text:
    Bee Jay Industrial Corp., Appellant-Respondent, v George Fina, Respondent-Appellant, and Charles Fina, Respondent.
    Submitted March 19, 1984;
    decided April 3, 1984
   Motion to dismiss cross appeal taken by defendant George Fina granted and cross appeal dismissed, without costs, upon the ground that said cross appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


source: Caselaw Access Project

license: Public Domain

text:
    Robert Harris, Respondent, v Clarence E. Armstrong et al., as Executors of Lessie V. Cool, Deceased, Respondents-Appellants; Donald B. Van Liere, Respondent, and William Cool, Appellant.
    Submitted February 27, 1984;
    decided April 3, 1984
   Motion to dismiss appeal taken by defendant William Cool granted and that appeal dismissed, without costs, upon the ground that the prior order of the Appellate Division is not one which necessarily affects the final determination appealed from (CPLR 5601, subd [d]; see Karell Realty Corp. v State of New York, 29 NY2d 935; see, also, Cohen and Karger, Powers of the New York Court of Appeals, § 79, p 344), and upon the further ground that said appellant is not aggrieved by the November 4, 1983 modification by the Appellate Division (CPLR 5601, subd [a], par [iii]).

Judge Simons taking no part.


text:
    John F. Innes, III, Respondent, v County of Genesee et al., Appellants.
    Submitted March 26, 1984;
    decided April 3, 1984
   Motion to dismiss appeal denied.


text:
    Bernice Miller, Respondent, v Joseph Miller, Appellant.
    Decided April 3, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the judgment appealed from under CPLR 5601 (subd [d]) does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Darryl J. Simmons, Appellant, v Superintendent of the Suffolk County Correctional Facility et al., Respondents.
    Submitted February 27, 1984;
    decided April 3, 1984
   Motion for leave to appeal dismissed upon the ground that movant has failed to comply with section 500.11 (d) (1) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.11 [d] [1]).


text:
    The People of the State of New York, Respondent, v Bernard St. John, Appellant.
    Submitted March 19, 1984;
    decided April 3, 1984
   Motion to vacate the Court of Appeals order of dismissal dated March 3, 1981 denied. [See 53 NY2d 704.]


text:
    Albert J. Stevenson, Respondent, v Spencerport Central School District et al., Appellants, et al., Respondents.
    Submitted February 27, 1984;
    decided April 3, 1984
   Motion for leave to appeal dismissed upon the ground that appellants have failed to file a copy of the record or appendix of the court below before the February 27, 1984 statutory return date of the motion (22 NYCRR 500.11).


text:
    Marilyn P. Altsheler, Respondent, v Board of Education of Great Neck Union Free School District, Appellant.
    Argued March 20, 1984;
    decided May 1, 1984
    APPEARANCES OF COUNSEL

      Jeróme H. Ehrlich scad. Lawrence W. Reich for appellant.

      Janis Levart Barquist and James R. Sandner 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, without costs, and respondent’s determination reinstated.

On review of the entire record, it is concluded that there is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180) that petitioner improperly disclosed to her pupils words on which they were to be tested on a standard achievement test and thus distorted the comparative value of those tests. The Appellate Division erred when it substituted its judgment for that of the panel in assessing the weight to be accorded to the various witnesses’ testimony. It has not been convincingly shown that petitioner was prejudiced when respondent’s expert witness was permitted to remain in the hearing room during the proceedings.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

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


text:
    In the Matter of the Estate of Julia Whelan, Deceased. Muriel Schauff et al., Respondents; Attorney-General of the State of New York, Appellant.
    Argued March 21, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {Julia C. Tobey, Peter H. Schiff and Jonathan J. Silbermann of counsel), for appellant.

      John B. Amrod and Michael J. Creighton for respondents.
   OPINION OF THE COURT

Order affirmed, with costs payable out of the estate to all parties appearing separately and filing separate briefs, for reasons stated in the memorandum at the Appellate Division (93 AD2d 891).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    GIT Industries, Inc., Formerly Known as Realty and Mortgage Investors, Respondent, v Allan V. Rose, Appellant.
    Argued March 19, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Edward Flower and Warren Landau for appellant.

      Donald S. Snider and Gerald M. Levine for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memoranda at the Appellate Division (81 AD2d 656, 94 AD2d 714).

Concur: Judges Jasen, Jones, Wachtler, Meyer, Si-mons and Kaye. Taking no part: Chief Judge Cooke.


text:
    Frank Perricone, Appellant, v City of New York, Respondent, and John T. Brady & Co., Respondent and Third-Party Plaintiff. FMC Corporation, Doing Business as Link Belt Division of FMC Corporation, Third-Party Defendant-Respondent.
    Argued March 20, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      David S. Gould and Aaron J. Broder for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (June A. Witterschein and Stephen J. McGrath of counsel), for City of New York, respondent.

      Morgan Kennedy and Benjamin J. Sergi for John T. Brady & Co., respondent.

      A. Paul Goldblum for FMC Corporation, third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The appeal in the action against defendant John T. Brady and Co. should be dismissed, without costs, and the order of the Appellate Division should otherwise he affirmed, with costs.

Plaintiff does not, and cannot, seriously dispute that the Appellate Division’s order, insofar as it denied his motions concerning his action against John T. Brady & Co., is nonfinal. As a result, the appeal as against John T. Brady & Co. must be dismissed. (See Powell v Gates-Chili Cent. School Dist., 41 NY2d 827.)

As to the Appellate Division’s dismissal of plaintiff’s complaint against the City of New York for failure to move for entry of a default judgment, we find no legal error in that determination. CPLR 3215 (subd [c]) provides that if the plaintiff “fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.”

Plaintiff allegedly served his complaint upon defendant on May 17, 1971 and the city never answered. Notwithstanding that more than 10 years have elapsed since the action was allegedly commenced, the plaintiff has made no attempt to obtain entry of a default judgment. Having failed to comply with the statutory requirements, plaintiff’s complaint was dismissed by the Appellate Division and we find no legal error in that decision. (See Chin v Hooker, 95 AD2d 790; Winkelman v H & S Beer & Soda Discounts, 91 AD2d 660.)

Plaintiff’s argument that the city waived its right to move for dismissal of the complaint is unpersuasive inasmuch as the Appellate Division exercised its authority under CPLR 3215 (subd [c]) and dismissed the complaint on its own initiative. Nor can plaintiff be heard to complain that he had no notice that the Appellate Division intended to act pursuant to the statute and, therefore, had no opportunity to demonstrate sufficient cause why the complaint should not be dismissed. Plaintiff was aware for more than ten years that the city had not answered, yet failed to move for a default judgment. Furthermore, he never requested reargument at the Appellate Division or sought remittal by that court to Supreme Court to afford him an opportunity to supplement the record to show sufficient cause why the complaint should not be dismissed.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

On the appeal as against defendant John T. Brady & Co.: Appeal dismissed, without costs.

On the appeal as against the City of New York: Order affirmed, with costs.


text:
    Angelo Glielmi et al., Respondents, v Toys “R” Us, Inc., et al., Respondents. Toys “R” Us, Inc., Third-Party Plaintiff-Respondent, v Melito Construction Corporation, Third-Party Defendant-Appellant.
    Argued March 19, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      E. Richard Rimmels, Jr., and Bruno Von Lorenz for appellant.

      Michael Conforti and Peter James Johnson for plaintiffs-respondents.

      Roger P. McTiernan, Jr., and Kathryn Deborah Nealon for defendants-respondents and third-party plaintiff-respondent.
   OPINION OF THE COURT

Memorandum.

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

The factual setting out of which this appeal arises is described in the memorandum opinion at the Appellate Division (94 AD2d 663). We respond to the legal contentions advanced by appellant contractor in our court.

The jury was charged that the owner-trustees and the tenant were to be considered a single unit for purposes of determining liability to the injured plaintiff. There was evidence from which the jury could properly have found that both were absolutely liable under subdivision 1 of section 240 of the Labor Law, and that the contractor was concurrently liable in negligence. More specifically, there was testimony that the ladder from which plaintiff Angelo fell was not secured at the upper end by mechanical means — a violation of the State safety regulations promulgated under the statute inasmuch as Angelo was standing on a rung higher than 10 feet above the ladder footing when he fell (12 NYCRR 23-1.21 [b] [4] [iv]) — and that the failure to have provided scaffolds also constituted a statutory violation. The jury was further instructed, without presently pertinent objection, that both of these violations could be considered evidence of negligence on the part of the contractor. There is thus no basis to disturb the jury verdict of liability on the part of the owner-trustees, the tenant, and the contractor.

Inasmuch as the jury found that Angelo’s injuries were caused in part by the negligence of the contractor, the contractor was obligated under the indemnification provision of the contract to indemnify the tenant (designated “owner” in the construction contract). This obligation of indemnification also ran to the owner-trustees inasmuch as they and the tenant were considered to constitute a single unit by the court and the parties at the trial. Moreover, even if the owner-trustees were to be treated as a separate legal entity, they would be entitled to common-law indemnity from the tenant and the contractor (thus ultimately from the contractor under the contract indemnification provision) inasmuch as their liability under subdivision 1 of section 240 was in this instance vicarious only. (Kemp v Lakelands Precast, 55 NY2d 1032; Kelly v Diesel Constr. Div., 35 NY2d 1).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Ryder Truck Rental, Inc., et al., Appellants, v Parking Violations Bureau of the Transportation Administration of the City of New York, Respondent.
    Argued March 21, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      George G. Gallantz and LeonardB. Austin for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Edward F.X. Hart and Leonard Koerner of counsel), for respondent.

      George G. Gallantz for Catrala of New York, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Appellant instituted this proceeding under CPLR article 78 to challenge the determination of the Parking Violations Bureau Appeals Board of the Transportation Administration of the City of New York which upheld the validity of six notices of violation (summonses) issued to appellant for parking violations. The notices were served pursuant to the provisions of subdivision 2 of section 238 of the Vehicle and Traffic Law which provides: “2. A notice of violation shall be served personally upon the operator of a motor vehicle who is present at the time of service, and his name, together with the plate designation and the plate type as shown by the registration plates of said vehicle and the expiration date; the make or model, and body type of said vehicle, shall be inserted therein. The notice of violation shall be served upon the owner of the motor vehicle if the operator is not present, by affixing such notice to said vehicle in a conspicuous place. Whenever such notice is so affixed, in lieu of inserting the name of the person charged with the violation in the space provided for the identification of said person, the words ‘owner of the vehicle bearing license’ may be inserted to be followed by the plate designation and plate type as shown by the registration plates of said vehicle together with the expiration date; the make or model, and body type of said vehicle. Service of the notice of violation, or a duplicate thereof by affixation as herein provided shall have the same force and effect and shall be subject to the same penalties for disregard thereof as though the same was personally served with the name of the person charged with the violation inserted therein.” In each instance the notice of violation was served pursuant to the prescriptions of the statute applicable when the owner of the vehicle is not present, but in each the expiration date of the registration was omitted. The Appeals Board, in determining that this omission did not invalidate the notices or require their dismissal, concluded that the statutory provision for insertion of the expiration date is directory rather than mandatory.

In Supreme Court respondent Bureau sought to sustain the notices, not on the ground on which the Appeals Board relied, but rather on the alternative theory that the presence of lines drawn through the space for insertion of the expiration date indicated that such dates were not available at the time the notices were served. Supreme Court rejected this theory for lack of proof in the record to sustain it and accordingly annulled the Appeals Board determination.

On appeal the Appellate Division upheld the determination of the Appeals Board on the ground relied on by the Appeals Board, namely that the statutory prescription as to expiration date is directory only. On further appeal to us, we reverse and reinstate Supreme Court’s order annulling the determination of the Appeals Board, and effectively dismissing the six notices of violation.

At the outset we observe that the only ground available to sustain the determination of the Appeals Board is that on which the Board itself relied; alternative theories and legal arguments now advanced by the Bureau are not available (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 593; Matter of Circus Disco v New York State Liq. Auth., 51 NY2d 24, 32).

The provisions explicitly prescribed by the Legislature in the statute are mandatory (cf. Matter of McCormick v Axelrod, 59 NY2d 568; Matter of King v Carey, 57 NY2d 505). To hold otherwise would be by extension similarly to characterize each of the other items enumerated in the statute, for we perceive no warrant or justification in the articulation of the statute for differentiation between the expiration date and the plate designation, the plate type, the make or model, or the body type of the vehicle. To hold all these elements directory only would evidently be to eviscerate the legislative enactment. It is for the Legislature rather than the judiciary, should the former be disposed to do so, to distinguish between these elements by designating some directory and others mandatory.

The determination of the Appeals Board must therefore be annulled and the notices of violation dismissed.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer and Simons concur; Judge Kaye taking no part.

Order reversed, with costs, and the order of Supreme Court, New York County, reinstated in a memorandum.


text:
    Owen Carter et al. Appellants, v Department of Correction of the City of New York et al., Respondents.
    Argued March 21, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Louis Benza for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Edward F. X. Hart and Ronald E. Sternberg of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (92 AD2d 465).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Tommy and Tina, Inc., et al., Appellants, v Department of Consumer Affairs of the City of New York, Respondent.
    Argued March 20, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Ronald S. Koppelman for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Joan E. Handler and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (95 AD2d 724).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Maria M. Rodriguez, Individually and as Administratrix of the Estate of Israel M. Rodriguez, Deceased, and as Mother and Natural Guardian of Blanca R. Rodriguez, Respondents, v City of New York et al., Appellants, et al., Defendants.
    Argued March 19, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Marvin R. Kwartler and Stephen J. McGrath of counsel), for City of New York, appellant.

      Carol Mellor and Joseph Fallek for Richard Riccio, appellant.

      Emilio Nunez and Fred R. Profeta, Jr., for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (92 AD2d 813). We add only that the evidence was sufficient to present a jury question as to appellant Riccio.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Norman Silberstein, Appellant, v County of Westchester, Respondent.
    Argued March 20, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Loren I. Glassman for appellant.

      A. Paul Goldblum for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (92 AD2d 867).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Danleigh Fabrics, Inc., Appellant, v Gaynor-Stafford Industries, Inc., et al., Defendants, and Chemical Bank, Dommerich Division, Respondent.
    Argued March 21, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Jed R. Schlacter and Jeffrey S. Kaplan for appellant.
   OPINION OF THE COURT

Memorandum.

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

In accordance with a factoring agreement, a factor may charge back against the seller of textiles the full amount of invoices which are unpaid and disputed, even though the actual dispute which the seller has with its own customer may relate both to the goods which are the subject of the unpaid invoices and to goods previously paid for.

In January, 1978 plaintiff, Danleigh Fabrics, Inc., a textile converter, entered into a factoring agreement with defendant Chemical Bank. Chemical agreed to purchase accounts receivable of Danleigh it found acceptable and to “assume the loss on such receivables, due solely to the financial inability of the customer to pay at maturity, provided the customer has * * * accepted the goods * * * without dispute, offset or counterclaim”. Danleigh, for its part, warranted that “the customer in each instance has received and will accept the goods sold * * * and the invoice therefor, and will pay the same as and when due without dispute,” and promised to notify Chemical of any disputes by its customers relating to invoices factored through Chemical, settle such disputes, and promptly pay Chemical the amount of the receivables affected thereby. The agreement further provided that “[i]n addition to all other rights to which [Chemical is] entitled under this agreement, where there is such dispute and/or claim, or if any unapproved receivables be unpaid at its maturity, [Chemical] may charge the amount of the receivable so affected or unpaid to [Danleigh].” In this action, Danleigh alleges that Chemical made improper charge-backs relating to certain accounts receivable from one of its customers, defendant Gaynor-Stafford Industries, Inc.

In early 1978, Danleigh made several sales of fabric known as Style 579 to Gaynor. As was the parties’ practice, upon shipping the goods Danleigh sent original invoices to Gaynor and copies to its factor Chemical. Chemical immediately paid Danleigh the invoice amounts less its commission, and when the invoices became due Gaynor paid all of the Style 579 invoices in full to Chemical. Later that year, Danleigh began selling another fabric, Style 536, to Gay-nor. Once again it factored the accounts through Chemical. While Gaynor paid Chemical on maturity for some of the Style 536 goods, it failed to pay when due several invoices totaling $161,286.64 for shipments between October and December, 1978. In January, 1979 Danleigh notified Chemical that Gaynor had raised a dispute as to the quality of Danleigh’s Style 536 goods and “was stopping all payments to all factors.” Chemical then charged back the amount of $161,286.64 against Danleigh’s account, and Danleigh thereupon brought this action against both Chemical and Gaynor.

Chemical moved to dismiss the claims against it, contending that where there are unpaid receivables and a dispute, its right to charge back the amount of the unpaid receivables under the factoring agreement is unconditional. Danleigh cross-moved for summary judgment. While Danleigh admits that all of the $161,286.24 in Gaynor’s unpaid invoices relates to Style 536 goods, and that it has a dispute with Gaynor as to the quality of some of those goods, it argues that some portion of the underlying dispute with Gaynor relates as well to Gaynor’s dissatisfaction with Style 579 goods, for which Chemical has already been fully paid, and that under our decision in Duobond Corp. v Congress Factors Corp. (41 NY2d 177) such a dispute cannot be the basis for a factor’s charge-back.

Special Term denied both motions, concluding that there were issues of fact regarding the merchandise covered by the charge-backs. The Appellate Division unanimously modified by granting Chemical’s motion, finding that the charge-backs covered only Style 536 goods and “there is nothing in the record to affirmatively demonstrate that the chargebacks related to the prior invoices covering style No. 579, which had been paid by Gaynor and were not in dispute.” (95 AD2d, p 721.) We now affirm.

In Duobond, we held that a factor, operating under an agreement similar to the one herein, had no right to charge back certain unpaid invoices where it was acknowledged that there was no dispute as to the goods covered by those invoices and the dispute concerned only goods of another type for which the factor had already been paid. Here, by contrast, all of the unpaid invoices relate to Style 536 goods, and it is agreed that Gaynor disputed the quality of Style 536 goods. Danleigh argues that there is an issue of fact as to how much of the dispute underlying Gaynor’s refusal to pay may relate to the Style 579 goods. Neither the factoring agreement between the parties nor our decision in Duobond requires that the factor before exercising its right of charge-back verify the merits of the dispute between the seller and its customer, or limits the factor’s right of charge-back to the portion of the unpaid invoices referable to a particular dispute regarding quality of the goods. Here, unlike Danleigh’s customer raised a dispute as to the goods which are the subject of the outstanding invoices, and announced its intention to stop all further payments to factors. Once there is such a dispute concerning goods that are the subject of unpaid accounts, the parties’ agreement places the risk of collecting those accounts on the seller, not the factor.

We have considered Danleigh’s other arguments and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    Hassan Albouyeh, Individually and as Administrator of the Estate of Bahman Albouyeh, Deceased, Plaintiff, v County of Suffolk et al., Defendants, Gaetano Cusimano, Respondent, and Maria Thomas, as Administratrix of the Estate of Richard D. Forbes, Deceased, et al., Appellants. (Action No. 1.) Ann Richardson, Individually and as Administratrix of the Estate of Scott Richardson, Deceased, Appellant, v County of Suffolk et al., Defendants, Gaetano Cusimano, Respondent, and Parvaneh Albouyeh, Appellant. (Action No. 2.) Richard D. Forbes, III, and Another, Infants, by Maria B. Thomas, Their Mother and Guardian, Plaintiffs, v County of Suffolk et al., Defendants, Hassan Albouyeh, as Administrator of the Estate of Bahman Albouyeh, Deceased, et al., Appellants, and Gaetano Cusimano, Respondent. (Action No. 3.)
    Argued March 20, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Vincent B. Frontero for Maria Thomas and others, appellants.

      Vincent D. McNamara for Ann Richardson and another, appellants.

      Harry A. Lipsig, Cyrus M. Diamond, Richard C. Bell and Dennis A. Lopez for Ann Richardson, appellant.

      Louis F. Vaccarella for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant Cusimano testified on deposition that he had left his car locked in the driveway of his home and denied that defendant Conlon, the driver of the vehicle at the time of the collision which gives rise to this action, was driving it with his permission. The fact that defendant Conlon stole the car from the driveway of the New York Institute of Technology was stated, without contradiction, in her deposition testimony and in the testimony of the arresting officer that at the scene of the accident she admitted that she had stolen the car. That Conlon testified to having stolen the car from a place different than Cusimano testified he had left it and that Mrs. Cusimano attended New York Institute of Technology are insufficient to create a jury question with respect to permission in the face of Conlon’s admission against penal interest. Under those circumstances the presumption of permission arising from Cusimano’s admission of ownership was rebutted by the uncontradicted evidence and he was entitled to summary judgment dismissing the complaint (St. Andrassy v Mooney, 262 NY 368; Der Ohannessian v Elliott, 233 NY 326; Wilson v Harrington, 269 App Div 891, affd 295 NY 667; see Payne v Payne, 28 NY2d 399, 405; 1 NY PJI2d 47).

Nor was summary judgment for defendant Cusimano foreclosed by the provisions of subdivision (a) of section 1210 of the Vehicle and Traffic Law. That provision applies only “upon highways and upon private roads open to public motor vehicle traffic” unless otherwise expressly provided (Vehicle and Traffic Law, § 1100, subd [a]). There is, however, no presumption that the New York Institute driveway is a private road open to public motor vehicle traffic. It was, therefore, plaintiffs’ burden to go forward with proof establishing prima facie that the place from which Conlon stole the vehicle was a highway or such a private road. The suggestion that proof may be adduced at trial that the car was in fact on the public highway when Conlon took it is insufficient to meet that burden, it being neither proof in evidentiary form nor a fact unavailable to plaintiffs within the meaning of CPLR 3212 (subd [b]).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

Order affirmed, etc.


text:
    Jewish Board of Guardians, Appellant, v Grumman Allied Industries Incorporated et al., Respondents, et al., Defendant. Thomas J. Biuso, Third-Party Plaintiff, v Auriga Building Corporation, Third-Party Defendant. (And Another Action.)
    Argued March 21, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Lawrence S. Greengrass and Howard D. Avrutine for appellant.

      Curtiss B. Kline for Grumman Allied Industries Incorporated, respondent.

      William H. Morris and Gerald P. McMorrow for Thomas J. Biuso, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (96 AD2d 465), to which we add that, as to the claim against defendant Biuso, plaintiff’s expert’s testimony established no more than that the way the expert would have handled the job would meet the standards of the architectural profession, not that Biuso did not meet such standards. Indeed, as to application of the roof to the modular units at the job site rather than at the factory, the expert conceded that there were many precedents for doing it that way.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Evelyn Kornfeld et al., Respondents, v NRX Technologies, Inc., Defendant, and Robert Anderson et al., Appellants.
    Submitted March 22, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Susan Goldenkranz Pernick for appellants.

      Richard L. Weingarten for respondents.
   OPINION OF THE COURT

Memorandum.

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

Respondents commenced this action by way of motion for summary judgment in lieu of complaint to recover $500,000 under notes issued by the corporate defendant, NRX Technologies, Inc., and unconditionally guaranteed in writing by the individual defendant-appellants, Robert Anderson (chairman of the board and director of NRX), Joseph Tribble (president and director) and Joseph Gluck (vice-president, secretary and director). Appellants admitted the genuineness of their signatures but alleged that the guarantees were incomplete when signed, and they had no knowledge of what happened to those guarantees after they were signed. Respondents produced Forms 8-K and 10-Q (signed by appellant Tribble) filed by NRX with the Securities and Exchange Commission (SEC), setting forth the issuance of both the notes and appellants’ guarantees. Special Term granted summary judgment against NRX but ordered an immediate trial to determine whether the guarantees were executed in blank and, if so, whether they were validly completed and delivered. NRX and appellants appealed to the Appellate, Division, which modified by granting summary judgment against appellants, who appeal from that order.

The Appellate Division correctly found no triable issue of fact and granted summary judgment against appellants, even in the absence of a cross appeal by respondents. (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112.) As NRX’s own reports filed with the SEC revealed, NRX had accepted the proceeds of the notes and appellant Anderson had received stock and stock options as inducement for his guarantees. These public reports strongly suggest that, even if incomplete when signed, the guarantees by NRX officers were completed and delivered in accordance with their authorization. In these circumstances, neither the allegations that the guarantees were completed and delivered without authorization, nor appellants’ other conclusory assertions, raised any issue of material fact requiring a trial.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    Martin S. Auer et al., Appellants, v Power Authority of the State of New York, Respondent.
    Submitted March 26, 1984;
    decided May 1, 1984
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and the nonfinal order is not one which comes within the meaning of CPLR 5602 (subd [a], par 2).


text:
    In the Matter of Matthew Genova, Appellant, v Town of Southampton et al., Respondents.
    Submitted April 2, 1984;
    decided May 1, 1984
   Motion for leave to appeal dismissed as untimely (CPLR 5513, subd [b]), with $20 costs and necessary reproduction disbursements.


text:
    Glen Herman, Appellant, v State of New York, Respondent.
    Submitted April 9, 1984;
    decided May 1, 1984
   Motion to vacate the Court of Appeals order of dismissal dated March 19, 1984 granted. Appellant’s papers on appeal are to be served and filed on or before June 1, 1984. [See 62 NY2d 617.]


text:
    In the Matter of Roger Macon, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted March 19, 1984;
    decided May 1, 1984
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance in the absence of direct involvement of a substantial constitutional question. Motion for leave to appeal denied.


text:
    Betty O. Muka, Appellant, v William L. Allen, Jr., Respondent.
    Submitted March 26, 1984;
    decided May 1, 1984
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the grounds that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (CPLR 5601, subd [b], par 2) and where the constitutional questions involved are not substantial.


text:
    Betty O. Muka, Appellant, v Hancock, Estabrook, Ryan, Shove & Hust et al., Respondents.
    Submitted March 26, 1984;
    decided May 1, 1984
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the grounds that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (CPLR 5601, subd [b], par 2) and where the constitutional questions involved are not substantial, and upon the further ground that no appeal lies from an order entered upon appellant’s default (CPLR 5511).


text:
    Betty O. Muka, Appellant, v Nancy L. Kelly, Respondent.
    Submitted March 26, 1984;
    decided May 1, 1984
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the grounds that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (CPLR 5601, subd [b], par 2) and where the constitutional questions involved are not substantial.


text:
    Betty O. Muka, Appellant, v Paul M. Hanrahan, Respondent.
    Submitted March 26, 1984;
    decided May 1, 1984
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the grounds that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (CPLR 5601, subd [b], par 2) and where the constitutional questions involved are not substantial.


text:
    In the Matter of Sebastian J. Navarra, Appellant, v City of New York, Department of Housing Preservation and Development, Respondent.
    Submitted April 2, 1984;
    decided May 1, 1984
   Renewed motion to vacate this court’s order of dismissal dated January 24, 1984 denied, with $20 costs and necessary reproduction disbursements. [See 61 NY2d 760.]


text:
    In the Matter of Harriet Roberts, as Executrix of Edith Rathaus, Deceased, Appellant-Respondent, v Geraldine Jossen, Respondent-Appellant, and Citibank, N. A., Respondent.
    Submitted April 9, 1984;
    decided May 1, 1984
   Motion for a stay granted to the extent of continuing the interim stay contained in the order to show cause signed by Honorable Sol Wachtler of this court on April 2, 1984. Application for a preference denied without prejudice to renewal in the event section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4) review is terminated.


text:
    Elaine Felt, Respondent, v Irving M. Felt, Appellant.
    Argued March 28, 1984;
    decided May 3, 1984

      APPEARANCES OF COUNSEL

      Jamie B. W. Stecher and Mark H. Alcott for appellant.

      Patricia Ferrari and Julia Perles for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Sidney H. Asch at the Appellate Division (93 AD2d 396).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Luis F. Diaz, Appellant, v Pilgrim State Psychiatric Center of the State of New York et al., Respondents.
    Argued March 26, 1984;
    decided May 3, 1984

      APPEARANCES OF COUNSEL

      August J. Ginocchio and Joseph F. O’Neill for appellant.

      Robert Abrams, Attorney-General (John Q. Driscoll and Peter H. Schiff of counsel), for Pilgrim State Psychiatric Center of the State of New York, respondent.

      Michael J. Smith and James W. Roemer, Jr., for Civil Service Employees Association, respondent.
   OPINION OF THE COURT

Memorandum.

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

While the Appellate Division was in error in holding that the petitioner had no standing to bring a proceeding to vacate the arbitration award, an award may not be vacated unless violative of public policy or wholly irrational. It cannot be said that the arbitrator’s procedural resolution of the issue concerning compliance with the contractual requirement that the demand for arbitration be made within a specified time and manner was irrational.

As to the standing issue, the contract between the parties, the employees, the union and the State specifically allows an employee who is the subject of a disciplinary charge the right to representation at each step of the disciplinary procedure by the union or any attorney selected by an employee or to represent himself or herself. Additionally, the contract entitles the employee to file a grievance, elect to demand arbitration, notify the American Arbitration Association of an unresolved grievance and request the appointment of an arbitrator and the scheduling of a hearing. Thus, this case can be distinguished from Chupka v Lorenz-Schneider Co. (12 NY2d 1), Matter of Soto (Goldman) (7 NY2d 397) and Matter of Cornell v Caren (76 AD2d 974, app dsmd 53 NY2d 939), relied upon by the Appellate Division, in that in those cases the collective bargaining agreements involved did not give the employee the options which he had in this case.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    Rusciano Realty Services, Ltd., Respondent, v Irving Griffler, Doing Business as S & S Griffler, Appellant.
    Decided May 3, 1984

      APPEARANCES OF COUNSEL

      Michael B. Golden for appellant.

      Michael Rikon for respondent.
   OPINION OF THE COURT

Memorandum.

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

Unless the parties have agreed otherwise, a real estate broker will be deemed to have earned his commission when he produces a purchaser who is not only ready and willing to purchase at the terms set by the seller, but able to do so as well. (Lane Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36, 42; Wagner v Derecktor, 306 NY 386, 390; Blackmore v Wigne Land Corp., 97 AD2d 889.) There being no agreement to the contrary in this case, it was error for the trial court in its supplemental instruction to inform the jury that they were not to be concerned with the prospective buyer’s financial capability to purchase “because that is not an element in this case”. The prospective buyer’s financial ability is indeed an essential element, and one which plaintiff was required to establish in order to recover. The erroneous instruction was particularly harmful here because it came in response to the jury’s specific request for clarification on that very issue.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

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


text:
    Daniel M. Vinnik et al., Respondents, v 795 Fifth Avenue Corporation et al., Appellants.
    Argued March 27, 1984;
    decided May 3, 1984

      APPEARANCES OF COUNSEL

      Alvin K. Hellerstein, Eva L. Coben and Jed Ringel for appellants.

      Louis A. Craco, Millard L. Midonick, David G. Trachten-berg and Gary J. Malone for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division and for the reasons stated by that court (94 AD2d 685) that the documents submitted by defendants on their motion to dismiss under CPLR 3211 (subd [a], pars 1, 7) are not sufficient, without more, to constitute a defense to the causes of action alleged in the complaint warranting its dismissal.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.


text:
    Sheldon R. Raphael et al., Appellants, v Myron Cohen et al., Respondents. (And Another Action.)
    Decided May 3, 1984

      APPEARANCES OF COUNSEL

      Stuart A. Schlesinger for appellants.

      Robert D. Ryan for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for the exercise of its discretion.

Supreme Court granted plaintiffs’ cross motion to deem their bill of particulars timely served, “in the interests of justice”. The Appellate Division reversed, on the law, denied plaintiffs’ motions, and granted defendants’ cross motion for summary judgment, noting that the only excuse for the delay in serving the bill was law office failure which was an insufficient excuse. CPLR 2005 now allows delay or default due to law office failure to be excused in the exercise of discretion. The Appellate Division should consider whether in the exercise of this discretion plaintiffs’ delay in serving their bill of particulars should be excused, as well as whether plaintiffs have demonstrated that they have a meritorious cause of action.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and case remitted to the Appellate Division, Second Department, for the exercise of its discretion, in a memorandum.


text:
    The People of the State of New York, Respondent, v Lovonsa Barnes, Appellant.
    Argued March 22, 1984;
    decided May 3, 1984
    APPEARANCES OF COUNSEL

      Kenneth Rabb, Matthew Muraskin, Michael J. Obús and Morton J. Marshack for appellant.

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

Memorandum.

The order of the Appellate Term should be affirmed.

The defendant, having pleaded guilty to the class B misdemeanor of attempted resisting arrest, was sentenced to 90 days’ imprisonment and a penalty assessment of $40. Defendant contends that the penalty assessment imposed under section 60.35 of the Penal Law, and made enforceable under CPL 420.35, is civil in nature and is unconstitutional in that it discriminates against individuals who are convicted of Penal Law offenses in violation of the equal protection clauses of the State and Federal Constitutions.

Assuming, without deciding, that the mandatory penalty assessment law is civil in nature we conclude that it does not, as the defendant contends, offend the equal protection clause by creating an irrational classification. The statute treats all persons convicted of Penal Law offenses similarly, and it is of no moment that this group is singled out for this assessment. The “rational relationship” test sought to be applied by the defendant would only be relevant if the State sought to treat similarly situated individuals in a different manner. That is not the case here.

Because these statutes do not employ suspect classifications or adversely affect fundamental rights, the only rationality test which must be passed is the determination of “whether the challenged classification bears a reasonable relationship to some legitimate legislative objective” (Alevy v Downstate Med. Center, 39 NY2d 326, 332). The penalty would appear to be related, at the very least, to the State’s legitimate interest in raising revenues.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    In the Matter of Midwest Mutual Insurance Company, Appellant. Frederick W. Sinnott, Sr., as Administrator of the Estate of Frederick W. Sinnott, Jr., Deceased, et al., Respondents.
    Argued March 23, 1984;
    decided May 3, 1984

      APPEARANCES OF COUNSEL

      Norman H. Dachs for appellant.

      Anthony J. McNulty for State Farm Mutual Insurance Company, respondent.

      Dominick A. Pelle for Frederick W. Sinnott, Sr., as Administrator of the Estate of Frederick W. Sinnott, Jr., respondent, precluded.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (96 AD2d 530).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    The People of the State of New York, Respondent, v Darlene Harris, Appellant.
    Argued March 26, 1984;
    decided May 3, 1984

      APPEARANCES OF COUNSEL
   OPINION OF THE COURT

Memorandum.

information provided in the application for the warrant to search defendant’s apartment to justify the issuance of that warrant.

Before the detective opened the mailbox, he had discovered lawfully that the occupant of a certain apartment owned the keys found near the victim’s body and that these keys fit the defendant’s mailbox. This information, together with the other incriminating evidence acquired before and unrelated to the opening of the mailbox, was sufficient to support the lawful issuance of a warrant to conduct the search of the defendant’s apartment which, in turn, led to the incriminating evidence which the defendant sought to suppress.

The validity of the warrant to search the apartment based upon this properly obtained information, would not be tainted even if the same application contained unlawfully acquired information; provided, of course, that the lawfully acquired information is sufficient to provide probable cause for the search (People v Arnau, 58 NY2d 27, 38). Here, all of the evidence which was found, including that one of the keys fit the mailbox assigned to the defendant, was included in the search warrant application. That evidence, establishing the probability that the killer lived in the apartment, provided ample cause for the issuance of the warrant.

We have considered defendant’s other arguments and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Leon West, Appellant.
    Argued March 27, 1984;
    decided May 3, 1984

      APPEARANCES OF COUNSEL

      Douglas P. Rutnik, Public Defender {Joseph Cannizzearo and Shawn D. Flaherty of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted for a new trial for the reasons stated in the dissenting opinion (92 AD2d 620, 622) of Presiding Justice A. Franklin Mahoney at the Appellate Division (see, also, People v Ventimiglia, 52 NY2d 350, 361-362). We also note our agreement with the majority’s conclusion that the codefendant, who had pleaded guilty to a lesser offense prior to testifying against the defendant at the trial, was an accomplice as a matter of law. Thus the trial court erred in refusing to charge the jury to this effect when requested to do so by the defendant.

We have considered the defendant’s other contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order reversed and case remitted to Albany County Court for a new trial in a memorandum.


text:
    In the Matter of Michael Simmons, Appellant, v Harold Herkommer, as Executive Director of the New York City Employees’ Retirement System, et al., Respondents.
    Decided May 3, 1984

      APPEARANCES OF COUNSEL

      Richard A. Dienst and Peter A. Schwartz for appellant.

      Frederick A. 0. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The presumption created by section 207-k of the General Municipal Law is rebuttable (Matter of Uniformed Firefighters Assn. v Beekman, 52 NY2d 463, 472-473). The expert opinion of the Medical Board constituted competent evidence sufficient to rebut the presumption (Matter of Ferrigno v Board of Trustees of Police Pension Fund, 48 NY2d 788) and it was for the Board of Trustees to determine whether that opinion or the one offered by the petitioner’s expert was to be credited.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

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


text:
    Raymond R. James et al., Appellants, v Walter E. Shave, Respondent.
    Decided May 3, 1984

      APPEARANCES OF COUNSEL

      Raymond, R. James and Julia L. James, appellants pro se.

      Walter E. Shave, respondent pro se, precluded.
   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. The Appellate Division properly granted summary judgment in favor of the defendant (see 97 AD2d 927). Although a plenary action may lie in some rare instances to set aside a prior judgment (see Oppenheimer v Westcott, 47 NY2d 595, 602-603; 5 Weinstein-Korn-Miller, NY Civ Prac, par 5015.13, pp 50-244, 50-245), plaintiffs’ pleadings set forth no basis for such relief in this case. Moreover, a motion to vacate the prior judgment, if available at all, would be made pursuant to CPLR 5015, not CPLR 2221.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Al S. Parker, Appellant, v Aldo A. Nastasi, as Judge of the Westchester County Court, Respondent.
    Decided May 3, 1984

      APPEARANCES OF COUNSEL

      Al S. Parker, appellant pro se.

      Robert Abrams, Attorney-General (Frederic L. Lieberman of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, without costs, for reasons stated in the memorandum of the Appellate Division (97 AD2d 547).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Medical Facilities, Inc., Respondent, v John W. Pryke, Appellant.
    Argued March 28, 1984;
    decided May 3, 1984
    APPEARANCES OF COUNSEL

      Eileen M. Dacey for

      Carmen Shang for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this action by respondent, Medical Facilities, Inc., operator of a health care facility, to recover for alleged business interruption and rent loss under a fire insurance policy issued by underwriters represented by appellant, John William Pryke, appellant sought, and was properly denied, dismissal of the complaint on the ground that the action was untimely brought. The fire took place six years and three days prior to the commencement of suit, and the insurance policy did not include the language mandated by subdivision 5 of section 168 of the Insurance Law or any reference to a period of limitations for commencing suit.

The court below correctly concluded that in the absence of the “165 lines” required by subdivision 5 of section 168 of the Insurance Law, or any reference to a shortened Statute of Limitations, this breach of contract action was governed by the six-year limitations period of CPLR 213 (subd 2). An insurer who issues a policy omitting reference to the shortened limitations period, in violation of statutory mandate, cannot claim the benefit of its own omission, for an insured would otherwise have no notice that his time to commence suit was different from that provided by law for any contract action. While appellant contends that, within two years after the fire, the insured was given actual notice of a shortened limitations period, there is nothing in the record to raise a triable issue of fact to support this conclusory assertion, and in any event even actual notice would not have cured the insurer’s failure to make a shortened limitations period part of the insurance contract.

A cause of action against an insurer will accrue on the date of the fire if the policy so provides (Proc v Home Ins. Co., 17 NY2d 239), but in the absence of any provision regarding accrual in the contract of insurance the Statute of Limitations for breach of contract generally begins to run upon breach. Here, the contract of insurance required that all claims be paid within 30 days after presentation and acceptance by the insurer of satisfactory proof of loss. Even if the insured furnished such proof on the very day of the fire, there could according to the contract be no breach by the insurer’s failure to pay until 30 days had passed. Respondent’s action commenced six years and three days from the date of the fire was therefore timely.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.

       To the extent that language contained in Hamilton v Royal Ins. Co. (156 NY 327, 336-337), addressing a different issue, is to the contrary, it should not be followed.


text:
    Marvin R. Neuwirth, as Executor of Kitty Neuwirth, Deceased, Respondent, v Blue Cross & Blue Shield of Greater New York, Blue Cross Association, et al., Appellants.
    Argued March 23, 1984;
    decided May 3, 1984

      APPEARANCES OF COUNSEL

      John Colucci, Ellen B. Levin, John L. Shurtleff and Jerrold I. Ehrlich for appellants.

      Louis S. Ederer and Marvin S. Cowan for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and, on defendants’ stipulation, judgment granted in favor of plaintiff.

The burden of proving that a claim falls within the exclusions of an insurance policy rests with the insurer (see International Paper Co. v Continental Cas. Co., 35 NY2d 322, 327; Prashker v United States Guar. Co., 1 NY2d 584, 594). Accordingly, the trial court properly ordered a new trial after it recognized that it had erroneously charged the jury that the insured’s representative had the burden of proof as to the application of the exclusions.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

Order affirmed, etc.


text:
    John J. Durante, as County Clerk of Queens County, et al., Appellants, v Herbert B. Evans, as Chief Administrative Judge of the Courts, et al., Respondents.
    Argued March 22, 1984;
    decided May 3, 1984

      APPEARANCES OF COUNSEL

      Arthur Birnbaum for appellants.

      Michael Colodner and Paul A. Feigenbaum for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion of Justice John T. Casey at the Appellate Division (94 AD2d 141), except so much thereof as is contained in footnote 2.

Concur: Judges Jasen, Jones, Wachtler, Meyer, Si-mons and Kaye. Taking no part: Chief Judge Cooke.


text:
    In the Matter of Central Savings Bank, Respondent, v Fashoda, Inc., Appellant.
    Argued March 27, 1984;
    decided May 3, 1984

      APPEARANCES OF COUNSEL

      Harlan R. Harrison for appellant.

      Michael A. Kornstein for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (94 AD2d 927).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Jose A. Yanis, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York, et al., Respondents.
    Decided May 3, 1984

      APPEARANCES OF COUNSEL

      Richard Hartman and Raymond E. Kerno for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Caryn M. Hirshleifer 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), judgment affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (98 AD2d 669).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Ellen P. Surlak, Respondent, v Joseph E. Surlak, Appellant.
    Submitted March 26, 1984;
    decided May 3, 1984
   Motion to reconsider and vacate the Court of Appeals order of dismissal dated February 14,1984 denied. [See 61 NY2d 906.]


text:
    The People of the State of New York, Respondent, v Robert A. Comforto, Appellant.
    Submitted February 21, 1984;
    decided May 8, 1984

      APPEARANCES OF COUNSEL

      J. Irwin Shapiro and Daniel M. Kolko for appellant.

      Patrick Henry, District Attorney (Gabrielle Weglein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant pleaded guilty to criminal possession of a controlled substance in the second degree after the police seized more than four ounces of cocaine from hir home. The entry into defendant’s home and seizure of the contraband was made pursuant to a warrant issued on the basis of information supplied by an informant. The question on this appeal is whether the issuing magistrate had sufficient information before him to make a reasoned determination that the tip was credible and that its substance was derived in a reliable way.

The warrant application was in the form of an affidavit by a State trooper recounting the statements of the informant, who had observed cocaine in defendant’s home the previous day. Attached to the sworn statement was a transcript of a meeting between a police investigator and the informant, in which the informant described the interi- or of defendant’s home, the place in the home where the cocaine was kept, and the circumstances under which the informant had occasion to observe the cocaine.

On this appeal, defendant does not argue that the substance of the informant’s tip, that cocaine was located in defendant’s home, could not form a basis for a determination of probable cause or that the asserted means (firsthand observation) by which the informant gained this information could not. be deemed reliable. Rather, defendant argues that there was insufficient information before the magistrate for him to infer that the particular information was credible or that the informant was trustworthy.

It is true that on this record no reasonable inference could be drawn that the informant himself was trustworthy. He was not merely a citizen-informant coming forward of his own free will. Indeed, the information was forthcoming only after the informant, having been observed by an undercover officer entering and exiting defendants home, was arrested and five ounces of cocaine was taken from his person. Moreover, the warrant application contained no other information, such as that the informant had previously supplied police with reliable information, from which the informant could be deemed trustworthy.

Although the informant’s general trustworthiness was never established, the particular tip he supplied could, nevertheless, be properly considered by the issuing magistrate as credible. The informant’s admission that he had that day purchased cocaine from defendant was offered contrary to his penal interests. And, notwithstanding that the informant was caught “red handed” with the cocaine and could be viewed as having little to lose by falsely relating where the contraband was purchased, it can also be inferred that an individual in the informant’s position would not lightly mislead the police and thereby exacerbate his predicament (see People v Rodriguez, 52 NY2d 483, 490). In any event, a portion of the informant’s statement, namely that he had observed cocaine in defendant’s home, was corroborated by police observations of the informant visiting the defendant’s home and the discovery of a large quantity of cocaine on the informant’s person. This corroboration, when combined with the fact that, on a reasonable view of the circumstances in which it was made, the statement could be considered contrary to the informant’s penal interest, provided a sufficient basis for the magistrate to conclude that the tip was credible, although perhaps not admissible on the issue of defendant’s guilt.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Simons and Kaye concur; Judge Meyer taking no part.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Luis Figueroa, Respondent.
    Argued February 16, 1984;
    decided May 8, 1984

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Catherine Lomuscio and Richard G. Denzer of counsel), for appellant.

      John R. McEntee for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

The Appellate Division reversed because it concluded that the People were obligated to produce the undercover officer at the hearing in order to establish probable cause for the defendant’s arrest. However, in view of the fact that this defendant never raised that issue at the hearing, the Appellate Division’s determination was necessarily made as a matter of discretion in the interest of justice (CPL 470.15, subd 3, par [c]) and thus is not appealable to this court (CPL 450.90, subd 2, par [a]; People v Fava, 58 NY2d 807; see, also, People v Dercole, 52 NY2d 956).

Appeal dismissed in a memorandum.


text:
    In the Matter of Gwendolyn Gray, Appellant, v Director, Bronx Developmental Services, Respondent.
    Decided May 8, 1984

      APPEARANCES OF COUNSEL

      Kenneth A. Schultz for appellant.

      Robert Abrams, Attorney-General (Thomas P. Dorsey and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

There is no basis, on this record, for concluding that petitioner’s probationary appointment was terminated for patient abuse, rather than for the stated reason of unsatisfactory performance. Accordingly, petitioner is not entitled to a name-clearing hearing, inasmuch as the reason for dismissal was not of a stigmatizing nature (Matter of Petix v Connelie, 47 NY2d 457). Whether respondent had a good-faith basis for terminating petitioner is an issue beyond our powers of review, given the findings below (Matter of Lentlie v Egan, 61 NY2d 874).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

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


text:
    The People of the State of New York, Appellant, v Leo McLaren, Respondent.
    Argued February 16, 1984;
    decided May 8, 1984

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Catherine Lomuscio and Richard C. Denzer of counsel), for appellant.

      David Samel and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

Although the court erred in holding that the People should have produced the undercover officer at the hearing (see People v Petralia, 62 NY2d 47), its acceptance of the defendant’s alternative argument, that under the circumstances the evidence seized in the premises could not be said to be in plain view, involves a mixed question of law and fact which is not subject to further review in this court when, as here, it is supported by evidence in the record (see People v Harrison, 57 NY2d 470). Thus the order of the Appellate Term should be affirmed for this reason alone.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    Marine Midland Bank, N. A., et al., as Executors of William L. Doerflinger, Deceased, Respondents, v Stephen G. Custer, Appellant.
    Decided May 8, 1984

      APPEARANCES OF COUNSEL

      Paul J. Yesawich, III, and DonB. Iwanicki for appellant.

      Henry W. Cornell, III, for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs, for the reasons stated in the Appellate Division memorandum (97 AD2d 974). We add that when the letter is read together with the note to which it refers, as it must be, the natural import of the words, “This is the amount owing the Doerflinger Estate” is that the relation of debtor and creditor exists between the signer of the letter and the note on the one hand and the estate on the other (Manchester v Braedner, 107 NY 346, 348-349). Absent explanation by defendant that would offer a different meaning, the estate was entitled to summary judgment (id.).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

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


text:
    In the Matter of 101 Park Avenue Associates et al., Appellants, v Trane Company et al., Respondents.
    Decided May 8, 1984

      APPEARANCES OF COUNSEL

      James G. Greilsheimer for appellants.

      John I. Karesh for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (99 AD2d 428). Respondent Trane, as an unpaid subcontractor, has an unqualified right to a mechanic’s lien upon the improved real property (Lien Law, § 3). Petitioners have failed to show a basis for discharge of that lien pursuant to section 19 of the Lien Law as the undertaking filed covers only the lien of the contractor Raisler Corporation.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Ernest J. Pucillo, Appellant, v Edward V. Regan, as State Comptroller, et al., Respondents.
    Decided May 8, 1984

      APPEARANCES OF COUNSEL

      Karen V. Murphy and Raymond G. Lavallee for appellant.

      Robert Abrams, Attorney-General (Peter H. Schiff and Julie S. Mereson 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), judgment affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (98 AD2d 877).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Meyer, Simons and Kaye. Taking no part: Judge Wacht-ler.


text:
    The People of the State of New York, Respondent, v Felipe Cantre and Mayra Ayala, Appellants.
    Submitted January 23, 1984;
    decided May 8, 1984
   Motions to dismiss the appeals denied.


text:
    Grace Scicchitani et al., Appellants, v Luis M. Lopez, Respondent.
    Submitted April 2, 1984;
    decided May 8, 1984
   Motion for leave to appeal dismissed upon the ground that the supporting papers do not comply with section 500.11 (d) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.11 [d] [2]) (Community School Bd. Dist. 6, Manhattan v Anker, 49 NY2d 997; see April 29, 1980 reminder notice to the bar, 49 NY2d 998).


text:
    In the Matter of John Tanico, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York, Respondent. In the Matter of Anthony Salvatore, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York, Respondent.
    Decided May 8, 1984
   Appeal from order of the Appellate Division entered January 12,1984 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved, and upon the further ground that the appeal, pursuant to CPLR 5601 (subd [d]), from the order entered January 12, 1984 does not lie to review the May 12, 1981 order of the Appellate Division because that prior order was made in an earlier separate proceeding.


text:
    Realty Settlement Corp., Appellant, v Ida Atkin, Respondent.
    Submitted April 2, 1984;
    decided May 8, 1984
   Motion to dismiss appeal, treated as one for imposition of costs against appellant on its stipulation to withdraw appeal, granted and appeal marked “withdrawn”, with costs and $20 costs of motion payable to respondent.


text:
    City of Buffalo Urban Renewal Agency, Respondent, v Ida Atkin, Respondent, and Realty Settlement Corp. et al., Appellants. (And Two Other Titles.)
    Submitted April 2, 1984;
    decided May 8, 1984
   Motion to dismiss appeal, treated as one for imposition of costs against appellants on their stipulation to withdraw appeal, granted and appeal marked “withdrawn”, with costs and $20 costs of motion payable to respondent Atkin.


text:
    Sidney Jainchill, Appellant, v Citibank, N. A., Respondent.
    Decided May 10, 1984

      APPEARANCES OF COUNSEL

      Salvatore S. Russo for appellant.

      Mark Zeichner for respondent.
   OPINION OF THE COURT

Memorandum.

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

We assume, without deciding, that plaintiff has standing to bring this action.

Plaintiff does not and cannot seriously dispute that the subject check was never presented to defendant for payment. Thus, plaintiff’s complaint, insofar as it asserted a cause of action against defendant for wrongfully dishonoring the check, was properly dismissed.

Liberally construed, plaintiff’s complaint also alleges a cause of action against defendant for negligence. However, inasmuch as plaintiff has not offered any evidentiary facts to rebut defendant’s proof that plaintiff’s account had insufficient funds to cover the check at all times from the time the check was drawn until the account closed, even if defendant had promptly recredited the account with the deposit of the separate certified check, defendant could have properly informed plaintiff’s landlord that plaintiff’s account did not contain sufficient funds to cover the check.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

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


text:
    Ralph H. Silver, Appellant, v Mohasco Corporation et al., Respondents.
    Submitted March 29, 1984;
    decided May 10, 1984

      APPEARANCES OF COUNSEL

      Ralph H. Silver, appellant pro se.

      Francis J. Holloway, John P. Asidlo and Howard S. Harris for respondents.
   OPINION OF THE COURT

Memorandum.

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

Examination of the second amended complaint reveals that no error was committed by the Appellate Division when it dismissed all 14 causes of action.

It was not error for the Appellate Division to classify the first cause of action as one for breach of contract, and as so classified to conclude that it is insufficient inasmuch as it alleges no more than a contract terminable at will. Even if it were to be deemed to allege a cause of action in fraud, it would be insufficient for failure to allege a present intention not to perform the promises of future conduct alleged to have been made (Lanzi v Brooks, 43 NY2d 778). The second cause of action has been withdrawn. The third is again insufficient for failure to allege a present intention not to perform the alleged promises of future conduct. The fourth, sixth and eighth, sounding in defamation, are insufficient inasmuch as statements made before the State Division of Human Rights are privileged. The fifth, seventh, ninth and eleventh, asserting claims arising out of an alleged conspiracy to defame appellant for which as appellant now concedes there is no cognizable cause of action, cannot be salvaged as stating causes of action for libel and slander inasmuch as they, too, are based on privileged statements made to the State Division of Human Rights. The tenth, for slander, was properly dismissed for the reasons stated by the Appellate Division. The allegations set forth in the twelfth and thirteenth are now recognized by appellant as insufficient, and it was not an abuse of discretion on the part of the Appellate Division to deny leave to replead. The fourteenth is insufficient for failure to allege consideration which could support the promise asserted to have been made to appellant.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Henry Brown, Appellant.
    Argued May 7, 1984;
    decided May 10, 1984

      APPEARANCES OF COUNSEL

      Andrew E. Abraham and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney {Allan P. Root of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified and the case remitted for a new suppression hearing.

A blind Judge should not preside at a hearing where, as in this case, because of an inability to see, the Judge is unable to evaluate a critical exhibit — a photograph of the contested lineup — without calling upon another person to describe it to him. Under these circumstances the Judge should have recused himself, as the defendant requested, and the denial of the motion constituted an abuse of discretion as a matter of law.

If the defendant’s motion to suppress is denied, an amended judgment should be entered reflecting that determination. However, if the court grants the defendant’s motion in whole, or in part, it should take further action consistent with its determination including, if appropriate, the granting of a new trial.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order modified and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Matthew Lemon, Appellant.
    Decided May 10, 1984

      APPEARANCES OF COUNSEL

      Rose H. Sconiers, Joseph B. Mistrett and Michael C. Walsh for appellant.

      Richard J. Arcara, District Attorney (John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that his sentence is illegal may not be reviewed on this appeal because the point has not been properly preserved. The defendant does not urge that the court exceeded the statutory limits of discretion when it imposed the consecutive minimum terms of imprisonment (see, e.g., People v Fuller, 57 NY2d 152, 156). The only contention is that the court misunderstood the effect the minimum sentences would have upon the defendant’s ability to obtain release on parole, and presumably would have exercised its discretion in a more lenient manner had the error been dispelled. The defendant, however, did not bring this point to the court’s attention at the time of the sentence, or by way of a motion for resentence, and thus no error of law has been preserved for our review (People v McGowen, 42 NY2d 905).

We have considered defendant’s other contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

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


text:
    Lowy & Donnath, Inc., Respondent, v City of New York et al., Defendants, and T. Moriarty & Son, Inc., Appellant.
    Decided May 10, 1984

      APPEARANCES OF COUNSEL

      Steven G. Rubin for appellant.

      Daniel Diamond for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, on so much of that court’s decision as holds that the purchase order did not incorporate by reference the general conditions of the prime contract between defendant T. Moriarty & Son, Inc., and the city, and, accordingly, that payment was due to plaintiff upon submission of each of the several invoices.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye 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.


author: Meyer, J.

text:
    In the Matter of the Arbitration between Country-Wide Insurance Company, Respondent, and Daisy P. Manning, Appellant.
    Argued March 21, 1984;
    decided May 10, 1984

      APPEARANCES OF COUNSEL

      Bernard Meyerson for appellant.

      Steven Kent, Herbert Dicker and Diane Kanca for respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Edward F. X. Hart and Leonard Koerner of counsel), for the City of New York, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (96 AD2d 471).

Concur: Judges Jones, Wachtler, Simons and Kaye. Judge Meyer dissents and votes to reverse in an opinion in which Chief Judge Cooke and Judge Jasen concur.

Meyer, J.

(dissenting). The fallacy in the reasoning of the Appellate Division and of the majority in this court is in their failure to distinguish between those who are entirely exempt from the liability insurance requirements of the Vehicle and Traffic Law and, consequently, from the uninsured motorists insurance requirement of subdivision 2-a of section 167 of the Insurance Law, and those who, though subject to liability insurance requirements, are permitted, upon demonstration of financial responsibility, to self-insure. Matter of New York City Tr. Auth. (Thom) (52 NY2d 1032) decided no more than that the Transit Authority did not qualify as a political subdivision exempted under subdivision 1 of section 370 of the Vehicle and Traffic Law and was, therefore, as a self-insurer, required to provide uninsured motorists coverage. And while Matter of Allstate Ins. Co. v Shaw (52 NY2d 818, 819) recognized the strong policy concern that innocent victims of motor vehicle accidents be recompensed, analysis of the various financial responsibility provisions enacted by the Legislature establishes beyond cavil that the city, as an exempt municipality, is not required to maintain uninsured motorists coverage. The order of the Appellate Division should, therefore, be reversed and the judgment of Supreme Court, New York County, reinstated.

Legislative policy with respect to the maintenance of insurance covering motor vehicle accidents is contained in Vehicle and Traffic Law, article 6 (Financial Security Act), article 7 (Safety Responsibility Act), article 8, covering passenger for hire vehicles, and article 48-A (Registration of Limited Use Vehicles), in Insurance Law, article 7 (Insurance Contract), article 18 (Comprehensive Automobile Insurance Reparations Act [commonly referred to as “no-fault”]), and article 52 (Motor Vehicle Accident Indemnification Corporation [MVAIC] Act) and in PRHPL 25.13. Perusal of the pertinent sections of those enactments makes indelibly clear that, with but few and quite explicit exceptions, the Legislature has expressly exempted from their coverage the State and any political subdivision of the State.

To understand the legislative scheme, one must first consider the various ways in which persons injured or damaged by a motor vehicle are protected under the law. The method most generally applicable is coverage by a liability insurance policy or bond with limits at least equal to those set forth in section 311 of the Vehicle and Traffic Law. Such a policy must also protect the insured against bodily injury inflicted upon him or her by an uninsured motorist (Insurance Law, § 167, subd 2-a). In lieu of such a policy, a person seeking to register a motor vehicle may provide a financial security bond or deposit with the Commissioner of Motor Vehicles $25,000 in cash or specified securities plus an additional sum fixed by the Commissioner to cover his or her no-fault obligation (Vehicle and Traffic Law, § 311, subds 3, 6, 7). A further alternative for a person who has more than 25 vehicles registered in his or her name and who satisfies the Commissioner of Motor Vehicles that he or she will continue to be possessed of financial ability to respond to judgments arising from operation of the motor vehicle is to become a self-insurer (Vehicle and Traffic Law, § 316). A condition of self-insurance is the payment of a fee of $1.50 per vehicle to be transmitted to the Motor Vehicle Accident Indemnification Corporation.

Articles 18 and 52 of the Insurance Law supplement the above-described protections; article 18, by providing first-party benefits to the owner, operator or occupant of an insured motor vehicle without regard to fault; article 52, by providing the means within specified limits for a person, other than an insured or the owner of an uninsured motor vehicle, to obtain payment of a judgment for personal injury or death obtained against a financially irresponsible person (i.e., one whose liability is not covered by insurance, bond, deposit or self-insurance).

Not all motor vehicle owners are subject to all of the above-described financial responsibility requirements, however, and when the provisions establishing which owners are subject to the various requirements are considered it becomes apparent that a municipality is not obligated to provide uninsured motorists coverage. Thus, the Financial Security Act, which imposes the basic financial responsibility requirement, explicitly exempts “any motor vehicle owned by the United States, any state or any political subdivisions of any state”; section 360 of the Vehicle and Traffic Law makes the Safety Responsibility Act inapplicable to “any motor vehicle owned by the United States, the state or any political subdivision thereof”; and section 370 of article 8 requires the filing of an indemnity bond or insurance policy by anyone engaged in transporting passengers for hire “except street cars, and motor vehicles or motorcycles owned and operated by a municipality”. But subdivision 2 of section 321 expressly states that motor vehicles “exempted in subdivision one of this section * * * shall be subject to the provisions of article eighteen of the insurance law” (i.e., to the no-fault coverage requirement). Moreover, the intent to require no-fault coverage for governmental as well as private vehicles is underscored by subdivision 6 of section 671 of the Insurance Law and subdivision 1 of section 672. By the former the Legislature expressly included within the definition of “motor vehicle” fire and police vehicles, and by the latter it mandated that no-fault first-party benefits be provided for in every liability policy issued in compliance with articles 6 and 8 of the Vehicle and Traffic Law, and imposed liability for such benefits upon every owner who maintains another form of financial security in satisfaction of those articles and upon every owner of a motor vehicle subjected under subdivision 2 of section 321 of the Vehicle and Traffic Law to the provisions of the No-Fault Law.

No-fault coverage is not the only instance illustrative of the Legislature’s intent to be selective as to the financial responsibility requirements governing governmental vehicles. Snowmobiles, because they are excluded from section 125 of the Vehicle and Traffic Law definition of “motor vehicle,” are not subject to the provisions of articles 6, 7 and 8 of the Vehicle and Traffic Law, but, article 47 of the Vehicle and Traffic Law, which provides separately for registration of snowmobiles, requires that a snowmobile owned by a governmental agency, other than the United States, or another State or political subdivision thereof, display a registration number (Vehicle and Traffic Law, § 2222, subds 10, 11) and PRHPL 25.13, which requires liability insurance coverage for any snowmobile operated on the roadway or shoulder of a highway, authorizes the Commissioner of Parks upon application of a governmental to “waive the requirement of insurance by a private insurance carrier and issue a certificate of self-insurance, when he is satisfied that such governmental agency is possessed of financial ability to respond to judgments obtained against it, arising out of the ownership, use or operation of such snowmobile.” The Commissioner of Parks is also authorized by that section to waive the requirement of private insurance of a snowmobile owner other than a governmental agency to which the Commissioner of Motor Vehicles has issued a certificate of self-insurance pursuant to section 316 of the Vehicle and Traffic Law.

The foregoing somewhat tedious recitation establishes that a municipality which owns motor vehicles is neither required to carry private insurance nor to make application to the Commissioner of Motor Vehicles for a certificate of self-insurance, is not within the requirements of the MVAIC Act nor obligated as a self-insurer to contribute to MVAIC operations as other self-insurers are, and is wholly exempted from all financial responsibility requirements of articles 6, 7 and 8 of the Vehicle and Traffic Law, except as to (1) no-fault benefits and (2) snowmobiles for which a self-insurance certificate must be sought, not from the Commissioner of Motor Vehicles (as required of other vehicle owners including snowmobile owners seeking to self-insure) but from the Commissioner of Parks.

Those two specific exceptions demonstrate that when it intended to subject governmental vehicles to insurance requirements the Legislature was well aware of the appropriate method of doing so. They also remove any basis for inferring as to governmental vehicles, as did the Shaw case (on the reasoning of which the majority here and in the Appellate Division rely) with respect to nongovernmental vehicles, a legislative intent to require uninsured motorists coverage for municipally owned vehicles.

Realistically, of course, there will be here no “diminution of protection of highway users,” on which the Shaw memorandum (52 NY2d, at p 820) based its conclusion. The issue here is not whether Daisy Manning will be compensated as to the injury inflicted upon her by an uninsured motorist but whether that compensation will come from her own insurer, Country-Wide, or from the city. That the city because it pays no insurance premiums and is not required to contribute to MVAIC operational assessments bears no part of the burden is simply irrelevant, both because the Legislature clearly so intended and because Daisy Manning paid a premium to Country-Wide for the protection it now seeks to require the city, contrary to the Legislature’s intent, to pick up.

Order affirmed, etc.

      . Subdivision 1 of section 321 of the Vehicle and Traffic Law. Subdivision 2 of section 311 also excludes fire and police vehicles from the definition of “motor vehicle” as used in the act, as does section 5202 (subd A, par 1) of the Insurance Law exclude them from the MVAIC Act. Presumably the separate exemption of fire and police vehicles is required because such vehicles, as defined in sections 115-a and 132-a of the Vehicle and Traffic Law may be owned by government or nonprofit entities which would not qualify as the State or a political subdivision of the State.

      . Section 359 of the Vehicle and Traffic Law also excludes from the definition of “person” (subd [d]) “the state or any political subdivision thereof” and from the definition of “motor vehicle” (subd [k]) “fire and police vehicles” (as to which see n 1 above).

      . By article 48-A of the Vehicle and Traffic Law limited use vehicles, defined by section 121-c of the Vehicle and Traffic Law as a motor vehicle having a maximum performance speed of not more than 40 miles per hour, are made subject to the insurance requirements of articles 6, 7 and 8 of the Vehicle and Traffic Law (Vehicle and Traffic Law, § 2265, subd 3), but police and fire vehicles are expressly exempted from the requirement (Vehicle and Traffic Law, § 2269, subd 1).

      . PRHPL 21.05 (subd 1) defines “governmental agency” to “mean any agency of the state of New York and all municipalities within the state.”

      . Although, as above noted, a snowmobile is not a “motor vehicle” for other purposes (Vehicle and Traffic Law, § 125), section 316 expressly provides that as to self-insurance “the term ‘motor vehicle’ shall include ‘snowmobiles’ ”,

      . A further indication of the Legislature’s intent can be found in subdivision 1 of section 321 of the Vehicle and Traffic Law, and subdivision 1 of section 672 of the Insurance Law. Had it deemed the city an owner which maintained another form of financial security (i.e., a self-insurer) and thus within the latter provision, it need not have explicitly made no-fault applicable to governmental vehicles as those subdivisions explicitly do.


text:
    The People of the State of New York, Respondent, v Richard Malizia, Appellant.
    Argued March 26, 1984;
    decided May 10, 1984

      APPEARANCES OF COUNSEL

      Alan M. Dershowitz and Frank A. Lopez for appellant.

      Robert M. Morgenthau, District Attorney {Bruce Allen and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed (see 92 AD2d 154).

On this appeal, defendant contends the evidence of guilt is insufficient, particularly because of the lack of credibility of Harry Terrell, the People’s principal witness, and that the trial court committed reversible error in several evidentiary rulings.

After an earlier trial had resulted in a hung jury, defendant was convicted in a second trial of felony murder (robbery) and common-law murder resulting in the death of William Terrell and of the attempted murder and assault, first degree, of Harry Terrell, the decedent’s brother. The facts are set forth in detail in the opinion of the Appellate Division and need not be repeated here. Briefly, however, the crime occurred in New York City on the evening of December 18, 1978 after the decedent and his brother drove to a street which was deserted at that late hour, where decedent met with defendant and others waiting there in a parked car. Harry Terrell waited down the street in the Terrell vehicle. The purpose of the meeting was to buy drugs and to deliver money to defendant to pay him for past drug purchases. The jury found that defendant shot decedent and then attempted to kill Harry Terrell, sitting in the parked Terrell car, as defendant and his associate sped away from the scene. Decedent’s body was found later several miles from the scene of the meeting.

We agree with the Appellate Division that the verdicts are supported by the evidence. In reviewing the evidence we are obliged to do so in the light most favorable to the People (People v Kennedy, 47 NY2d 196) bearing in mind that credibility is a matter to be determined by the trier of the facts (People v Parks, 41 NY2d 36, 47). Since the record contains evidence sufficient in quantity and quality to support the verdicts, our review function is exhausted (see People v Gruttola, 43 NY2d 116, 122; People v Joyiens, 39 NY2d 197, 203).

Nor do we find grounds for reversal on the court’s evidentiary rulings. Defendant claims that the court erred in permitting evidence that Harry Terrell had cared for the victim’s son after the homicide and in limiting defense counsel’s cross-examination of Terrell about favorable treatment he expected from the authorities on pending criminal charges in exchange for his testimony in this action. Even if defendant’s contention be accepted, reversal is not required for there was no reasonable possibility that these rulings contributed to defendant’s conviction and thus they were harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 237). Harry Terrell’s character, particularly his extensive criminal activities, was fully developed for the jury. The jury also was told that he had been granted immunity for past crimes by the prosecutor and that the prosecutor had offered to contact other law enforcement authorities on his behalf after he testified against defendant. If defendant wished to pursue the subject further, counsel should have requested a voir dire to explain the area he wished to examine and the necessity for it.

Nor has defendant preserved for review by appropriate objections his further contentions that the court committed error in permitting Terrell to testify after an attempt to hypnotize him (see People v Hughes, 59 NY2d 523) and in permitting him to give hearsay testimony concerning the victim’s declarations of future intended conduct the night of the homicide (see Mutual Life Ins. Co. v Hillmon, 145 US 285). Defendant maintains that he has preserved his objection to the testimony concerning decedent’s future intention because at the beginning of the first trial the Judge ruled over his opposition that it would permit Harry Terrell to testify about statements made by decedent to him on the night of the crime that he intended to meet defendant that evening. He contends that this ruling constituted the law of the case and that it was binding on the parties and the court in the second trial before a new Judge.

Evidentiary rulings made at one trial, however, are normally not binding in a subsequent trial. In this case there is nothing in the record to indicate that the earlier ruling was brought to the attention of the second Judge or that he or counsel considered themselves bound by it. Nor did counsel object when Terrell testified concerning statements of the victim made the night of the crime. He did object to a statement of decedent’s intent made two weeks before the homicide, upon grounds of relevancy not competence, but at the time of that objection defense counsel stated that he had not objected to the earlier evidence of the victim’s statements made on the night of the crime because counsel considered them part of the res gestae. Accordingly, the point is not preserved for our review.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    In the Matter of Ullman Estates, Doing Business as Harper Management, as Managing Agent of Ullman Estates, Appellant, v New York City Conciliation & Appeals Board, Respondent.
    Decided May 10, 1984

      APPEARANCES OF COUNSEL

      Clifford A. Entes for appellant.

      Ellis S. Franke and Iris J. Korman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the opinion by Justice Arnold L. Fein at the Appellate Division (97 AD2d 296).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer Simons and Kaye.


text:
    In the Matter of Shinnecock Hills Golf Club, Inc., et al., Respondents, v Robert V. Nardy et al., Constituting the Zoning Board of Appeals of the Town of Southampton, Appellants, and Joseph F. Gazza et al., Intervenors-Respondents.
    Decided May 10, 1984

      APPEARANCES OF COUNSEL

      Timothy S. McCulley for appellants.

      Benjamin E. Carter and William Sharp for respondents, precluded.

      Douglas R. Penny for intervenors-respondents, precluded.
   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 (97 AD2d 849).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Lorraine McAuliffe et al., Appellants, v Francis J. Senn et al., Respondents. In the Matter of Michael J. Walker, Sr., et al., Appellants, v Sandra Le Fever et al., Respondents.
    Decided May 10, 1984
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, for mootness.