Plaintiff and defendant married on April 3, 1971. At the time both were employed as teachers at the same private school. Defendant had a bachelor’s degree and a temporary teaching certificate but required 18 months of postgraduate classes at an approximate cost of $3,000, excluding living expenses, to obtain permanent certification in New York. She claimed, and the trial court found, that she had relinquished the opportunity to obtain permanent certification while plaintiff pursued his education. At the time of the marriage, plaintiff had completed only three and one-half years of college but shortly afterward he returned to school at night to earn his bachelor’s degree and to complete sufficient premedical courses to enter medical school. In September 1973 the parties moved to Guadalajara, Mexico, where plaintiff became a full-time medical student. While he pursued his studies defendant held several teaching and tutorial positions and contributed her earnings to their joint expenses. The parties returned to New York in December 1976 so that plaintiff could complete the last two semesters of medical school and internship training here. After they returned, defendant resumed her former teaching position and she remained in it at the time this action was commenced. Plaintiff was licensed to practice medicine in October 1980. He commenced this action for divorce two months later. At the time of trial, he was a resident in general surgery.

During the marriage both parties contributed to paying the living and educational expenses and they received additional help from both of their families. They disagreed on the amounts of their respective contributions but it is undisputed that in addition to performing household work and managing the family finances defendant was gainfully employed throughout the marriage, that she contributed all of her earnings to their living and educational expenses and that her financial contributions exceeded those of plaintiff. The trial court found that she had contributed 76% of the parties’ income exclusive of a $10,000 student loan obtained by defendant. Finding that plaintiffs medical degree and license are marital property, the court received evidence of its value and ordered a distributive award to defendant.

Defendant presented expert testimony that the present value of plaintiffs medical license was $472,000. Her expert testified that he arrived at this figure by comparing the average income of a college graduate and that of a general surgeon between 1985, when plaintiffs residency would end, and 2012, when he would reach age 65. After considering Federal income taxes, an inflation rate of 10% and a real interest rate of 3% he capitalized the difference in average earnings and reduced the amount to present value. He also gave his opinion that the present value of defendant’s contribution to plaintiff’s medical education was $103,390. Plaintiff offered no expert testimony on the subject.

The court, after considering the life-style that plaintiff would enjoy from the enhanced earning potential his medical license would bring and defendant’s contributions and efforts toward attainment of it, made a distributive award to her of $188,800, representing 40% of the value of the license, and ordered it paid in 11 annual installments of various amounts beginning November 1, 1982 and ending November 1, 1992. The court also directed plaintiff to maintain a life insurance policy on his life for defendant’s benefit for the unpaid balance of the award and it ordered plaintiff to pay defendant’s counsel fees of $7,000 and her expert witness fee of $1,000. It did not award defendant maintenance.

A divided Appellate Division, relying on its prior decision in Conner v Conner (97 AD2d 88) and the decision of the Fourth Department in Lesman v Lesman (88 AD2d 153, appeal dismissed 57 NY2d 956), concluded that a professional license acquired during marriage is not marital property subject to distribution. It therefore modified the judgment by striking the trial court’s determination that it is and by striking the provision ordering payment of the expert witness for evaluating the license and remitted the case for further proceedings.

On these cross appeals, defendant seeks reinstatement of the judgment of the trial court. Plaintiff contends that the Appellate Division correctly held that a professional license is not marital property but he also urges that the trial court failed to adequately explain what factors it relied on in making its decision, that it erroneously excluded evidence of defendant’s marital fault and that the trial court’s awards for attorneys and expert witness fees were improper.

II

The Equitable Distribution Law contemplates only two classes of property: marital property and separate property (Domestic Relations Law § 236 [B] [c], [d]). The former, which is subject to equitable distribution, is defined broadly as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held” (Domestic Relations Law § 236 [B] [1] [c] [emphasis added]; see, § 236 [B] [5] [b], [c]). Plaintiff does not contend that his license is excluded from distribution because it is separate property; rather, he claims that it is not property at all but represents a personal attainment in acquiring knowledge. He rests his argument on decisions in similar cases from other jurisdictions and on his view that a license does not satisfy common-law concepts of property. Neither contention is controlling because decisions in other States rely principally on their own statutes, and the legislative history underlying them, and because the New York Legislature deliberately went beyond traditional property concepts when it formulated the Equitable Distribution Law (see generally, 2 Foster-Freed-Brandes, Law and the Family — New York ch 33, at 917 et set. [1985 Cum Supp]). Instead, our statute recognizes that spouses have an equitable claim to things of value arising out of the marital relationship and classifies them as subject to distribution by focusing on the marital status of the parties at the time of acquisition. Those things acquired during marriage and subject to distribution have been classified as "marital property” although, as one commentator has observed, they hardly fall within the traditional property concepts because there is no common-law property interest remotely resembling marital property. "It is a statutory creature, is of no meaning whatsoever during the normal course of a marriage and arises full-grown, like Athena, upon the signing of a separation agreement or the commencement of a matrimonial action. [Thus] [i]t is hardly surprising, and not at all relevant, that traditional common law property concepts do not fit in parsing the meaning of 'marital property’ ” (Florescue, "Market Value”, Professional Licenses and Marital Property: A Dilemma in Search of a Horn, 1982 NY St Bar Assn Fam L Rev 13 [Dec.]). Having classified the "property” subject to distribution, the Legislature did not attempt to go further and define it but left it to the courts to determine what interests come within the terms of section 236 (B) (1) (c).

We made such a determination in Majauskas v Majauskas (61 NY2d 481), holding there that vested but unmatured pension rights are marital property subject to equitable distribution. Because pension benefits are not specifically identified as marital property in the statute, we looked to the express reference to pension rights contained in section 236 (B) (5) (d) (4) , which deals with equitable distribution of marital property, to other provisions of the equitable distribution statute and to the legislative intent behind its enactment to determine whether pension rights are marital property or separate property. A similar analysis is appropriate here and leads to the conclusion that marital property encompasses a license to practice medicine to the extent that the license is acquired during marriage.

Section 236 provides that in making an equitable distribution of marital property, "the court shall consider: * * * (6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party [and] * * * (9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession” (Domestic Relations Law § 236 [B] [d] [6], [9] [emphasis added]). Where equitable distribution of marital property is appropriate but "the distribution of an interest in a business, corporation or profession would be contrary to law” the court shall make a distributive award in lieu of an actual distribution of the property (Domestic Relations Law § 236 [B] [5] [e] [emphasis added]). The words mean exactly what they say: that an interest in a profession or professional career potential is marital property which may be represented by direct or indirect contributions of the non-title-holding spouse, including financial contributions and nonfinancial contributions made by caring for the home and family-

The history which preceded enactment of the statute confirms this interpretation. Reform of section 236 was advocated because experience had proven that application of the traditional common-law title theory of property had caused inequities upon dissolution of a marriage. The Legislature replaced the existing system with equitable distribution of marital property, an entirely new theory which considered all the circumstances of the case and of the respective parties to the marriage (Assembly Memorandum, 1980 NY Legis Ann, at 129-130). Equitable distribution was based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker (id., at 130; see, Governor’s Memorandum of Approval, 1980 McKinney’s Session Laws of NY, at 1863). Consistent with this purpose, and implicit in the statutory scheme as a whole, is the view that upon dissolution of the marriage there should be a winding up of the parties’ economic affairs and a severance of their economic ties by an equitable distribution of the marital assets. Thus, the concept of alimony, which often served as a means of lifetime support and dependence for one spouse upon the other long after the marriage was over, was replaced with the concept of maintenance which seeks to allow "the recipient spouse an opportunity to achieve [economic] independence” (Assembly Memorandum, 1980 NY Legis Ann, at 130).

The determination that a professional license is marital property is also consistent with the conceptual base upon which the statute rests. As this case demonstrates, few undertakings during a marriage better qualify as the type of joint effort that the statute’s economic partnership theory is intended to address than contributions toward one spouse’s acquisition of a professional license. Working spouses are often required to contribute substantial income as wage earners, sacrifice their own educational or career goals and opportunities for child rearing, perform the bulk of household duties and responsibilities and forego the acquisition of marital assets that could have been accumulated if the professional spouse had been employed rather than occupied with the study and training necessary to acquire a professional license. In this case, nearly all of the parties’ nine-year marriage was devoted to the acquisition of plaintiff’s medical license and defendant played a major role in that project. She worked continuously during the marriage and contributed all of her earnings to their joint effort, she sacrificed her own educational and career opportunities, and she traveled with plaintiff to Mexico for three and one-half years while he attended medical school there. The Legislature has decided, by its explicit reference in the statute to the contributions of one spouse to the other’s profession or career (see, Domestic Relations Law § 236 [B] [5] [d] [6], [9]; [e]), that these contributions represent investments in the economic partnership of the marriage and that the product of the parties’ joint efforts, the professional license, should be considered marital property.

The majority at the Appellate Division held that the cited statutory provisions do not refer to the license held by a professional who has yet to establish a practice but only to a going professional practice (see, e.g., Arvantides v Arvantides, 64 NY2d 1033; Litman v Litman, 61 NY2d 918). There is no reason in law or logic to restrict the plain language of the statute to existing practices, however, for it is of little consequence in making an award of marital property, except for the purpose of evaluation, whether the professional spouse has already established a practice or whether he or she has yet to do so. An established practice merely represents the exercise of the privileges conferred upon the professional spouse by the license and the income flowing from that practice represents the receipt of the enhanced earning capacity that licensure allows. That being so, it would be unfair not to consider the license a marital asset.

Plaintiff’s principal argument, adopted by the majority below, is that a professional license is not marital property because it does not fit within the traditional view of property as something which has an exchange value on the open market and is capable of sale, assignment or transfer. The position does not withstand analysis for at least two reasons. First, as we have observed, it ignores the fact that whether a professional license constitutes marital property is to be judged by the language of the statute which created this new species of property previously unknown at common law or under prior statutes. Thus, whether the license fits within traditional property concepts is of no consequence. Second, it is an overstatement to assert that a professional license could not be considered property even outside the context of section 236 (B). A professional license is a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder, which may not be revoked without due process of law (see, Matter of Bender v Board of Regents, 262 App Div 627, 631; People ex rel. Greenberg v Reid, 151 App Div 324, 326). That a professional license has no market value is irrelevant. Obviously, a license may not be alienated as may other property and for that reason the working spouse’s interest in it is limited. The Legislature has recognized that limitation, however, and has provided for an award in lieu of its actual distribution (see, Domestic Relations Law § 236 [B] [5] [e]).

Plaintiff also contends that alternative remedies should be employed, such as an award of rehabilitative maintenance or reimbursement for direct financial contributions (see, e.g., Kutanovski v Kutanovski, 109 AD2d 822, 824; Conner v Conner, 97 AD2d 88, 101, supra; Lesman v Lesman, 88 AD2d 153, 158-159, supra). The statute does not expressly authorize retrospective maintenance or rehabilitative awards and we have no occasion to decide in this case whether the authority to do so may ever be implied from its provisions (but see, Cappiello v Cappiello, 66 NY2d 107). It is sufficient to observe that normally a working spouse should not be restricted to that relief because to do so frustrates the purposes underlying the Equitable Distribution Law. Limiting a working spouse to a maintenance award, either general or rehabilitative, not only is contrary to the economic partnership concept underlying the statute but also retains the uncertain and inequitable economic ties of dependence that the Legislature sought to extinguish by equitable distribution. Maintenance is subject to termination upon the recipient’s remarriage and a working spouse may never receive adequate consideration for his or her contribution and may even be penalized for the decision to remarry if that is the only method of compensating the contribution. As one court said so well, "[t]he function of equitable distribution is to recognize that when a marriage ends, each of the spouses, based on the totality of the contributions made to it, has a stake in and right to a share of the marital assets accumulated while it endured, not because that share is needed, but because those assets represent the capital product of what was essentially a partnership entity” (Wood v Wood, 119 Misc 2d 1076, 1079). The Legislature stated its intention to eliminate such inequities by providing that a supporting spouse’s "direct or indirect contribution” be recognized, considered and rewarded (Domestic Relations Law § 236 [B] [5] [d] [6]).

Turning to the question of valuation, it has been suggested that even if a professional license is considered marital property, the working spouse is entitled only to reimbursement of his or her direct financial contributions (see, Note, Equitable Distribution of Degrees and Licenses: Two Theories Toward Compensating Spousal Contributions, 49 Brooklyn L Rev 301, 317-322). By parity of reasoning, a spouse’s down payment on real estate or contribution to the purchase of securities would be limited to the money contributed, without any remuneration for any incremental value in the asset because of price appreciation. Such a result is completely at odds with the statute’s requirement that the court give full consideration to both direct and indirect contributions "made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker” (Domestic Relations Law § 236 [B] [5] [d] [6] [emphasis added]). If the license is marital property, then the working spouse is entitled to an equitable portion of it, not a return of funds advanced. Its value is the enhanced earning capacity it affords the holder and although fixing the present value of that enhanced earning capacity may present problems, the problems are not insurmountable. Certainly they are no more difficult than computing tort damages for wrongful death or diminished earning capacity resulting from injury and they differ only in degree from the problems presented when valuing a professional practice for purposes of a distributive award, something the courts have not hesitated to do (see, Arvantides v Arvantides, 64 NY2d 1033, supra; Litman v Litman, 93 AD2d 695, affd 61 NY2d 918, supra; Billington v Billington, 111 AD2d 203; Cohen v Cohen, 104 AD2d 841, appeal dismissed 64 NY2d 773; Nehorayoff v Nehorayoff, 108 Misc 2d 311). The trial court retains the flexibility and discretion to structure the distributive award equitably, taking into consideration factors such as the working spouse’s need for immediate payment, the licensed spouse’s current ability to pay and the income tax consequences of prolonging the period of payment (see, Internal Revenue Code [26 USC] § 71 [a] [1]; [c] [2]; Treas Reg [26 CFR] § 1.71-1 [d] [4]) and, once it has received evidence of the present value of the license and the working spouse’s contributions toward its acquisition and considered the remaining factors mandated by the statute (see, Domestic Relations Law § 236 [B] [5] [d] [1]-[10]), it may then make an appropriate distribution of the marital property including a distributive award for the professional license if such an award is warranted. When other marital assets are of sufficient value to provide for the supporting spouse’s equitable portion of the marital property, including his or her contributions to the acquisition of the professional license, however, the court retains the discretion to distribute these other marital assets or to make a distributive award in lieu of an actual distribution of the value of the professional spouse’s license (see, Majauskas v Majauskas, 61 NY2d 481, 493, supra).

in

Three additional issues remain for our consideration.

First, plaintiff notes that the statute requires the trial court to state the factors it considered and the basis for its decision in making distribution and that neither the parties nor counsel may waive that requirement (see, Domestic Relations Law § 236 [B] [5] [g]). He contends that the court failed to adequately do so in this case. We have held recently that while section 236 (B) (5) (g) does not require the court to analyze each of the factors stated in subdivision (5) (d) and give reasons as to each, it still must set forth all the factors it considered and the reason for its decision (Cappiello v Cappiello, 66 NY2d 107, supra). Unless the trial judge reveals not only the factors he considered, but also his reasoning for the award made, intelligent review of the broad discretion entrusted to him is not possible.

The evidence before the trial court in this case supported its factual findings but its decision does not indicate what factors it considered, or the weight it attributed to them, in making the distributive award to defendant. Nevertheless, the Appellate Division has the same authority to make an award of marital property as does the trial court (see, Majauskas v Majauskas, 61 NY2d 481, supra), and it may effectuate the award and set forth the factors it considers determinative and the reasons for its decision or it may remit the matter to Special Term for that purpose if it is unable to do so (see, Kobylack v Kobylack, 62 NY2d 399).

Plaintiff also contends that the trial court erred in excluding evidence of defendant’s marital fault on the question of equitable distribution. Arguably, the court may consider marital fault under factor 10, "any other factor which the court shall expressly find to be just and proper” (Domestic Relations Law § 236 [B] [5] [d] [10]; see, Scheinkman, 1981 Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C236B:13, pp 205-206 [1977-1984 Supp Pamphlet]). Except in egregious cases which shock the conscience of the court, however, it is not a "just and proper” factor for consideration in the equitable distribution of marital property (Blickstein v Blickstein, 99 AD2d 287, 292, appeal dismissed 62 NY2d 802; see, Stevens v Stevens, 107 AD2d 987; Pacifico v Pacifico, 101 AD2d 709; McMahan v McMahan, 100 AD2d 826). That is so because marital fault is inconsistent with the underlying assumption that a marriage is in part an economic partnership and upon its dissolution the parties are entitled to a fair share of the marital estate, because fault will usually be difficult to assign and because introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues (see, Blickstein v Blickstein, supra, at p 292; McMahan v McMahan, supra, at p 827). We have no occasion to consider the wife’s fault in this action because there is no suggestion that she was guilty of fault sufficient to shock the conscience.

Finally, plaintiff contends that the trial court erred in allowing defendant an award of counsel fees and defendant contends the Appellate Division erred in deleting the trial court’s award of expert witness fees. The decision to award either expert witness fees or attorney’s fees lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as the trial court’s is (see, Domestic Relations Law § 237 [a], [c]; Majauskas v Majauskas, 61 NY2d 481, 493-494, supra,). Because the Appellate Division’s affirmance of the award of counsel fees cannot be characterized as an abuse of discretion as a matter of law, the issue is beyond our review (see, Majauskas v Majauskas, supra, at p 494; Patron v Patron, 40 NY2d 582). Its decision to delete the award of expert fees, as a matter of law, was apparently based on the fact that the expert’s testimony was directed solely to the value of plaintiff’s license, evidence that was unnecessary in view of its determination that the license was not marital property. We have concluded that the license is marital property, however, and on remand the court may exercise its discretion to determine whether an award of expert fees is warranted and if so their proper amount (see, Litman v Litman, 61 NY2d 918, supra).

Accordingly, in view of our holding that plaintiff’s license to practice medicine is marital property, the order of the Appellate Division should be modified, with costs to defendant, by reinstating the judgment and the case remitted to the Appellate Division for determination of the facts, including the exercise of that court’s discretion (CPLR 5613), and, as so modified, affirmed. Question certified answered in the negative.

Meyer, J.

(concurring). I concur in Judge Simons’ opinion but write separately to point up for consideration by the Legislature the potential for unfairness involved in distributive awards based upon a license of a professional still in training.

An equity court normally has power to " 'change its decrees where there has been a change of circumstances’ ” (People v Scanlon, 11 NY2d 459, 462, on second appeal 13 NY2d 982). The implication of Domestic Relations Law § 236 (B) (9) (b), which deals with modification of an order or decree as to maintenance or child support, is, however, that a distributive award pursuant to section 236 (B) (5) (e), once made, is not subject to change. Yet a professional in training who is not finally committed to a career choice when the distributive award is made may be locked into a particular kind of practice simply because the monetary obligations imposed by the distributive award made on the basis of the trial judge’s conclusion (prophecy may be a better word) as to what the career choice will be leaves him or her no alternative.

The present case points up the problem. A medical license is but a step toward the practice ultimately engaged in by its holder, which follows after internship, residency and, for particular specialties, board certification. Here it is undisputed that plaintiff was in a residency for general surgery at the time of the trial, but had the previous year done a residency in internal medicine. Defendant’s expert based his opinion on the difference between the average income of a general surgeon and that of a college graduate of plaintiff’s age and life expectancy, which the trial judge utilized, impliedly finding that plaintiff would engage in a surgical practice despite plaintiff’s testimony that he was dissatisfied with the general surgery program he was in and was attempting to return to the internal medicine training he had been in the previous year. The trial judge had the right, of course, to discredit that testimony, but the point is that equitable distribution was not intended to permit a judge to make a career decision for a licensed spouse still in training. Yet the degree of speculation involved in the award made is emphasized by the testimony of the expert on which it was based. Asked whether his assumptions and calculations were in any way speculative, he replied: "Yes. They’re speculative to the extent of, will Dr. O’Brien practice medicine? Will Dr. O’Brien earn more or less than the average surgeon earns? Will Dr. O’Brien live to age sixty-five? Will Dr. O’Brien have a heart attack or will he be injured in an automobile accident? Will he be disabled? I mean, there is a degree of speculation. That speculative aspect is no more to be taken into account, cannot be taken into account, and it’s a question, again, Mr. Emanuelli, not for the expert but for the courts to decide. It’s not my function nor could it be.”

The equitable distribution provisions of the Domestic Relations Law were intended to provide flexibility so that equity could be done. But if the assumption as to career choice on which a distributive award payable over a number of years is based turns out not to be the fact (as, for example, should a general surgery trainee accidentally lose the use of his hand), it should be possible for the court to revise the distributive award to conform to the fact. And there will be no unfairness in so doing if either spouse can seek reconsideration, for the licensed spouse is more likely to seek reconsideration based on real, rather than imagined, cause if he or she knows that the nonlicensed spouse can seek not only reinstatement of the original award, but counsel fees in addition, should the purported circumstance on which a change is made turn out to have been feigned or to be illusory.

Titone, J.

(concurring). I join in the majority opinion by Judge Simons for the court, and, like Justice Jackson, forthrightly surrender my contrary views in Conner v Conner (97 AD2d 88, 105 [Titone, J. P., concurring]) to a more cogent position (McGrath v Kristensen, 340 US 162, 178 [Jackson, J., concurring]).

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur with Judge Simons; Judges Meyer and Titone concur in separate concurring opinions.

Order modified, with costs to defendant, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.

       The action was originally instituted by plaintiff husband and defendant wife asserted a counterclaim in her answer. Subsequently, the husband withdrew his complaint and reply to the counterclaim and the wife received an uncontested divorce.


source: Caselaw Access Project

license: Public Domain

text:
    Robert M. Costello, Respondent, v Oneida National Bank and Trust Company of Central New York, Appellant.
    Argued September 3, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      Thomas F. O’Donnell for appellant.

      Michael P. Ringwood for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (109 AD2d 1085).

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


text:
    Herman Fairbairn et al., as Parents and Natural Guardians of Alan Fairbairn, an Infant, Appellants, v State of New York, Respondent.
    (Claim No. 65848.)
    Argued September 5, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      Ellen Leary Coccoma for appellants.

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

Order affirmed, with costs. The finding of the Appellate Division, that no joint enterprise existed, more closely comports with the weight of the evidence than does the contrary finding of the Court of Claims.

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


text:
    In the Matter of Joseph F. Mahoney, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York and as Executive Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.
    Argued September 3, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      John J. Maguire and Richard Hartman for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Fred Kolikoffand Larry Sonnenshein of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. We agree with the Appellate Division that the addition of the word "forthwith” to the statutory provisions in question does not alter the rule of Matter of Pierne v Valentine (291 NY 333, 342) but, rather, only precludes an unnecessary or unwarranted delay which is not presented in this case.

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


text:
    David Goldstein, Respondent, v Frances Gold et al., Defendants, and Paul Adler, Appellant.
    Argued September 4, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      Matthew Dollinger and Dennis M. Gonski for appellant.

      Wilbur G. Silverman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice (now Judge) Vito J. Titone at the Appellate Division (106 AD2d 100), only insofar as the opinion holds that the intervening defendant, who purchased the property encumbered by the mortgage, is bound by a notice of pendency filed prior to the recording of his deed and the satisfaction of mortgage.

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


text:
    The People of the State of New York, Respondent, v Armando Pedraza, Appellant.
    Argued September 9, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      Jonathan H. Oberman and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Michael J. Eng and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. It is clear from this record that the sentencing court did consider "the nature and circumstances of the crime and * * * the history and character of the defendant” (Penal Law § 70.02 [2] [c] [i]), correctly including whether, in view of defendant’s physical condition, a sentence of imprisonment would be "unduly harsh”. Thus, it cannot be said that the court failed to exercise its discretion or abused that discretion as a matter of law.

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


text:
    In the Matter of Alice Cunningham, Appellant, v Edward V. Regan, as Comptroller of the State of New York, Respondent.
    Argued September 6, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      Geoffrey H. Lewis and Stephen P. Cunningham for appellant.

      Robert Abrams, Attorney-General (William J. Kogan, Robert Hermann and Peter H. Sc hiff oí counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the majority below that there is substantial evidence to support the Comptroller’s determination that petitioner was not "actually in service” at the time of the filing of her application for ordinary disability as was then required by Retirement and Social Security Law § 62. Petitioner was neither actually working nor on authorized leave when she filed her application on January 7,1981, and the determination of her grievance in April 1981 resulted in her service being deemed to have terminated on December 31,1980, the date on which her disability leave without pay was ended by her employer. Thus, the Comptroller, acting on petitioner’s application in June 1981, reasonably concluded that she did not meet the statutory requirement as of the date of her application.

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

Judgment affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Larry Williams, Appellant.
    Argued September 4, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      David R. Walton for appellant.

      Elizabeth Holtzman, District Attorney (Tracy W. Young and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant argues that his 1973 reformatory sentence could not serve as a predicate for a persistent felony offender sentence because Penal Law § 70.10 (1) (b) (i) defines a previous felony conviction as one for which "a sentence to a term of imprisonment in excess of one year * * * was imposed”, and Penal Law former § 75.00 (2) (which was not repealed until 1974) defined a reformatory sentence as "a sentence to imprisonment for a period of unspecified duration”. He points to the Staff Notes of the Temporary State Commission on Revision of the Penal Law and the Criminal Code, which states (p 285) with respect to the definition of persistent felony offender that, "The indefinite commitment for "mental defectives’ will no longer count [citation omitted], and the indefinite reformatory period — with no minimum or maximum term — will no longer be counted,” and the Practice Commentaries (McKinney’s Cons Laws of NY, Book 39, Penal Law § 70.10, p 222 [1975]), presumably based on the Commission Staff Notes, indicating that under the former Penal Law reformatory sentences counted where imposed for a felony but under the 1965 Revised Penal Law "reformatory sentences do not count.”

In People v Wright (35 NY2d 944, cert denied 423 US 856) we affirmed on the opinion by Justice Irwin D. Davidson at Trial Term. That opinion (69 Misc 2d 1050, 1051) stated with respect to the Practice Commentary (the Commission Staff Notes apparently were not cited to him) that: "The commentator’s authority to support that statement does not appear. It seems to be inconsistent with the provisions of the statute. While it is quite true that a prior felony conviction upon which a defendant was sentenced to probation or conditional or unconditional discharge would not meet all the prerequisites of a prior felony conviction outlined in section 70.10 insofar as this comment refers to a reformatory sentence imposed for a felony upon which the defendant served in excess of one year, it seems to be in direct conflict with the provisions of 70.10.” Defendant seeks to distinguish Wright on the basis that it involved a 1959 prior felony conviction, as to which, under Penal Law former § 2184-a as amended by Laws of 1956 (ch 839), a felon sentenced to the reformatory could be incarcerated for a period not to exceed five years, that Wright would have been on notice at the time of his later crime that his 1959 conviction could be employed as a predicate, and that, therefore, it was proper for the sentencing court in 1972 to use his 1959 reformatory sentence as a prior.

Accepting, arguendo, that Wright would have been on notice, we nevertheless find the distinction to be one without a difference. Former section 2184-a provided that, "The term of imprisonment of any person sentenced hereunder shall be known as a reformatory term, and shall be terminated by the board of parole in the executive department, but in the case of any person convicted of a felony or adjudicated a youthful offender for acts certified to be acts constituting a felony, such term shall not exceed five years”. The statute in force at the time of defendant’s 1973 sentence provided, as defendant notes, that a reformatory sentence "shall be a sentence to imprisonment for a period of unspecified duration”, but then continued: "which shall commence and terminate as provided in section 75.10 and the court shall not fix the minimum or maximum length of the period.” (Penal Law former § 75.00 [2].) Section 75.10 (1) entitled "Commencement and termination” read: "A reformatory period commences when the young adult is received in an institution under the jurisdiction of the state department of correction and terminates upon the first to occur of (a) discharge of the person by the state board of parole, or (b) service by the person of four years from the date the period commenced less any amount of time credited against the sentence pursuant to the provisions of subdivisions three, four and five of this section.” Thus, under the post-1965 statute as well as under the pre-1965 statute, one sentenced to a reformatory term served a fixed number of years "in excess of one year” unless sooner discharged by the Parole Board. That the term was fixed by the Legislature rather than the court has no bearing on whether it exceeds one year, nor does the use in former section 75.00 of the phrase "unspecified duration” alter the situation in light of the words, quoted above, immediately following that phrase.

It is the language of the statute itself, rather than statements in the Reviser’s Notes or in a Practice Commentary, which governs its construction (Matter of Lorie C., 49 NY2d 161, 169; see, Anderson v Regan, 53 NY2d 356; McKinney’s Cons Laws of NY, Book 1, Statutes § 125 [b]). We agree with Justice Davidson’s construction of Penal Law § 70.10 as to a pre-1965 reformatory sentence and find it equally applicable to a post-1965 reformatory sentence.

We have reviewed the Trial Judge’s identification charge and find it sufficiently detailed to meet the requirements of People v Whalen (59 NY2d 273).

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

Order affirmed in a memorandum.


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    The People of the State of New York, Appellant-Respondent, v Kenneth Loughlin, Respondent-Appellant.
    Submitted September 6, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney {Diane E. Selker and Anthony J. Servino of counsel), for appellant-respondent.

      James M. Rose and Natasha Rose for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing so much thereof as reversed on the law defendant’s conviction of criminal possession of a forged instrument in the second degree, vacated the sentence and dismissed the indictment as to that count, and by remitting the matter to that court for consideration of the facts and, as so modified, is affirmed.

There is here, like the situation in People v Johnson (65 NY2d 556), but unlike the situation in People v Green (53 NY2d 651), evidence sufficient to support a finding that defendant knew when he presented the check for cashing that it was forged. When reviewing the sufficiency of the evidence to sustain a guilty verdict, we are obliged to do so in the light most favorable to the People, bearing in mind that credibility is a matter to be determined by the trier of the facts (People v Malizia, 62 NY2d 755, 757).

There was evidence that when defendant asked John Scivoletto to cash the $377 check made out to Richard Moschiano he told Scivoletto that the payee was on vacation and had given him the check to cash, and offered to accept $300 for the check if Scivoletto would cash it. Because defendant could not have cashed the check for Moschiano unless it bore the latter’s indorsement, the trier of fact could infer from that testimony that defendant then knew that the check was indorsed with the payee’s name, even though Scivoletto did not look at the back of the check. From defendant’s statement that Moschiano had given him the check and Moschiano’s testimony that he had neither indorsed nor authorized indorsement of the check, it could also be inferred that defendant was aware when he offered the check to Scivoletto for cashing that it bore a forged indorsement. Nor did defendant’s trial testimony that he received the check from a person known only to him as Blackie, although it contradicted Scivoletto, affect the sufficiency of the evidence, for it simply created a credibility issue.

The inference of knowledge thus arising was bolstered by testimony of Donna Brown that within a short period of time after his conversation with Scivoletto, defendant sought to cash the check at a nearby diner at an even greater discount and at a bar across the street from the diner and, then, being unsuccessful in those attempts, threw the check into a garbage receptacle from which it was retrieved, a short time later, bearing indorsement of the payee’s name. That defendant denied attempting to cash the check in the diner and bar and placing it in a garbage can, again, simply creates an issue of credibility. And while standing alone these later incidents may have been equally as consistent with the inference that defendant knew the check was stolen as with knowledge on his part that the indorsement was forged, the trier of fact could properly conclude that they bolstered the inference of knowledge of forgery arising from Scivoletto’s and Moschiano’s testimony detailed above.

On the cross appeal there should be an affirmance. The modification by the Appellate Division is adverse to defendant only insofar as it failed to reverse his conviction for criminal possession of a stolen instrument (CPL 450.90 [1]), but the issue sought to be raised by the cross appeal (whether defendant was properly sentenced as a second felony offender on the count for criminal possession of a forged instrument now being reinstated) is within our power of review (CPL 470.35 [2] [b]). On that issue defendant argues that he was improperly sentenced as a second felony offender, but he was adjudicated a second felony offender in 1978 with respect to a prior crime and failed to seek review of that adjudication by direct appeal or appropriate postjudgment motion. The question is, therefore, no longer open (CPL 400.21 [8]; People v Morcillo, 91 AD2d 1074).

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

Order modified and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


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    Richard E. Oelsner, as Administrator of the Estate of Catherine Oelsner, Deceased, Respondent, v State of New York, Appellant.
    (Claim No. 61444.)
    Argued September 4, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Vernon Stuart, Robert Hermann and Peter H. Schiff of counsel), for appellant.

      Arnold Davis for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the Court of Claims judgment dismissing the claim reinstated.

In this action for damages for wrongful death of claimant’s intestate due to the alleged malpractice of a physician employed by defendant (the State), the dispute centers on whether the physician’s misdiagnosis was a matter of professional judgment within the range of accepted medical standards, for which the State cannot be held liable, or malpractice. After trial on the issue of liability, the Court of Claims found that the misdiagnosis resulted from an error in professional judgment and dismissed the claim. The Appellate Division unanimously reversed, concluding that the determination was against the credible weight of the evidence, which in its view demonstrated that the physician did not conduct a careful examination and investigation of decedent’s condition, and judgment was awarded for claimant.

Where the Appellate Division reverses the findings of fact made by the trial court and makes new findings, our role is to determine which court’s findings are in accord with the weight of the evidence (see, CPLR 5501 [b]; Weiss v Karch, 62 NY2d 849, 850). We conclude that the findings of the trial court more nearly comport with the weight of the evidence.

The State physician, after a complete physical examination, concluded that decedent had "acute gastroenteritis”; the autopsy, however, established that decedent’s death, hours after the examination, resulted from salicylate poisoning. Claimant’s medical expert testified that the State physician had departed from accepted standards of medical practice in failing to make a differential diagnosis, and in failing to promptly investigate the cause of decedent’s problems and treat them. In large part the issue centered on the significance of certain symptoms, including a large amount of acetone in decedent’s urine. The State physician testified that he ascribed the high acetone level to decedent’s fasting or a failure to absorb food; claimant, urging that good medical practice required an immediate response to the acetone, pointed out that the assumption that decedent had been fasting was mere speculation, and in any event would not have accounted for the high acetone level.

We agree with the trial court that the conflicting testimony concerning the significance of certain symptoms does not establish a basis for liability here, particularly in light of the evidence that the State physician competently examined decedent, that there was no information from the patient or record of aspirin ingestion, that decedent’s symptoms did not specifically point to salicylate poisoning or the need to order tests on an emergency basis, and that symptoms often associated with salicylate poisoning were not present. While the Appellate Division placed great reliance on the opinions expressed by claimant’s medical expert, we note the observation of the trial court — having heard his testimony — that his lack of information and memory in certain instances was "of some concern to the Court in reviewing the totality of his testimony,” and we further note that while the State physician, in explaining the high acetone level, may have had no basis for his remarks about fasting, his diagnosis rested additionally on decedent’s other symptoms.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.


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    In the Matter of Jose D., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued September 3, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      Arnold S. Cohen, Lenore Gittis and Caesar D. Cirigliano for appellant.

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

Memorandum.

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

Appellant, who has been adjudicated a juvenile delinquent, complains that his attorney was not permitted to be present at the diagnostic mental study conducted subsequent to the fact-finding hearing and prior to the dispositional hearing (Family Ct Act § 351.1 [1]). The Appellate Division unanimously affirmed without opinion and he appeals, purportedly as of right, contending that he had a constitutional right to counsel’s presence and that the failure to administer Miranda warnings at the court-ordered examination violated his 5th Amendment right against self-incrimination. We affirm.

When a diagnostic study is conducted, the juvenile has already been found to have committed an act which, if committed by an adult, would constitute a crime. The juvenile thus stands in a very different position from the petitioner in Matter of Lee v County Ct. (27 NY2d 432, 444, cert denied 404 US 823), which held that a pretrial sanity examination was a "critical stage” of the prosecution at which a criminal defendant had a 6th Amendment right to the presence of counsel. More analogous is the sentencing stage of an adult criminal proceeding (see, Matter of Nathan N., 56 AD2d 554), at which the "full panoply of constitutional rights” do not apply (People v Perry, 36 NY2d 114, 119; Matter of Steven E. H., 124 Misc 2d 385). The governing constitutional standard in adult pre-sentence proceedings is fundamental fairness which is satisfied when "the defendant has been afforded an opportunity to refute those aggravating factors which may have negatively influenced the court” (People v Perry, supra, p 119). The same standard should apply in juvenile proceedings (cf. McKeiver v Pennsylvania, 403 US 528, 543; In re Gault, 387 US 1, 30; People v Ronald W., 24 NY2d 732).

In our view, pre-hearing disclosure of the mental health examiner’s report (Family Ct Act § 351.1 [4]), coupled with the right to cross-examine and submit a counter psychiatric study or other evidence (Family Ct Act § 350.4 [4]) amply satisfies the constitutional requisite (Matter of Steven E. H., supra; cf. Schall v Martin, 467 US 253; Tippett v State of Maryland, 436 F2d 1153, 1158, cert dismissed sub nom. Murel v Baltimore City Criminal Ct., 407 US 355).

Insofar as appellant relies upon Estelle v Smith (451 US 454), a decision involving a capital sentencing examination, to support his thesis that receipt of testimony concerning the mental health examination violated his 5th Amendment right against self-incrimination because he did not receive Miranda-type warnings prior to the examination, we note that Estelle has been limited to its unique facts and has been distinguished in subsequent noncapital cases (e.g., Baumann v United States, 692 F2d 565; Matter of Steven E. H., supra). In fact, the Supreme Court expressly observed that "we do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination” (Estelle v Smith, supra, p 469, n 13). Appellant was not entitled to Miranda admonitions (cf. People v Ronald W., 24 NY2d 732, supra).

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

Order affirmed, without costs, in a memorandum.


text:
    Jeanette Filby, Formerly Known as Jeanette Doerler, Respondent, v Russell E. Brooks et al., Appellants.
    Argued September 3, 1985;
    decided October 8, 1985

      APPEARANCES OF COUNSEL

      William H. Roth for appellants.

      Edgar Hills for respondent.
   OPINION OF THE COURT

Memorandum.

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

This dispute among neighbors concerns an easement contained in plaintiff’s deed, which gives her a right of ingress and egress over Flower Hill Road. Plaintiff seeks an injunction requiring defendants to remove a barrier from its new location on Flower Hill Road and restore it to its original location on Flower Hill Road. Whatever rights defendants may have acquired to the easement by adverse possession, based on the long-continued existence of a barrier at one location on Flower Hill Road (see, Brand v Prince, 35 NY2d 634, 636; Belotti v Bickhardt, 228 NY 296, 302), defendants obtained no right to move that barrier to a new location on Flower Hill Road so as to further restrict plaintiff’s use of the road, a move which was promptly objected to by plaintiff. While defendants contend that removal of the barrier they placed at the new location would require entry onto the property of a nonparty, plaintiff’s property interest in ingress and egress permits removal of the barrier on the road. We therefore affirm the order of the Appellate Division directing removal of the barrier from its new location, and reach no other issue.

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

Order affirmed, with costs, in a memorandum.


text:
    County of Westchester, Respondent, v Welton Becket Associates et al., Respondents, et al., Defendants. (And Third- and Fourth-Party Actions.) (Action No. 1.) J. R. Stevenson Corp., Appellant, v County of Westchester, Respondent, et al., Defendants. (And Third-, Fourth- and Fifth-Party Actions.) Welton Becket Associates et al., Sixth-Party Respondents, v Home Indemnity Company, Sixth-Party Appellant. (Action No. 2.) (And Two Other Actions.)
    Argued September 12, 1985;
    decided October 10, 1985

      APPEARANCES OF COUNSEL

      Kalvin Kamien, Julius L. Schapira and David A. Trager for J. R Stevenson Corp. and others, appellants.

      Harold H Wolgel and Michael H. Goldstein for Home Indemnity Company, appellant.

      Robert N. Fass, John R. Casolaro, James Gadsden and Jack Kaplan for Welton Becket Associates and others, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice William C. Thompson at the Appellate Division (102 AD2d 34). Question certified answered in the affirmative.

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


text:
    Bernice Friedman, Appellant, v M. Arisan Ergin, Respondent.
    Decided October 10, 1985

      APPEARANCES OF COUNSEL

      Russell C. Friedman for appellant.

      Ricki E. Roer for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (110 AD2d 620).

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


text:
    In the Matter of Richard Fitzpatrick, as President of the Deputy Sheriffs Benevolent Association of Broome County, Local 2012, Council 82, American Federation of State, County and Municipal Employees, on Behalf of Garry R. Thompson, Appellant, v Anthony Ruffo, as Sheriff of Broome County, et al., Respondents.
    Decided October 10, 1985

      APPEARANCES OF COUNSEL

      Christopher H. Gardner for appellant.

      JohnE. Murray, County Attorney {Alfred Paniccia, Jr., of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (110 AD2d 1032).

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


text:
    Stuart D. Baker, Appellant, v Elisabeth K. Baker, Respondent.
    Argued September 12, 1985;
    decided October 10, 1985

      APPEARANCES OF COUNSEL

      KathieAnn Whipple and Richard J. Ney for appellant.

      Thomas E. Tyre for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the application pursuant to Domestic Relations Law § 244 for a judgment for arrears in alimony should be dismissed.

Domestic Relations Law § 244 provides that upon "default in paying any sum of money as required by the judgment or order directing payment thereof, the court shall make an order directing the entry of judgment for the amount of such arrears”. Here, in the language of the approved forms for matrimonial judgments set forth in the Second Department rule (22 NYCRR 699.9 [b] [1] [J13]), the judgment referred to the separation agreement entered into by the parties, and retained jurisdiction for the purpose of specifically enforcing the agreement or of "making such further decree with respect to alimony * * * as it finds appropriate under the circumstances existing at the time application for that purpose is made to it”. As is stated in 22 NYCRR 699.9 (f) (4), however, "when paragraph J13 alone is used * * * there [is] no mandate by the court that the agreement or stipulation be carried out by the parties.” It follows that there is in the divorce judgment which is the predicate for defendant’s Domestic Relations Law § 244 application no requirement directing that any sum of money be paid, and, therefore, no basis, short of an action by defendant on the agreement itself, upon which judgment for arrears can be entered (Jaslow v Jaslow, 75 AD2d 876, 877-878; see, Vigo v Vigo, 97 AD2d 463, 464; Lewin v Lewin, 91 AD2d 649, 650-651). Zipparo v Zipparo (70 AD2d 616), relied upon by the Appellate Division, is not to the contrary for there the separation agreement was incorporated by reference in the divorce judgment.

The situation is not changed by the provision of the separation agreement that upon the husband’s default the wife "shall be entitled to a court order or orders directing the Husband to comply with such obligations thereafter coming due, to specific performance of such obligations and to the same remedies provided by statute for the enforcement of such obligations as if such obligations had been determined by order of a court.” Only if the Legislature amended section 244 to include the "as if’ concept with which that contract provision concludes would enforcement of the separation agreement be brought within the section’s requirement that there be a judgment or. order directing payment.

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

Order reversed, with costs, and the application for judgment for arrears in alimony dismissed in a memorandum.


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    In the Matter of James Roberts, Appellant, v Community School Board of Community District No. 6 et al., Respondents.
    Decided October 10, 1985

      APPEARANCES OF COUNSEL

      Eugene M. Kaufman for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Elizabeth S. Natrella of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

By this article 78 proceeding petitioner seeks to enforce claimed statutory and contractual rights to tenure. Special Term properly dismissed so much of the proceeding as sought a direction that petitioner had acquired tenure as a junior high school principal. Petitioner has tenure as a teacher in Community School District No. 6. In October 1975, he was, however, appointed to central administration as Deputy Superintendent in charge of curriculum and instruction. Effective December 14, 1977, he was assigned as acting junior high school principal in charge of curriculum and instruction, the minutes noting, however, that functionally he would continue to serve as Deputy Superintendent.

After petitioner passed the examination for junior high school principal, he was, by resolution of May 22, 1979, appointed "as Junior High School Principal (assigned as Deputy Superintendent in charge of Curriculum and Instruction) effective May 1, 1979.” On May 21, 1981, petitioner was appointed contracted Deputy Superintendent by a resolution of the Board, the minutes noting that he would achieve tenure as a junior high school principal on May 1, 1982. On November 12, 1981, he was appointed Acting Community Superintendent to serve until the Board elected a contracted Community Superintendent. During all of the time from October 3, 1975 until he became Acting Community Superintendent, petitioner served as Deputy Superintendent in charge of curriculum and instruction.

On June 30,1982, the day before the new Community Superintendent took office, petitioner and respondent Board entered into a contract referring to the May 21,1981 resolution and providing that petitioner was to serve as Deputy Community Superintendent for two more years and that the time he had served as Acting Community Superintendent would not be subtracted from time to be credited toward completion of petitioner’s probation as a junior high school principal. Notwithstanding that contract, the new Community Superintendent removed petitioner from his central administration position, assigned him to serve as a junior high school principal, effective September 1, 1982, and because petitioner had never served as a principal, requested that he agree to a one-year extension of his probationary period so that she could evaluate his performance in that position. Petitioner having refused to agree to the extension, he was informed by letter from the Superintendent on November 30,1982, that he would not be granted tenure. On December 9,1982, the Community School Board voted to deny petitioner tenure as a principal.

Although petitioner served as a junior high school principal only during the period between September 1, 1982 and November 30, 1982, he claims tenure by estoppel by reason of (1) the year and five months between December 14, 1977 and May 1, 1979 during which he held the title of "acting” principal, and (2) the greater than three-year period between May 1, 1979 and June 30, 1982 during which he held appointment as junior high school principal, although serving as Deputy Community Superintendent or Acting Community Superintendent.

As to the first period, what petitioner seeks is application to his situation of so-called "Jarema” credit under Education Law § 2573 (1) (a), which requires that service as a regular substitute teacher of a given subject prior to appointment as a teacher of that subject be counted as part of the three-year probationary period required for a teacher to obtain tenure. By its terms, however, that provision addresses only teacher tenure. The analogous statute dealing with supervisory tenure (Education Law § 2573 [1] [b]) contains no parallel provision. From the inclusion of the requirement as to teachers and its omission as to supervisory personnel there arises an irrefutable inference that the Legislature did not intend such a requirement to apply to the latter (Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340, 345; McKinney’s Cons Laws of NY, Book 1, Statutes § 240), as, indeed, the New York City Board of Education recognized in its Special Circular No. 64. Matter of Taylor v Berberian (61 NY2d 613, affg 96 AD2d 797), relied upon by petitioner, is not to the contrary. Although the Appellate Division noted in that case that Ms. Taylor had been granted "Jarema” credit for her service as acting principal, that fact bore no relation to the question ultimately decided, which was that termination at the end of her three-year probationary period was a function of the Superintendent rather than the Community School Board. Petitioner’s service while he held the title of acting principal may not be counted as part of his probationary period, therefore.

Petitioner’s service as Deputy Community Superintendent and Acting Community Superintendent after May 1,1979 stands him in no better stead. To the extent that he relies upon the notation in the May 21,1981 resolution appointing him Deputy Community Superintendent that he would achieve tenure as a junior high school principal on May 1,1982, it is sufficient to note that although on the recommendation of its Superintendent a school board may grant tenure before expiration of the probationary period (Matter of Weinbrown v Board of Educ., 28 NY2d 474), petitioner points to no such recommendation of the Community Superintendent as a predicate for the May 21,1981 resolution. In cities having a population of 400,000 or more, the authority to grant tenure to a principal lies exclusively in the Superintendent (Matter of Taylor v Berberian, 61 NY2d 613, supra; Matter of Carabello v Community School Bd. Dist. 3, 49 NY2d 488). Indeed, the Community School Board itself seems to have so recognized by its December 9,1982 resolution denying petitioner tenure. The May 21, 1981 resolution simply has no bearing on whether petitioner acquired tenure.

Petitioner’s tenure by estoppel argument reduces, therefore, to the claim that his out-of-title service after May 1,1979 must be credited and that Special Term erred in basing its holding of waiver upon Matter of Frey (12 Ed Dept Rep 299), because petitioner had not been appointed to a contractual position, as had Frey, and was, rather, simply serving temporarily out of title. The argument appears inconsistent with the May 21,1981 resolution appointing petitioner a contracted Deputy Superintendent and reciting that he was entitled to a contract pursuant to a Board resolution of two years before that date but, in our view, determination of this appeal turns not on waiver but on the purpose and intent behind the statutory provisions governing tenure. The purpose of the probationary period required by section 2573 is, as subdivision 5 of that section makes evident, to permit the Superintendent to ascertain whether the probationer is "competent, efficient and satisfactory” for permanent appointment. To hold petitioner entitled to tenure in the field position of junior high school principal when all but a few months of his claimed probationary service has been in central administration runs contrary to that legislative purpose, whether the out-of-title service was contractual or not (cf. Morley v Arricale, 66 NY2d 665). Our holding in Ricca v Board of Educ. (47 NY2d 385, 394) that "the decision of a probationary teacher to accept a temporary assignment out of position in order to accommodate the needs of the school district does not serve to disrupt that teacher’s probationary period, nor may it lead to an increase in the length of that probationary period” is not to the contrary. Ricca involved a teacher appointed pursuant to the special procedures provided in Education Law § 2569-a for the licensing of experienced substitutes who meet certain qualifications (47 NY2d, at p 389, n 1). As such, he was not entitled to "Jarema” credit as he would have been had he been appointed under Education Law § 2509 (1) (a), the provisions of which parallel those of section 2573 (1) (a). But the same differentiation between teachers and supervisory personnel that forecloses "Jarema” credit for petitioner’s pre-May 1, 1979 services, and that warrants validation of experience through observation in the supervisory position for which tenure is sought (see, Education Law § 2573 [5]; Morley v Arricale, supra), requires the conclusion that petitioner’s post-May 1, 1979 service does not entitle him to tenure by estoppel.

Finally, we note that that part of the petition which seeks to require respondent Community School Board to comply with the terms and conditions of the contract of June 30, 1982 between petitioner and the Board was also properly dismissed. Petitioner failed to exhaust the administrative remedy provided by the Rules and Regulations Governing Grievances Against Community School Boards or Members.

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

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

      . Education Law § 2573 (1) (a) provides in relevant part: "Teachers and all other members of the teaching staff, authorized by section twenty-five hundred fifty-four of this article, shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years or as a seasonally licensed per session teacher of swimming in day schools who has served in that capacity for a period of two years and has been appointed to teach the same subject in day schools on an annual salary, the probationary period shall be limited to one year”.

      . Although the circular was not before Special Term, it was promulgated by the Chancellor and has the force of a rule or regulation (Matter of Lehman v Board of Educ., 82 AD2d 832, 833). Of such a regulation we may take judicial notice without request (CPLR 4511 [b]).


text:
    Bay Ridge Community Council, Inc., et al., Plaintiffs, v Hugh L. Carey, as Governor of the State of New York, et al., Respondents. (Action No. 1.) In the Matter of Bernard J. Le Blanc, Petitioner. (Action No. 2.) In the Matter of Robert P. Whelan, Appellant. (Action No. 3.) Clarence P. Rappleyea, Intervenor-Appellant.
    Argued September 11, 1985;
    decided October 10, 1985

      APPEARANCES OF COUNSEL

      Dennis C. McMahon for appellant.

      Richard S. Scolaro for Clarence P. Rappleyea, intervenor-oppellant.

      Robert Abrams, Attorney-General (Richard G. Liskov and Robert Hermann of counsel), respondent pro se, and for Hugh L. Carey and others, respondents.

      C. Daniel Chill, Kenneth Shapiro and Theodore Dickson for Stanley Fink and another, respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the Per Curiam opinion at the Appellate Division (103 AD2d 280).

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


text:
    The People of the State of New York, Appellant, v Gail Williams, Respondent.
    Argued September 9, 1985;
    decided October 10, 1985
    APPEARANCES OF COUNSEL

      James T. Hayden, District Attorney (James G. Levins, III, of counsel), for appellant.

      Joseph J. Balok, Jr., Public Defender (Kevin Moshier of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court of Chemung County should be affirmed.

Defendant was apprehended in the driveway of a parking lot which was between two buildings of a 12-building apartment complex and charged with driving while intoxicated. The two buildings contain 14 apartments and the parking lot has 14 spaces, one space being reserved for each tenant of the two buildings. A sign at the entrance to the lot restricts use of the spaces to tenants. The business office for the apartment complex is in one of the other buildings and there are no stores or business establishments in either of the two buildings serviced by the lot.

Defendant’s motion to dismiss the. information was denied by the Recorder’s Court. She pleaded guilty and appealed to the County Court, which reversed, holding that Vehicle and Traffic Law § 1192 did not apply to the parking lot, and dismissed the information.

Former subdivision 7 of Vehicle and Traffic Law § 1192 (now Vehicle and Traffic Law § 129-b) defines "parking lot” as an area of "private property near or contiguous to and provided in connection with premises having one or more stores or business establishments, and used by the public as a means of access to and egress from such stores and business establishments and for the parking of motor vehicles of customers and patrons of such stores and business establishments.” The parking lot in question was restricted to use by tenants of the two buildings and could not be considered to have been used "by the public”, even if we accepted the People’s highly technical characterization of apartments as business establishments of the landlord rather than the residences of the tenants, which in fact they were. Nothing in the legislative history of the Laws of 1982 (ch 487), which enacted former section 1192 (7), suggests a contrary legislative intent. Indeed, the specific reference in Vehicle and Traffic Law § 1660-a to "the parking area and private streets or roadways of a private apartment house complex” shows that when the Legislature intended to include such areas it knew how to do so. The information was properly dismissed (see, People v Kenyon, 85 AD2d 916; cf. People v Farmer, 44 NY2d 681; People v Taylor, 202 Misc 265; Ann., 29 ALR3d 938).

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

Order affirmed in a memorandum.


text:
    Edith Salm, Appellant, v Edward A. Sammito, Respondent, et al., Defendants.
    Decided October 10, 1985

      APPEARANCES OF COUNSEL

      Abraham A. Salm for appellant.

      William A. Meltzer for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (111 AD2d 844).

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


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    The People of the State of New York, Respondent, v Patrick Alan Shaffer, Appellant.
    Argued September 12, 1985;
    decided October 10, 1985

      APPEARANCES OF COUNSEL

      Michael B. Powers for appellant.

      James T. Hayden, District Attorney (Weeden A. Wetmore of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reducing the convictions for attempted aggravated assault upon a peace officer, burglary in the first degree and criminal use of a firearm in the first degree to attempted assault in the second degree, burglary in the second degree and criminal possession of a weapon in the fourth degree, and by remitting the case to Che-mung County Court for resentencing and, as so modified, affirmed.

The People failed to establish that the gun found at the scene was a "deadly weapon” (Penal Law § 10.00 [12]) — that is, both operable and loaded with live ammunition — a necessary element for attempted aggravated assault upon a peace officer (Penal Law § 110.00; and former § 120.11), burglary in the first degree (Penal Law § 140.30 [1]) and criminal use of a firearm in the first degree (Penal Law § 265.09 [1]), the crimes of which defendant was convicted. None of the four bullets found in the gun was test-fired to establish that it was live. Neither police officer who examined the gun and ammunition, testifying for the People, conducted tests to determine whether the ammunition itself was live, or explained why the ammunition was not or could not have been test-fired. That defendant may have before the burglary fired one round does not itself establish that the four remaining bullets in the gun were live, particularly where his attempt to fire again immediately failed, and where the gun failed to fire four times when directed at his intended victim. In this context, an inference that the ammunition was live, either (a) because the four remaining bullets had firing pin markings like the single spent casing and other bullets fired from the gun by the police witnesses, or (b) because defendant told his companion he would have shot the policeman if the gun had not misfired, would be wholly speculative and cannot satisfy the requirement of proof of a "deadly weapon” beyond a reasonable doubt.

Defendant cannot, however, succeed in his contention, first raised on appeal, that the conviction for attempted aggravated assault upon a peace officer must be set aside because the evidence established only that he fired at a police officer. (See, Penal Law § 120.11, subsequently enacted, which includes both peace officers and police officers.) The indictment charged attempted murder, and defendant himself requested, and received the benefit of, the charge on attempted aggravated assault upon a peace officer. Thus, although this case may be distinguished from People v Ford (62 NY2d 275), where the evidence was legally sufficient to support an alternative conviction, defendant on the facts before us "ought not be allowed to take the benefit of the favorable charge and complain about it on appeal.” (People v Legacy, 4 AD2d 453, 455 [Bergan, J.].)

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

Order modified and case remitted to Chemung County Court for resentencing in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Ira Morley, Appellant, v Frank C. Arricale, II, as Community Superintendent of Community School District No. 19, et al., Respondents.
    Argued September 6, 1985;
    decided October 10, 1985

      APPEARANCES OF COUNSEL

      Thomas M. Kennedy and ira Cure for appellant.

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

Memorandum.

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

We agree with the Appellate Division that determinations as to the qualifications of candidates for pedagogical positions are within the purview of the Board of Education (see, Matter of Council of Supervisory Assns. v Board of Educ., 56 Misc 2d 32, 37-38, affd 31 AD2d 34, revd on other grounds 23 NY2d 458). Absent a showing that the Board acted arbitrarily or capriciously, the court may not substitute its own judgment for the Board’s on matters entrusted by law to the Board’s own specialized knowledge and judgment (Matter of Antell v Board of Educ., 21 Misc 2d 119, 125, affd 10 AD2d 699).

Petitioner has not made any showing that the Board action was arbitrary or capricious. Petitioner failed to produce the requisite "contemporaneous documentation” to validate his administrative assistant time as supervisory experience. The Board therefore found that petitioner lacked the requisite two years of supervisory experience, and therefore acted in compliance with applicable Chancellor’s Regulation C-261 and regulatory Special Circular 30-R. There is a reasonable basis for requiring the supervisory documentation be contemporaneous, in that the review process is made more objective and fair. Further, the competitive selection procedure leading to assignment or appointment of a principal under Special Circular 30-R cannot be subverted without violating NY Constitution, article V, § 6.

Estoppel is not available against a local government unit for the purpose of ratifying an administrative error (the actions of the Community School Board and its Superintendent in appointing petitioner as principal) made without compliance with formally adopted selection standards and procedures (see, Matter of Bloomberg-Dubin v Board of Educ., 82 AD2d 854, 856, affd 56 NY2d 555).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Lewis Tree Service, Inc., Appellant, v Fire Department of the City of New York et al., Respondents.
    Argued September 10, 1985;
    decided October 10, 1985

      APPEARANCES OF COUNSEL

      Richard N. Chapman and Brian P. O’Connor for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Dana Robbins and Larry Sonnenshein of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by converting this proceeding into a declaratory judgment action, and declaring that petitioner is not debarred from bidding on State or municipal contracts.

Petitioner, Lewis Tree Service, Inc., brought this article 78 proceeding seeking to annul a determination of the New York City Fire Department awarding a contract for the trimming of trees to another bidder and to direct that it be awarded the contract. Although petitioner appears to have been the lowest bidder, the Fire Department declined to award it the contract because of a previous determination by the Comptroller that it had violated the provisions of Labor Law § 231(2) in that it had failed to pay some 15 exterminators the prevailing wage and benefits under two tree-spraying contracts it had with the New York City Housing Authority.

The Comptroller’s determination, made in accordance with the authority vested in him by Labor Law § 230 (8), § 235 and Public Housing Law § 152, was never challenged in an article 78 proceeding, and, under settled principles, cannot be collaterally attacked in this proceeding (2 Am Jur 2d, Administrative Law, §§ 491, 493; cf. Lacks v Lacks, 41 NY2d 71). No debarment from further bidding resulted by virtue of Labor Law § 235 (7), however, because the Comptroller made but a single determination (see, Matter of Dadson Plumbing Corp. v Goldin, 66 NY2d 718).

Although it was thus error for the Fire Department to disqualify petitioner from bidding, as petitioner concedes, the contract sought to be annulled has been let and completed. Consequently, the relief sought in this proceeding cannot now be granted. Accordingly, we convert the proceeding to a declaratory judgment action and make a declaration in its favor (CPLR 103 [c]). We reject the suggestion in petitioner’s brief that it be awarded money damages because of the prejudice to the City and the lack of compliance with the provisions of Administrative Code of the City of New York § 394a-1.0.

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

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


text:
    State of New York, Respondent, v Home Indemnity Company, Appellant.
    Decided October 10, 1985

      APPEARANCES OF COUNSEL

      Donald E. Deegan and Marian C. Rice for appellant.

      Robert Abrams, Attorney-General (.Richard J. Dorsey and Robert Hermann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

This dispute centers on a liability insurance policy issued by defendant and naming as the insureds: ”1) Jones Beach State Parkway Authority [and] 2) The People of the State of New York as interests may appear.” It arises out of a highway accident on January 3,1974 when a vehicle driven by Richard Lattanzi skidded on the ice on Long Island’s Southern State Parkway, veered off the road and hit a wooden guardrail which splintered causing him severe injuries. Lattanzi and his wife then commenced an action in the Court of Claims (see, Lattanzi v State of New York, 74 AD2d 378, affd 53 NY2d 1045; Littanzi [sic] v State of New York, 54 AD2d 1043), and named as defendants the State of New York, the Long Island State Park and Recreation Commission (Commission) and the Department of Transportation (Department). The Jones Beach State Parkway Authority (Authority), the first-named insured on the policy, was not a defendant in the Court of Claims action. The insurer defended the State, the Commission and the Department in the Court of Claims action, but refused to indemnify the State when the Lattanzis obtained a money judgment against it for the actions of the Commission and the Department in the design, testing and construction of the guardrail system. Subsequently, the State brought the present action demanding indemnification pursuant to the liability policy issued by defendant.

In a single order, Supreme Court granted defendant’s motion for a change of venue and denied the State’s cross motion for summary judgment. The Appellate Division reversed, with one justice dissenting, and granted the State summary judgment as to its right to indemnification under the insurance contract. Defendant now appeals, contending that the term naming as insureds the "1) Jones Beach State Parkway Authority [and] 2) The People of the State of New York as interests may appear” is ambiguous and requires that extrinsic evidence be examined to ascertain the intent of the parties to the contract, thus precluding a grant of summary judgment. We affirm.

Generally, the courts bear the responsibility of determining the rights or obligations of parties under insurance contracts based on the specific language of the policies (Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172; see also, Newin Corp. v Hartford Acc. & Indem. Co., 62 NY2d 916, 919). If, however, the language in the insurance contract is ambiguous and susceptible of two reasonable interpretations, the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact (Fagnani v American Home Assur. Co., 64 NY2d 967, revg on dissent at App Div 101 AD2d 803). On the other hand, if the tendered extrinsic evidence is itself conclusory and will not resolve the equivocality of the language of the contract, the issue remains a question of law for the court (Hartford Acc. & Indem. Co. v Wesolowski, supra). Under those circumstances, the ambiguity must be resolved against the insurer which drafted the contract (Breed v Insurance Co. of N. Am., 46 NY2d 351, 353; Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361).

In the present case, it is unclear from the face of the insurance contract itself whether the parties intended the policy to cover the State only insofar as liability was imposed upon it due to the acts or omissions of the Authority, as defendant contends, or whether the State was to be covered for liability imposed upon it for the acts or omissions of any of its agencies or subdivisions with respect to the Jones Beach State Parkway System. Although defendant offered the affidavit of Willis McCullagh, the company officer who supervised the negotiation of the contract, as extrinsic evidence to cure this ambiguity, the affidavit stated no more than that the phrase "as interests may appear” was a term of art. Because it contained nothing to establish that the limitation claimed to result from that term of art had been brought to the attention of those who negotiated on behalf of the Authority for issuance of the policy, the affidavit did not supply the evidentiary facts needed to present an issue for the jury (see, Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290; cf. Fagnani v American Home Assur. Co., supra). Thus, because there are no questions of credibility and no inferences to be drawn from extrinsic evidence, the interpretation of the insurance policy is an issue of law which can be decided by this court on appellate review (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., supra, at p 291; Hartford Acc. & Indem. Co. v Wesolowski, supra).

In this case, it is not unreasonable to read the ambiguous phrase, naming "The People of the State of New York as interests may appear” as insureds under the policy, as a clause extending coverage to the Long Island State Park and Recreation Commission and the Department of Transportation for their acts or omissions with respect to the Jones Beach State Parkway Authority. Accordingly, inasmuch as the ambiguity must be resolved against the defendant insurer which drafted the contract (Breed v Insurance Co. of N. Am., supra; Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., supra), the Appellate Division order should be affirmed.

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

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


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    The People of the State of New York, Appellant, v Lester Scarbrough, Respondent.
    Argued September 12, 1985;
    decided October 10, 1985

      APPEARANCES OF COUNSEL

      Peter L. Broderick, District Attorney (Raymond Thomas Burgasser of counsel), for appellant.

      Richard H. Speranza, Public Defender (Leonard G. Tilney, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, the People’s motion pursuant to CPL 440.40 granted, sentence set aside and case remitted to Supreme Court, Niagara County, for the filing of a predicate felony statement prior to resentencing, for the reasons stated in the dissenting memorandum of Justice James H. Boomer at the Appellate Division (105 AD2d 1107-1109).

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