author: Jasen, J. Cooke, J. (dissenting).

text:
    Allied Maintenance Corporation, Appellant, v. Allied Mechanical Trades, Inc., Respondent.
    Argued September 8, 1977;
    decided October 18, 1977

      Emanuel Dannett, Robert I. Gosseen and Barbara E. Schlain for appellant.

      Howard C. Amron for respondent.
   Jasen, J.

We are called upon today to decide whether the trade name "Allied Maintenance” is entitled to protection pursuant to section 368-d of the General Business Law—commonly referred to as the anti-dilution statute.

The plaintiff, Allied Maintenance Corporation, has been in business, in one form or another, since 1888. Throughout the many years since its inception, Allied Maintenance has concentrated the scope of its services upon the cleaning and maintenance of large office buildings. The defendant, Allied Mechanical Trades, Inc., a corporation organized in 1968 as a successor to Controlled Weather Corporation, is engaged primarily in the installation and repair of heating, ventilating and air-conditioning equipment.

Alleging that the defendant performed maintenance services identical to those it performed, Allied Maintenance brought this action to enjoin Allied Mechanical from operating under the name "Allied” or "Allied Mechanical Trades, Inc.”, or using the word "Allied” in any way in connection with its business. The trial court granted the injunction, finding that the parties were actual and potential competitors in the cleaning and maintenance industry in the metropolitan New York City area and that the auditory and visual similarity between their names created a likelihood of confusion. On this basis, the court concluded that defendant’s use of the name Allied Mechanical would result in irreparable injury to plaintiffs reputation, good will, and proprietary business interests, and would thus constitute unfair competition. The Appellate Division reversed, however, finding an absence of either competition or confusion, actual or potential. The court concluded that "no user of the services of either party has been or may probably be confused or deceived by any similarity in the names of the parties.” (55 AD2d 865, 866.)

In addition to the protection of trade-marks and trade names afforded by the traditional actions for trade-mark infringement and unfair competition, New York, as well as a number of other States, has adopted an anti-dilution statute. (General Business Law, § 368-d.) This statute provides: "Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.” (Emphasis added.) The purpose behind the enactment of this statute was the prevention of trade-mark or trade name dilution—i.e., "the whittling away of an established trade-mark’s selling power and value through its unauthorized use by others upon dissimilar products.” (NY Legis Ann, 1954, p 49 [emphasis added].) In the absence of a statute of this nature, a plaintiff seeking to prohibit the use of a trade name by another would be required to frame his complaint within the strictures of an action for either trade-mark infringement or unfair competition. A brief review of the elements of these actions is useful in interpreting the legislative intent behind the enactment of section 368-d.

Historically, two causes of action have existed to protect the user of a trade-mark or trade name from its improper use by another—viz., trade-mark infringement and unfair competition. Trade-mark infringement developed as the remedy designed to protect technical trade-marks—i.e., those marks which were arbitrary, fanciful or coined. (See 3 Callman, Unfair Competition, Trademarks and Monopolies [3d ed], § 66.1.) Trade-marks such as "Kodak”, "Xerox”, "Exxon” and "Coke” would fall within this category. As the law evolved, the protection provided by an action for trade-mark infringement was supplemented by the formulation of a broader remedy—an action for unfair competition. (See Dell Pub. Co. v Stanley Pub., 9 NY2d 126, 133.) This remedy was intended to protect nontechnical, common-law trade-marks—marks used although not registered—as well as trade names. (1 Callman, Unfair Competition, Trademarks and Monopolies [3d ed], § 4.1.)

Today, in an action for trade-mark infringement brought pursuant to either New York (General Business Law, § 368-b) or Federal law (Lanham Act, § 32, subd [1], US Code, tit 15, § 1114, subd [1]), it is necessary to show that the defendant’s use of the trade-mark is likely to cause confusion, mistake or to deceive; actual confusion need not be shown. (See Dell Pub. Co. v Stanley Pub., 9 NY2d, at p 134, supra; James Burrough Ltd. v Sign of Beefeater, 540 F2d 266, 274; Bunn Co. v AAA Replacement Parts Co., 451 F2d 1254, 1261; General Mills v Regnery Co., 421 F Supp 359, 361; Chips 'n Twigs v Chip-Chip, 414 F Supp 1003, 1013.) Similarly, it has been held that in an action for unfair competition a showing of a likelihood of confusion, rather than actual confusion, is all that is required to state a cause of action. (See Dell Pub. Co. v Stanley Pub., 9 NY2d, at p 132, supra; Avon Shoe Co. v David Crystal, Inc., 279 F2d 607, 614; Field Enterprises Educ. Corp. v Grossett & Dunlap, 256 F Supp 382, 390.)

Since an action for infringement as well as an action for unfair competition both require a showing that the public is likely to confuse the defendant’s product or service with that of the plaintiff, relief may be difficult to secure in situations in which the parties are not in competition, nor produce similar products or perform similar services. It is for this reason that section 368-d specifically provides that an injunction may be obtained notwithstanding the absence of competition or confusion.

Generally, courts which have had the opportunity to interpret an anti-dilution statute have refused to apply its provisions literally. New York courts, State and Federal, have read into the statute a requirement of some showing of confusion, fraud or deception. (See, e.g., Cue Pub. Co. v Colgate-Palmolive Co., 45 Misc 2d 161, affd 23 AD2d 829; King Research v Shulton, Inc., 324 F Supp 631, affd 454 F2d 66; Geisel v Poynter Prods., 295 F Supp 331; but see National Lampoon v American Broadcasting Cos., 376 F Supp 733, affd 497 F2d 1343.)

Judicial hesitance to enforce the literal terms of the anti-dilution statute has not been limited to New York. In Illinois, for example, some courts have gone so far as to declare the statute inapplicable where the parties are competitors and a likelihood of confusion does exist. These decisions were premised upon the belief that a plaintiff who can frame his complaint under a theory of infringement or unfair competition— albeit unsuccessfully perhaps—should not succeed under a dilution theory. (See Filter Dynamics Int. v Astron Battery, 19 111 App 3d 299, 314-315; Edgewater Beach Apts. Corp. v Edgewater Beach Mgt. Co., 12 111 App 3d 526, 534; AlbertoCulver Co. v Andrea Dumon, Inc., 466 F2d 705, 709.) However, one court in Illinois has interpreted the anti-dilution statute literally, reasoning that unless recovery for dilution is permitted in the absence of competition or confusion the statute adds nothing to existing law. (Polaroid Corp. v Polaraid, Inc., 319 F2d 830, 836-837.) This approach has also been taken in Massachusetts. (See, e.g., Tiffany & Co. v Boston Club, 231 F Supp 836, 844; Clairol, Inc. v Cody’s Cosmetics, 353 Mass 385, 391.)

Notwithstanding the absence of judicial enthusiasm for the anti-dilution statutes, we believe that section 368-d does extend the protection afforded trade-marks and trade names beyond that provided by actions for infringement and unfair competition. The evil which the Legislature sought to remedy was not public confusion caused by similar products or services sold by competitors, but a cancer-like growth of dissimilar products or services which feeds upon the business reputation of an established distinctive trade-mark or name. Thus, it would be of no significance under our statute that Tiffany’s Movie Theatre is not a competitor of, nor likely to be confused with Tiffany’s Jewelry. (See NY Legis Ann, 1954, p 50, citing Tiffany & Co. v Tiffany Prods., 147 Misc 679, affd 237 App Div 801, affd 262 NY 482.) The harm that section 368-d is designed to prevent is the gradual whittling away of a firm’s distinctive trade-mark or name. It is not difficult to imagine the possible effect which the proliferation of various noncompetitive businesses utilizing the name Tiffany’s would have upon the public’s association of the name Tiffany’s solely with fine jewelry. The ultimate effect has been appropriately termed dilution.

Although section 368-d does not require a showing of confusion or competition to obtain an injunction, it does require a "likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or tradename.” (Emphasis added.) The statute prohibits any use of a name or mark likely to dilute the distinctive quality of a name in use. To merit protection, the plaintiff must possess a strong mark— one which has a distinctive quality or has acquired a secondary meaning which is capable of dilution. Courts interpreting Massachusetts’ anti-dilution statute—applying its terms literally—have required a showing that the trade-mark or name to be protected is either unique or has acquired a secondary meaning before issuing an injunction. (See, e.g., Skil Corp. v Barnet, 337 Mass 485, 491; Mann v Parkway Motor Sales, 324 Mass 151, 157.)

Turning to the case before us, it is quite apparent that the name "Allied” is a weak trade name. Rather than being distinctive, arbitrary, fanciful or coined, it is, in essence, generic or descriptive. Although the name "Allied” bespeaks of more originality than "maintenance”, it is nevertheless a common word in English usage today. There is nothing in the name "Allied Maintenance” itself which indicates that it is an inherently strong trade name susceptible to dilution. (See Dell Pub. Co. v Stanley Pub., 9 NY2d, at p 136, supra; Esquire, Inc. v Esquire Slipper Mfg. Co., 243 F2d 540, 543; Exquisite Form Inds. v Exquisite Fabrics of London, 378 F Supp 403, 415.) Nor can it be said that the name Allied Maintenance has acquired a secondary meaning. Plaintiff seeks to prevent the defendant from using the word "allied” in any connection with its business. To establish secondary meaning it must be shown that through exclusive use and advertising by one entity, a name or mark has become so associated in the mind of the public with that entity or its product that it identifies the goods sold by that entity and distinguishes them from goods sold by others. (Truck Equip. Serv. Co. v Fruehauf Corp., 536 F2d, at p 1219, supra.) A quick glance at the New York City phone directories will reveal the existence of at least 300 business entities in the metropolitan area incorporating the word "allied” in their trade name. In light of the large number of business entities using the generic term alliéd in their trade name, it cannot be said that the name "allied” has acquired a secondary meaning. We remain unconvinced that the public associates the word "allied” with the plaintiff’s cleaning and maintenance service.

In sum, although section 368-d should be interpreted literally to effectuate its intended purpose—protection against dilution—only those trade names which are truly of distinctive quality or which have acquired a secondary meaning in the mind of the public should be entitled to protection under the anti-dilution statute. "Allied Maintenance” cannot be said to have attained this stature.

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

Cooke, J. (dissenting).

I dissent, voting for a reversal of the Appellate Division order and reinstatement of the judgment of Trial Term granting an injunction in favor of plaintiff.

The majority’s analysis of section 368-d of the General Business Law, it is respectfully submitted, imposes a narrow, overly technical gloss on its terms and, in effect, dilutes the "anti-dilution” statute. For the reason that future litigants may suffer from this interpretation, a broader view is needed and, in my opinion, was intended.

In interpreting this legislation, the court should not overemphasize the importance of a memorandum in support of this statute (see NY Legis Ann, 1954, pp 49-51). That writing describes the author’s view of the purpose of the proposed legislation and enumerates various problems in the area of dilution of a trade name or trade-mark. Dilution of a trade name through sales of dissimilar products is illustrated by somewhat fanciful examples such as "Buick aspirin tablets”, "Schlitz varnish”, "Kodak pianos”, and "Bulova gowns” (p 49). Indeed, that dilution can occur even in the case of dissimilar products, as the memorandum notes (p 50), has long been recognized by our common law which granted the right to enjoin the use of another’s name even in the absence of competition (see, e.g., Tiffany & Co. v Tiffany Prods., 147 Misc 679, 681, affd 237 App Div 801, affd 262 NY 482). Nevertheless, if the statute was intended to "codify the State common law concerning dilution” (NY Legis Ann, 1954, p 49; see, also, 3 NY Law Forum, 313, 316), there is no basis for restricting its application in the manner suggested by the majority.

Dilution does not occur only in the case of a name that is widely known. To be sure, the name Tiffany would be diluted if many noncompeting businesses used that name. However, a less well-known name can also be diluted, perhaps in a more harmful and direct manner. And dilution can occur in instances where there is competition, though in that instance a more appropriate remedy will ordinarily be found under general principles of unfair competition. The difficult case is where a specialized business, with a generic name used in other unrelated businesses, is used by a relatively small segment of the public who rely on its name. The problem occurs when that business is confronted with a newer company, bearing the same or a similar name, engaging in a field that, while perhaps noncompeting, is so closely related to that of the more established business that its customers will identify its name with the newcomer. This is such a case.

It is asserted that the legislative intent was to remedy "not public confusion caused by similar products or services sold by competitors, but a cancer-like growth of dissimilar products or services which feeds upon the business reputation of an established distinctive trade-mark or name” (p 544). It is then concluded that Allied is not sufficiently distinctive but rather is "a weak trade name” (p 545). But the terms of the statute do not require this interpretation and the protection it affords should be available to plaintiff based on the facts of this case.

While the trial court determined that plaintiff and defendant are actual and potential competitors, the Appellate Division majority found that the parties are not competitors in their own peculiar specialties nor are they likely to be. Whichever view of the facts one takes, however, it is apparent that the businesses are closely related. There is no basis in the statutory language for concluding that the enactment was not intended to provide a remedy for confusion caused by similar (though perhaps not actually competing) services such as these. The statute provides a remedy "notwithstanding the absence of competition” but does not mandate that in order to benefit from its provisions there must be no competition or dissimilar services, as urged to the contrary. Therefore, if plaintiff’s name is of a distinctive quality, it is entitled to a remedy under the anti-dilution statute.

It is wrong to conclude that the name Allied Maintenance is not "an inherently strong trade name susceptible to dilution” (p 545). Of course its name is not as unique as other names held capable of dilution, but it is, to a limited audience, as distinctive as many others. The word Allied is a generic term but, as the trial court determined, that name has long been associated by the public, including customers and competitors in the building cleaning and maintenance industry, with plaintiff and its subsidiaries. Even a generic or descriptive name may acquire a secondary meaning in a given circumstance (see Columbia Broadcasting System v Columbia of N. Y., 97 NYS2d 455, affd 277 App Div 856; Metropolitan Opera Assn. v Pilot Radio Corp., 189 Misc 505, 508 [Shientag, J.]). That plaintiff’s name is not distinctive enough to allow it to prevent its use by others in noncompeting industries should not be a ground for allowing one in a closely related business to dilute the distinctive quality of its name in its field.

The majority opinion may be read as limiting the statute in question to the protection of only the most well-known names, such as Tiffany, of which there are few, from dilution by noncompeting products or services. The common law of the State has not so narrowed the protection afforded to less unique names and the fact that the statute operates even in the absence of competition does not, as noted, mean that it should have no effect where there is potential, if not actual, competition. A good illustration of this point is Long’s Hat Stores Corp. v Long’s Clothes (224 App Div 497). There, the plaintiff conducted a business of selling retail hats and haberdashery and, although it had discontinued its sales of clothing, it declared an intention to resume that branch of its business. The plaintiff there had developed a trade name and had a number of retail stores to which customers were attracted by the name "Long’s”. Some 22 years later, an individual engaged in the retail clothing business incorporated a business which maintained a retail clothing shop called "Long’s Clothing”. In granting an injunction to protect plaintiff’s name, the Appellate Division reasoned (p 498): "In this case the plaintiff is damaged because the articles sold by the defendant are so closely related to those presently sold by the plaintiff and so identical with those which the plaintiff has sold and intends to sell in the future, that there is direct appropriation of the plaintiff’s good will. In the enjoyment of its trade name the plaintiff is to be protected not only with respect to the merchandise it presently sells, but also with respect to that which the public would believe, through the deception practiced by the defendant, that the plaintiff was selling. When a trade mark has been used by the owner and by another on goods of the same class, 'though different in species, the question whether they are so closely related—so near akin—as to be regarded as having the "same descriptive properties’ arises.” ’ (Rosenberg Bros. & Co. v. Elliott, 7 F. [2d] 962, 964.)”

The circumstances here are closely analogous. The name Allied, like the name Long’s, is not so unique that all would know its business, but it is known to a segment of the public that makes use of the service of cleaning and maintenance of buildings. After plaintiff was in business for many years, defendant entered into a related area and, depending upon whether one accepts the view of the Appellate Division majority or the trial court, may provide in some instances the same services. The use of a name associated with a particular business by one in a closely related field is a dilution of a less well-known name and is of no less significance to the particular plaintiff than use of an extremely well-known trade name by a totally unrelated business. This is the rationale underlying the holding in Long’s (supra), a case that has been regarded as a forerunner of the anti-dilution theory (see NY Legis Ann, 1954, p 50; Tiffany & Co. v Tiffany Prods., 147 Misc, at p 681, supra). Section 368-d of the General Business Law was intended to codify cases such as Long’s and that is why the statute should be applicable here.

Plaintiff should be granted the relief it seeks because, as a result of the similarity of names, those using defendant’s services may well be confused as to the source. But the cause of action would not necessarily fail even if the two could be distinguished. Under the statute recovery is allowed even in "the absence of confusion” and, despite any suggestion to the contrary, this State’s appellate courts have not expressed acceptance of any reading into the statute of a requirement of some showing of confusion (see Cue Pub. Co. v Colgate-Palmolive Co., 23 AD2d 829, affg on more limited grounds 45 Misc 2d 161 [cited by majority, p 544]).

To conclude, prior to enactment of the statute in question, in cases of this sort it was not determinative that a generic or descriptive name was so commonly used that the plaintiff could not prevent its use by unrelated businesses. For example, an injunction was granted against another business’ use of the name Columbia, a word that, like Allied, is commonly found in the title of many businesses (see, e.g., Columbia Broadcasting System v Columbia of N. Y., 277 App Div 856, supra; see, also, Metropolitan Opera Assn. v Pilot Radio Corp., 189 Misc 505, supra). Moreover, the prestatutory cases recognized that a trade name should be protected from businesses that offer similar products or services (see Long’s Hat Stores Corp. v Long’s Clothes, 224 App Div 497, supra), and that is the situation faced by plaintiff in this matter. Section 368-d of the General Business Law was intended to make clear the broad reach of our State’s case law, which protected trade names even in the absence of competition, but, as noted in the memorandum relied on by the majority as indicative of the legislative intent, the statute is "essentially * * * a codification of common law” (NY Legis Ann, 1954, p 50). Therefore, interpreting the statute in light of the State’s common law, it is submitted that under the circumstances of this case plaintiff is entitled to the relief it seeks. Accordingly, for the reasons stated, the order of the Appellate Division should be reversed.

Judges Gabrielli, Jones and Fuchsberg concur with Judge Jasen; Judge Cooke dissents and votes to reverse in a separate opinion in which Chief Judge Breitel and Judge Wachtler concur.

Order affirmed, with costs.

      . (Ark Stat Ann, § 70-550; Cal Business & Professional Code, § 14330; Conn Gen Stat Ann, § 35-1 li, subd [c]; Del Code, tit 6, § 3313; Fla Stat Ann, § 495.151; Idaho Code, § 48-512; 111 Rev Stat, ch 140, § 22; Iowa Code Ann, § 548.11, subd 2; Mass Gen Laws Ann, ch HOB, § 12; Mo Ann Stat, § 417.061; Neb Rev Stat, § 87-122; NH Rev Stat Ann, § 350-A:12; NM Stat Ann, § 49-4-11.2; Ore Rev Stat, § 647.107; RI Gen Laws, § 6-2-12.) Although minor differences in wording exist, each of these statutes is a substantive duplicate of New York’s anti-dilution statute.

      . At one time fine distinctions existed between trade-marks, technical and nontechnical, and trade names. Only a technical trade-mark could be registered and protected via an action for infringement. But today, it is recognized that nontechnical marks and trade names are also registrable and can be protected in an action for infringement. (3 Callman, Unfair Competition, Trademarks and Monopolies, [3d ed], § 66.1.) However, since a trade name or nontechnical trade-mark cannot claim the procedural advantages (see Dell Pub. Co. v Stanley Pub., 9 NY2d, at p 133, supra) afforded a technical mark, it is necessary to show in an action for infringement that the name or mark has acquired a secondary meaning. Secondary meaning can be established by showing that notwithstanding the absence of an arbitrary, fanciful or coined expression, a trade-mark or trade name has, through exclusive use and advertising by one entity, become so associated in the mind of the public with that entity or its product that it identifies the goods sold by that entity and distinguishes them from goods sold by others. (Truck Equip. Serv. Co. v Fruehauf Corp., 536 F2d 1210, 1219, cert den 429 US 861; Shoppers Fair of Ark. v Sanders Co., 328 F2d 496, 499; Merriam Co. v Saalñeld, 198 F 369, 373; Liberty Mut. Ins. Co. v Liberty Ins. Co. of Tex., 185 F Supp 895, 903.)
      In addition to the erosion of technical distinctions in the theory of infringement, the gravamen of an action for unfair competition has also undergone a liberalization. At one time it was necessary to show in an action for unfair competition that plaintiff's trade-mark or trade name had acquired a secondary meaning. Gradually, courts have begun to recognize that, in essence, an action for unfair competition turns not upon the acquisition of a secondary meaning, but upon whether the acts of the defendant can be characterized as unfair. (See International News Serv. v Associated Press, 248 US 215; Sample, Inc. v Porrath, 41 AD2d 118, affd 33 NY2d 961.)


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Appellant, v William Abruzzi, Respondent.
    Argued March 23, 1977;
    decided May 12, 1977

      John R. King, District Attorney (Bridget R. Rahilly of counsel), for appellant.

      Robert G. Morvillo and Betty J. Santangello for respondent.
   Concur: Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke. Judge Jasen dissents and votes to reverse in the following memorandum: I would reverse the order of the Appellate Division and reinstate the judgment of conviction for the crime of sexual abuse in the first degree for the reasons stated in the opinion by Judge Joseph Jiudice of the Dutchess County Court. I also agree with so much of the dissenting opinion by Mr. Justice James D. Hopkins at the Appellate Division as states that the doctrine of the taint of the poisonous tree should not be extended to include evidence of the personal observation by a police officer of a crime committed in his presence.


text:
    The People of the State of New York, Respondent, v Dixon Frick Burden, Appellant.
    Argued April 27, 1977;
    decided May 12, 1977

      George Washington Herz for appellant.

      Nicholas Ferraro, District Attorney (David G. Zucker of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


author: Jasen, J. (dissenting).

text:
    Board of Education of the City School District of the City of Lockport, Appellant, v Peter J. Licata, Respondent.
    Argued March 30, 1977;
    decided May 12, 1977

      Anthony L. Pusateri for appellant.

      Gordon Gannon, Jr., for respondent.
   Memorandum. The rules and regulations of plaintiff board of education, which have the force of law unless in conflict with statute (Education Law, § 2503; Matter of Stone v Gross, 25 AD2d 753, affd 19 NY2d 675), permit military leaves at any time during the school year if "such training and participation cannot be arranged during periods when schools are closed”. In application it is not necessarily inconsistent with the privileges and benefits conferred by section 242 of the Military Law. This section does not preclude a public employer from adopting reasonable regulations to achieve a coordination of the requirements of the Military Law and the convenience of a public employer whose employees are called upon to report for optional "ordered military duty”. Of course, if the two are in conflict, the Military Law must control.

We read the board’s regulation here as intended to accomplish its purpose in harmony and not in conflict with section 242. Thus, in the absence of any showing that a public employee has contrived, whether by planned acquiescence or other means, direct or indirect, to arrange for the fixing of dates for his military duty at a time inconvenient to the needs of his employer, an employee will not have violated the regulation. But the record made on the motion for summary judgment, including the evidence of defendant’s practice of requesting June military duty in years preceding 1974, was not sufficient to demonstrate as a matter of law that the defendant had or had not violated the regulation.

Accordingly, the order of the Appellate Division should be reversed and the order of the Supreme Court reinstated.

Jasen, J. (dissenting).

I dissent and vote to affirm the order of the Appellate Division. The Military Law specifically states, in the most straightforward and direct terms, that "[ejvery public officer or employee shall be entitled to absent himself and shall be deemed to have a leave of absence from his duties or service as such public officer or employee while engaged in the performance of ordered military duty and while going to and returning from such duty.” (Military Law, § 242, subd 2.) Ordered military duty has been legislatively defined to include both any period of military duty of whatever duration served pursuant to orders issued without the employee’s consent, as well as a period of 30 days’ military service within any one calendar year "regardless of whether such orders are or may be issued with the consent of such public officer and employee”. (Military Law, § 242, subd 1, par [b], els [1], [2].) In short, the Legislature has provided that an employee is entitled to one military leave of absence of 30 days duration per calendar year even where the employee consented to the military orders. Further, every public officer must be paid his regular compensation for any and all periods of absence while engaged in the performance of ordered military duty for a period not exceeding 30 days in any one year and not exceeding 30 days in any one continuous period of absence. (Military Law, § 242, subd 5.)

In my view, the board of education’s regulation that military leave may be taken only where such leave is compatible with the school calendar is in plain conflict with governing statute and cannot be sustained. The statute, on its face, authorizes public employees to absent themselves from work for 30 days due to military service even in cases where the employee consented to the service. The Legislature has provided that public employees are entitled to leave of absence under such circumstances and did not impose any requirement that the prior approval of the employing agency be obtained. In fact, there is no requirement that an employee even give an employer notice. Thus, if the employee just simply fails to appear for work due to military commitments, his employer must deem the employee to be on military service. This is what the legislative program provides.

A caveat that the employee’s leave be taken only when it suits the employer is reasonable and, perhaps, desirable. However, it is not what the Legislature provided. The Legislature has deliberately chosen to leave the question of scheduling of short leave ^periods to the sole discretion of the military, even where the employee consents to or requests the order of the military authorities. While the application of the statute in particular cases may work an injustice, the temptation in the courts to rewrite valid statutes to better reflect private views of proper policy should be resisted. The judicial role is a limited one. It is not our proper function to apply only those laws with which we happen to agree. Here, the Legislature acted plainly and unequivocally. There is no contention that the statute is unconstitutional. In short, we should not, under the guise of interpretation, redraft the statute to suit our own policy preferences. If application of the statute is unjust, the appropriate forum for relief is the Legislature itself. For these reasons, as well as those stated in the opinion of Mr. Justice Michael F. Dillon at the Appellate Division (53 AD2d 207), I vote to affirm the order of the Appellate Division.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Jasen dissents and votes to affirm in a separate opinion in which Judge Cooke concurs.

Order reversed and the order of Supreme Court, Niagara County, reinstated, with costs to abide the event in a memorandum.


text:
    Steven D. Johnson, an Infant, by His Father and Natural Guardian, Walter Johnson, et al., Appellants, v Yeshiva University et al., Respondents. City of New York, ThirdParty Defendant-Respondent.
    Argued March 28, 1977;
    decided May 12, 1977

      Beth J. Goldmacher and Norman H. Dachs for appellants.

      Norman Bard and Sidney Voletsky for defendants-respondents.

      W. Bernard Richland, Corporation Counsel (Bernard Bur-stein and L. Kevin Sheridan of counsel), for third-party defendant-respondent.
   Memorandum. The plaintiff mother gave birth to the infant plaintiff, who, born a "cri-du-chat” child, was doomed by that condition to a life of helpless physical and mental retardation. This action, brought by the child and its parents, is grounded on defendants’ alleged medical malpractice in failing, when consulted for genetic counseling during the course of the pregnancy, to have advised and performed an amniocentesis, a diagnostic procedure which the plaintiffs assert would have revealed that the child the mother was bearing was afflicted with a chromosomal defect which preordained its abnormality and, on the basis of which, an informed decision could have been made as to whether an abortion that would terminate the fetus’ existence should be obtained.

Aside from the issues of negligence and proximate cause which they thereby seek to raise, plaintiffs’ suit would have us freshly examine or re-examine a complex of legal questions. Among them is whether each of the parents has a cause of action to recover damages for the emotional effect produced on them by the birth of their deformed child and for the general and special damages that will have been occasioned to them in its rearing (see Chapman v Schultz, 47 AD2d 806, decided on authority of Ziemba v Steinberg, 45 AD2d 230 [3-2 decision]). A subsidiary question is whether one or more of these categories of damages is too speculative to support a recovery. Posited too is whether the scope of the duty owed by the defendants flows directly to the patient-mother who was the object of the consultation, or whether her role is to be analogized to that of a bystander to an accident who witnesses injury to another (cf. Tobin v Grossman, 24 NY2d 609).

Also presented is whether, conceptually, an unborn child may have a recognizable legal right to recover for a "wrongful life”. The seemingly metaphysical or imponderable queries that would result from such a concept could conceivably lead to alternative damage theories, including one that would require the evaluation of the difference between a life of physical and mental impairment and one of a person who never is born (Note, A Cause of Action for "Wrongful Life”: A Suggested Analysis, 55 Minn L Rev 58; see Stewart v Long Is. Coll. Hosp., 35 AD2d 531, affd 30 NY2d 695; Gleitman v Cosgrove, 49 NJ 22).

And, preferred here too is the near-threshold question of whether the public policy considerations inherent in the statutory ban on abortion as it existed in this State in 1969, when the birth here took place (former Penal Law, § 125.05; cf. former Education Law, § 6514, subd 2, par [e]; L 1967, ch 680, § 22), reached out to affect abortions of pregnancies obtainable by New York parents in other jurisdictions where such procedures were then permitted by law (see Stewart v Long Is. Coll. Hosp., supra).

But, however interesting those questions may otherwise be, we cannot reach them here. For our review of the record does not demonstrate that an issue of fact was raised by the plaintiffs in the face of the uncontroverted showing by the defendants that, on the basis of the patient’s medical history and the state of medical knowledge regarding the use of the amniocentesis test in 1969, the defendants’ failure to perform the test was no more than a permissible exercise of medical judgment and not a departure from then accepted medical practice (Pike v Honsinger, 155 NY 201).

Accordingly, the order of the Appellate Division, which dismissed the six causes of action here on appeal, must be affirmed.

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

Order affirmed, with costs, in a memorandum.

       Two of plaintiffs eight causes of action—for failure to promptly notify the parents of the birth of their abnormal child—are not the subject of this appeal.


text:
    In the Matter of the County of Suffolk, Respondent, Relative to Acquiring Title to Real Property at Northwest Harbor in the Town of East Hampton. Eva Firester et al., Appellants.
    Submitted April 29, 1977;
    decided May 12, 1977

      Samuel Goldstein for appellants.

      Howard E. Pachman, County Attorney (John N Prudenti of counsel) for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Genevieve H. W. Miner, as Executrix of Roy P. Warren, Deceased, Appellant, v William S. Merrell Co. et al., Respondents.
    Argued April 1, 1977;
    decided May 12, 1977
   Appeal dismissed, with costs, upon the ground that the order appealed from involves questions of discretion of the type not reviewable by the Court of Appeals (see Patron v Patron, 40 NY2d 582, 584; Cohen and Karger, Powers of the New York Court of Appeals, § 147, pp 584-587; cf. Travelers Ind. Co. v Central Trust Co. of Rochester, 38 NY2d 895.


text:
    Bernadine L. Tallman, as Administratrix of the Estate of Alfred B. Tallman, Deceased, Appellant, v William S. Merrell Co. et al., Respondents.
    Argued April 1, 1977;
    decided May 12, 1977
   Appeal dismissed, with costs, upon the ground that the order appealed from involves questions of discretion of the type not reviewable by the Court of Appeals (see Patron v Patron, 40 NY2d 582, 584; Cohen and Karger, Powers of the New York Court of Appeals, § 147, pp 584-587; cf. Travelers Ind. Co. v Central Trust Co. of Rochester, 38 NY2d 895).


text:
    Robert H. Burrows, Jr., Appellant, v St. Luke’s Memorial Hospital Center, Respondent.
    Submitted April 18, 1977;
    decided May 12, 1977
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from involves an exercise of discretion of a type not reviewable by the Court of Appeals (Tallman v Merrell Co., 42 NY2d 822; Travelers Ind. Co. v Central Trust Co. of Rochester, 38 NY2d 895; Solomon v Perkins, 39 NY2d 922).


text:
    In the Matter of Peter Toro, Respondent, v Benjamin J. Malcolm, as Commissioner of the Department of Correction of the City of New York, et al., Appellants.
    Decided May 12, 1977
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of Steele v Board of Educ., 40 NY2d 846; Matter of Clayton v Board of Educ., 40 NY2d 842).


text:
    Betty O. Muka, Appellant, v De Forest Heffron, as President of the Ithaca Teachers Association, et al., Respondents.
    Submitted April 25, 1977;
    decided May 12, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground it does not lie as of right.


text:
    Frances Glick, Appellant, v City of New York et al., Respondents.
    Argued April 26, 1977;
    decided June 2, 1977

      Bernard Meyerson, Lawrence M. Rosenberg and Gustave G. Rosenberg for appellant.

      W. Bernard Richland, Corporation Counsel (Bernard Abel and L. Kevin Sheridan of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Terry Contracting, Inc., et al., Respondents, v Arthur Levitt, as Comptroller of the State of New York, Respondent, and Royal State Bank of New York, Appellant.
    Argued April 26, 1977;
    decided June 2, 1977

      Miles F. McDonald and James J. A. Gallagher for appellant.

      Julius L. Schapira, Max E. Greenberg, Joseph A. Cutro and Eugene H Goldberg for petitioners-respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg. Taking no part: Judge Cooke.


text:
    The People of the State of New York, Respondent, v Jose Ramos, Also Known as Alfredo Ortiz, Appellant.
    Argued April 27, 1977;
    decided June 2, 1977

      Jo Ann Davis and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Ellen M. Coin of counsel), for respondent.
   Memorandum. In light of the invulnerable finding that the witness Carmen Jiminez had ample opportunity to observe the defendant at the time of the burglary, we hold that her in-court identification of the defendant had an independent source and was not tainted by any suggestive identification at the station house (see People v Cobenais, 39 NY2d 968; People v Carter, 30 NY2d 279, 283; cf. Neil v Biggers, 409 US 188, 199-201).

We also reject the defendant’s claim, made at the Appellate Division and in this court, that the in-court identification by the witness Norma Jiminez was tainted by a suggestive confrontation while testifying at the identification suppression hearing. The hearing Judge, who, of course, was afforded the opportunity to observe her while she testified, found that her identification was the product of her own independent recollection and was not tainted by any improper confrontation. This finding, too, was affirmed by the Appellate Division. It is of interest to also note that when asked at the hearing if she saw the man who perpetrated the crime in the courtroom, and when she then identified the defendant, no question was then raised as to the propriety of this procedure.

Finally, we find no merit to defendant’s contention that the Trial Judge improperly marshaled the evidence (compare People v Bell, 38 NY2d 116).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Cooke dissents and votes to reverse for the reasons stated in the dissenting memorandum by Mr. Justice Charles Margett at the Appellate Division (52 AD2d 640-645).

Order affirmed in a memorandum.


text:
    In the Matter of Ruth B. Kaufman, Appellant, v Irving Anker, as Chancellor of Schools of the New York City School District, et al., Respondents.
    Argued April 25, 1977;
    decided June 2, 1977

      Nancy R Hoffman and James R. Sandner for appellant.

      W. Bernard Richland, Corporation Counsel (Lawrence B. Jones and L. Kevin Sheridan of counsel), for respondents.
   Memorandum. The order of the Appellate Division should be affirmed, with costs.

We note that respondents do not here assert "an unfettered right to terminate the employment of a teacher during his probationary period, unless the teacher establishes that the [chancellor] terminated for a constitutionally impermissible purpose or in violation of statutory proscription” (James v Board of Rduc., 37 NY2d 891, 892). In this circumstance the proper standard for judicial review of the action of the Chancellor of Schools of the New York City School District in terminating appellant’s appointment as a probationary teacher, because she had no right to continued appointment, is whether his action was arbitrary and capricious rather than whether it is supported by substantial evidence in the record. (Contrast subd 3 with subd 4 of CPLR 7803; see 8 Weinstein-Korn-Miller, NY Civ Prac, pars 7803.04, 7803.07, 7803.11-7803.13.)

We note that the by-laws of the board of education provide for a hearing at which the probationary teacher is entitled to appear and to present evidence. This hearing procedure is advisory rather than determinative; the proof is heard by the hearing committee rather than by the chancellor; and appellant concedes that the chancellor does not have to follow the recommendations of the hearing committee. It is the chancellor, not the hearing committee, who makes the determination. In these circumstances the hearing provided for by the bylaws is not a hearing within the contemplation of CPLR 7803 (subd 4); it therefore suffices if the chancellor’s decision is not arbitrary and capricious.

In the present case, inasmuch as appellant’s principal recommended that her services be discontinued and the district superintendent concurred in that recommendation, it cannot be said that the chancellor’s action was arbitrary and capricious.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Robert Coleman, Appellant.
    Argued April 27, 1977;
    decided June 2, 1977

      Daniel J. Bernstein and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Michael J. Halberstam of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

While the conduct of the Trial Judge cannot be described as commendable, in our view neither were his intrusions (to the extent that protest was made, expressly or by reasonable implication) such as to work a denial of defendant’s right to a fair trial. Nor is there any substance to defendant’s claim that subdivision 4 of section 160.15 of the Penal Law is unconstitutional (People v Clark, 41 NY2d 612). We have examined defendant’s other contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of White Plains Nursing Home, Respondent-Appellant, v Robert P. Whalen, as Commissioner of Health, et al., Appellants-Respondents.
    Argued April 25, 1977;
    decided June 2, 1977

      Louis J. Lefkowitz, Attorney-General (Clifford A. Royael and Ruth Kessler Toch of counsel), for appellants-respondents.

      Patrick W McGinley, Suzanne Antippas and James C. Sweeney for respondent-appellant.
   Memorandum. The order of the Appellate Division should be affirmed.

At this stage the case presents a very narrow issue. We are not concerned with the proper procedure to be followed in future cases in which reimbursement rates are to be fixed as the commissioner has now adopted a regulation providing for a hearing when a proposed rate revision is disputed (10 NYCRR 86-2.7, eff Jan. 25, 1977). The question is simply whether under all the circumstances of this case the courts below erred in directing a hearing in the absence of express statutory or regulatory requirement.

The commissioner has determined that the lease between the petitioner and its landlord is not an arm’s length transaction and that, pursuant to regulation, the Medicaid reimbursement rate should be reduced to reflect the true cost of renting the premises. It is not disputed that the commissioner has power to adopt a regulation and then to interpret and enforce it. The petitioner’s objection is that the ultimate determination in this instance is based on an erroneous, or at least disputed, question of fact regarding the nature of the relationship between the petitioner and its landlord. The determination it should be noted affects the petitioner in two respects. First, it reduces the rate of future reimbursement. Secondly, it provides for further, interim, reduction of the rate to recoup alleged overpayments already authorized and received. This latter consequence in particular, regarding recoupment, would affect petitioner’s substantial interests so that it would be apporpriate to provide a hearing to resolve the factual dispute.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Marjorie D. Steele, Respondent, v Board of Education of the Valhalla Union Free School District, Appellant.
    Argued April 26, 1977;
    decided June 2, 1977

      William D. Sporborg, Jr., for appellant.

      Stephen A. Perelson and Michael C. Ehrlich for respondents.

      Bernard T. McGivern for New York State School Boards Association, Inc., amicus curiae.

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


text:
    The People of the State of New York, Respondent, v Horace Johnson, Appellant.
    Argued April 28, 1977;
    decided June 2, 1977

      Rowan Peter Kirchheimer and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (George P. Mc-Keegan and Peter L. Zimroth of counsel), for respondent.
   Memorandum. We need not reach the issue of the propriety of the conduct of the police in destroying tape recordings of various conversations with the defendant, based upon their independent judgment that the tapes were inaudible and contained no exculpatory material, since this issue was not preserved for our review (cf. People v Tutt, 38 NY2d 1011, 1013).

The only objections raised by defendant related to certain procedures which the court, at a pretrial hearing, announced it planned to use at the trial in determining the relationship between the tapes and certain police reports. At the trial, however, defendant made no inquiry at all with respect to the tapes, nor did he request their production. Further he failed to request any charge regarding the tapes or make any posttrial motions concerning them. In sum, the defendant raised no issue in connection with the tapes calling for a ruling or instruction by the trial court. Thus, there are no reviewable rulings at issue before us on this appeal (CPL 470.35, subd 1).

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

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

Order affirmed in a memorandum.


text:
    In the Matter of the Claim of Nicholas Kominski, Respondent. Louis L. Levine, as Industrial Commissioner, Appellant.
    Argued April 29, 1977;
    decided June 2, 1977

      Louis J. Lefkowitz, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester of counsel), for appellant.

      Anthony J. Gigliotti, for respondent.
   Memorandum. We agree with the Appellate Division that the Unemployment Insurance Appeals Board misinterpreted and misapplied subdivision 2 of section 598 of the Labor Law (L 1972, ch 396). The statute by its terms only applies when the Secretary of Labor of the United States finds that the application of subdivision 1 (Labor Law, § 598) is in conflict with the requirements of Federal law.

The history of the statute, as traced by the Appellate Division in its opinion, indicates that this was the sole intent of the Legislature in enacting subdivision 2. Since the Secretary of Labor made no finding as contemplated by the statute, there was no basis for recoupment of the moneys paid to the claimant.

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

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Albert Roy Rock, Appellant.
    Argued April 28, 1977;
    decided June 2, 1977

      Peter E. Murphy for appellant.

      Joseph W. Kelley, District Attorney (Kathleen H Casey of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Walter J. Coates, Appellant, v Gordon M. Ambach, as Acting Commissioner of Education of the State of New York, et al., Respondents.
    Argued April 29, 1977;
    decided June 2, 1977

      Stephen M. Cleary for appellant.

      Louis H. J. Welch and Robert D. Stone for Gordon Ambach, respondent.

      William Goldman for Board of Education of the City School District of the City of Auburn, respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of the Claim of Carolyn Wheeler, Appellant, v Stewart Mapping Service et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted April 29, 1977;
    decided June 2, 1977

      Gerald Herman for appellant.

      Philip J. Caputo for employer and carrier, respondents.
    No appearance for Workmen’s Compensation Board, respondent.
   Memorandum. Since a judgment of the court of a sister State can be attacked collaterally for lack of jurisdiction (Williams v North Carolina, 325 US 226, 229), we must look to the law of Tennessee in order to determine whether its Chancery Court was possessed of the power to vacate the decree dissolving the marriage between the claimant and her husband (Adam v Saenger, 303 US 59, 62; Spadaro v Newark Ins. Co., 21 AD2d 226, 229, affd 15 NY2d 1000).

In this case such an examination discloses that the Tennessee Chancery Court is without authority to set aside a divorce decree after the lapse of 30 days from the entry of its order (Tenn Code Crim, § 27-111; see Ellis v Ellis, 212 Tenn 116, 117; cf. Shipley v Barnett, 161 Tenn 437). Accordingly, that court was without power to vacate its divorce decree here 17 months after it had been granted, which was also 16 months after the husband had died. Therefore, its decree purporting to do so is not entitled to full faith and credit (see Restatement, Conflict of Laws 2d, §§ 104, 105). It follows that the order of the Appellate Division must be affirmed.

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

Order affirmed, with costs, in a memorandum.


text:
    State Division of Human Rights, Respondent, v Jamestown Telephone Corporation, Appellant.
    Submitted May 2, 1977;
    decided June 7, 1977

      William C. Moul and William R. Blood for appellant.

      Beverly Gross and Ann Thacher Anderson for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of the County of Nassau, Respondent, Relative to Acquiring Title to Real Property for the Mill Neck Conservation of the Area of Open Space and Excess Land in the Incorporated Village of Bayville, Town of Oyster Bay. Eveandra Enterprises, Inc., Appellant.
    Argued May 2, 1977;
    decided June 7, 1977

      Samuel Goldstein for appellant.

      James M. Catterson, Jr., County Attorney (Natale C. Tedone and Matthew A. Tedone of counsel), for respondent.
   Memorandum. We agree with the Appellate Division that claimant has not demonstrated that the validity of the statutory prejudgment interest rate of 6% is constitutionally infirm. Compensation accruing at the time of vesting and for the period prior to an award in a condemnation proceeding "is payable as a substitute for the beneficial use of real property” (Matter of Rochester Carting Co. v Levitt, 36 NY2d 264, 268). Such compensation is awarded in these cases upon the theory that it is necessary to make it full compensation for the loss sustained by the landowner, and we are unable to agree with the claimant that the statutory rate of interest as provided in subdivision 2 of section 3-a of the General Municipal Law and section 16 of the State Finance Law is in conflict with the constitutional right of just compensation. The result we here reach is not unreasonable and lends stability to the mandate for the payment of full and equitable compensation as fixed by the Legislature. The appropriate interest rate is not measured by particular fluctuations in categories of interest rates for public or private securities or lending. So long as the statutory rate constitutes a judicially acceptable, fair return for the deprivation of the use of that property or the money equivalent of that use, either or in combination, the statutory rate should be considered proper.

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

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

Order affirmed.


text:
    In the Matter of John Suffel, Appellant, v New York City Police Department, Respondent. In the Matter of Joseph Ferrigina, Appellant, v New York City Police Department, Respondent.
    Submitted April 29, 1977;
    decided June 7, 1977

      Dudley Gaffin for appellants.

      W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan and Irving Cohen of counsel), for respondent.
   Memorandum. The judgments of the Appellate Division should be affirmed, with costs.

In each case the findings of guilt were supported by substantial evidence on the entire record and there was no abuse of discretion as to the discipline imposed (Matter of Pell v Board of Educ., 34 NY2d 222). The term "public employee” in subdivision 1 of section 63 of the Pari-Mutuel Revenue Law (L 1940, ch 254, as added by L 1954, ch 514) refers, of course, to the employment relation in the public sector—here that of patrolmen in the New York City Police Department—and not to any status in horseracing activities. Nor does the fact that the State Harness Racing Commission issued licenses to appellants operate to excuse their violation of the statute in these disciplinary proceedings.

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

In each case: Judgment affirmed.


text:
    New York State Hairdressers & Cosmetologists Association, Inc., et al., Respondents, v Mario Cuomo, as Secretary of State of the State of New York, Appellant, and New York State Association of Barbers, Intervenor.
    Argued May 2, 1977;
    decided June 7, 1977

      Louis J. Lefkowitz, Attorney-General (Burton Herman and Samuel A. Hirshowitz of counsel), for appellant.

      Joseph Eisinger for respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Board of Education, Lakeland Central School District of Shrub Oak, Appellant, v Lakeland Federation of Teachers, Local 1760, American Federation of Teachers, AFL-CIO, Respondent.
    Argued May 3, 1977;
    decided June 7, 1977

      Murray Steyer for appellant.

      Thomas C. Greble and James R. Sandner for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    Carl Erca et al., Appellants, v State of New York, Respondent.
    (Claim No. 58867.)
    Argued April 29, 1977;
    decided June 7, 1977

      Louis-Jack Pozner, Lawrence M. Rosenberg and Gustave G. Rosenberg for appellants.

      Louis J. Lefkowitz, Attorney-General (Dennis Hurley and Ruth Kessler Toch of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


text:
    In the Matter of Charles J. Hynes, as Deputy Attorney-General for Health, Social Services and Nursing Homes, Respondent, v Roland Lerner, Appellant.
    Submitted May 26, 1977;
    decided June 7, 1977
   Motion for a stay denied as unnecessary (CPLR 5519, subd [e]; DPI Communications v Greenberg, 41 NY2d 902, 1017).


text:
    In the Matter of the Estate of Palma Sylvestri, Deceased. Louise Patti, Appellant; Rocco J. Sylvestri et al., Respondents.
    Submitted March 14, 1977;
    decided June 7, 1977
   Motion to dismiss the appeal herein denied.


text:
    Robert A. Ross et al., on Behalf of Themselves and All Other Persons Similarly Situated, Appellants, v Amrep Corporation et al., Respondents.
    Decided June 7, 1977

      Schoengold & Sporn for appellants.

      Jacobs, Persinger & Parker for respondents.
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Helaine E. Fishman, Appellant, v Alvin Fishman, Respondent.
    Argued April 26, 1977;
    decided June 9, 1977

      Alan B. Katz for appellant.

      Roy J. Litwin and Ronald R. Coles for respondent.
   Memorandum. The commencement of this action fully satisfied the requirements of subdivision a of section 232 of the Domestic Relations Law regarding service of a summons in a matrimonial action for a separation. Admittedly, the trial court could not properly award the plaintiff wife a divorce where the notice indorsed on the summons stated that the relief sought was "[a] judgment of separation in favor of the plaintiff, separating the parties from bed and board, and for alimony, child support and counsel fees.” Nevertheless, the court was empowered, in its discretion, to amend the judgment, nunc pro tunc, so as to award the plaintiff a separation, rather than a divorce decree. (CPLR 5019, subd [a].) Such corrective action created a judgment which, as is required by the Domestic Relations Law, was of the same nature as was indicated in the summons served personally upon the defendant within the State.

It should also be noted that, although defendant husband obtained, subsequent to the granting of the New York decree, a final ex parte decree of divorce in California dissolving the marriage of the parties, this State may not be required to give full faith and credit to the decree insofar as the wife’s property rights are concerned. (Estin v Estin, 296 NY 308, affd 334 US 541; see, also, 16 NY Jur, Rev, Domestic Relations, § 977, at pp 588-589.)

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for consideration of the issues on the merits.

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

Order reversed, with costs, and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    Craig Krichmar, an Infant, by Rose Krichmar, His Guardian ad Litem, Respondent, v Joseph Krichmar et al., Appellants.
    Argued April 27, 1977;
    decided June 9, 1977

      Joseph D. Ahearn and J. Robert Morris for appellants.

      Jewel H. Bjork and Gerald M. Levine for respondents.
   Memorandum. The order of the Appellate Division should be reversed, with costs, and the certified question answered in the negative. There was no reservation of rights in the unlimited general release given on May 16, 1968 to the other joint tort-feasors, and, hence, the infant respondent’s parents, against whom this new action has been brought, were discharged from any alleged tort liability on their part (Oliver v Washburn, 46 AD2d 977, affd 39 NY2d 989; Berlow v New York State Thruway Auth., 29 NY2d 949; Milks v Mclver, 264 NY 267). The record does not suggest the existence of mutual mistake or any other ground upon which rescission of the release may be granted (see Lucio v Curran, 2 NY2d 157, 161; Frehe v Schildwachter, 289 NY 250, 253; compare Mangini v McClurg, 24 NY2d 556).

This court’s subsequent holding in Gelbman v Gelbman (23 NY2d 434), a case decided January 9, 1969, did not create any new liability which was not encompassed by the general release, but merely removed a judicially created impediment to intrafamilial tort actions. Furthermore, Gelbman (p 439) was deemed retrospectively applicable only to "matters which have not gone to final judgment”. Here the order of compromise authorizing the execution of a general release operated as a final judgment pursuant to CPLR 1207 which provides that an order of compromise, issued upon judicial approval of the settlement of an infant’s claim, as occurred here, "shall have the effect of a judgment”. The unilateral modification on August 26, 1970 of the order of compromise, effected two years following the entry of the original order, does not alter the effect of the original order or the general release executed pursuant to its direction. The release having been given in 1968, section 15-108 of the General Obligations Law (eff Sept. 1, 1972) does not affect the disposition of this case (see Oliver v Washburn, supra).

It should be noted that, procedurally, the Appellate Division affirmed an order denying defendants’ motion to amend their answer to plead a defense of general release. Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division. We do not review their exercise of the discretionary power (Harriss v Tams, 258 NY 229, 240). This appeal from a nonfinal order is here upon a certified question and, generally, "Where the decision could turn, either exclusively or alternatively, on the exercise of discretion, any question of law certified by the Appellate Division could not be considered decisive” (Rosemont Enterprises v Irving, 41 NY2d 829; Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599, 605). In this case, however, the trial court permitted, and the Appellate Division affirmed, amendment of the defendants’ answer in other respects. Therefore, it may reasonably be concluded that the courts below would have permitted the amendment, in discretion, had they believed the defense available as a matter of law.

Accordingly, the order of the Appellate Division should be reversed, with costs, and appellants granted leave to serve an amended answer asserting the defense of general release.

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

Order reversed, with costs, and appellants granted leave to serve an amended answer asserting the defense of general release in a memorandum. Question certified answered in the negative.


text:
    Sylvan L. Sacolick et al., Appellants, v Anthony Cagliostro, as Chairman of the Drug Abuse Control Commission of the State of New York, et al., Respondents.
    Argued May 3, 1977;
    decided June 9, 1977

      Ivan M. Dochter and Eli Phillips for appellant.

      Louis J. Lefkowitz, Attorney-General (David L. Birch and Samuel A. Hirshowitz of counsel), for Anthony Cagliostro and others, respondents.

      W. Bernard Richland, Corporation Counsel (Leonard Koerner, L. Kevin Sheridan and Philip Agree of counsel), for James Dumpson and others, respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


author: Fuchsberg, J. (dissenting).

text:
    Board of Education of West Valley School District, Respondent, v State Division of Human Rights, Appellant.
    Argued May 2, 1977;
    decided June 9, 1977

      Ann Thacher Anderson, Beverly Gross and Lawrence Kunin for State Division of Human Rights, appellant.

      Richard C. Heffern, Bernard F. Ashe and Gerard John De Wolf for Susan Bailey, appellant.

      Donald J. Holzman for respondent.
   Memorandum. The order of the Appellate Division should be affirmed, with costs. We cannot say that the disposition by that court on this record was erroneous as a matter of law.

Fuchsberg, J. (dissenting).

The time limitations specified in section 297 (subd 2; subd 4, pars a, c) of the Executive Law for the performance of certain acts on the part of the State Division of Human Rights are for the benefit of complainants "and cannot be held to shelter those charged with violation of the statute” (Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371, 381). Absent a showing of "substantial prejudice”, and in conformity with the realities of litigation, they are directory only and, therefore, failure to adhere to them should not invalidate a proceeding or otherwise terminate jurisdiction (ibid.; see, also, McKinney’s Cons Laws of NY, Book 1, Statutes, § 172).

Specifically, in this case the petitioner was not deprived of a fair hearing or otherwise substantially prejudiced. Nor, for that matter, is there even the slightest hint that the complainant by any conduct on her part had contributed to the delay.

Accordingly, the order of the Appellate Division should be reversed and the matter remitted to the Appellate Division to consider whether there is sufficient evidence to support the determination of the Human Rights Appeal Board.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, and Wachtler concur in memorandum; Judge Fuchsberg dissents and votes to reverse in a separate opinion in which Judge Cooke concurs.

Order affirmed.


text:
    Government Employees Insurance Company, Appellant, v Milton Kligler et al., Respondents.
    Argued May 4, 1977;
    decided June 9, 1977

      Patricia D’Alvia for appellant.

      Charles E. Closter for respondents.
   Memorandum. The order of the Appellate Division should be reversed.

While it is true that policies of insurance are to be construed liberally in favor of the insured and strictly against the insurer, where the provisions of the policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement (State Farm Mut. Auto. Ins. Co. v Westlake, 35 NY2d 587; Johnson v Travelers Ins. Co., 269 NY 401). The automobile liability policy in question affords coverage to the "named insured” in the event of an accident involving the vehicle designated under the policy or, in certain instances, a "temporary substitute automobile” or a "non-owned” vehicle. The named insured is defined to include the party who executed the agreement and his spouse. The policy further provides that a "temporary substitute automobile” includes any automobile not owned by the named insured which is temporarily being used with the permission of the owner. Finally, a "non-owned” vehicle means any automobile, other than a temporary substitute automobile, not owned by the named insured.

In this case the vehicle involved in the accident was owned by the wife of the insured and, hence, by the named insured as that term is defined in the policy. The wife’s car, therefore, did not qualify as either a "temporary substitute automobile” or a "non-owned” vehicle. Accordingly, it is manifest that the wife’s car was excluded from coverage by the clear and unambiguous language of the policy.

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

Order reversed, with costs, and declaratory judgment granted in favor of appellant in a memorandum.


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    New York Plumber’s Specialties Co., Inc., Respondent, v 91 East End Corporation, Appellant, et al., Defendants.
    Submitted May 5, 1977;
    decided June 9, 1977

      Michael Mantell for appellant.

      Irving Barry for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

The plaintiff agreed to open an account for the appellant if the appellant would sign a "guarantee” furnished by the plaintiff. The appellant signed and returned the "guarantee” which provides that "For value received and the further consideration of any credit that you may hereafter from time to time extend to 91 East End Corporation * * * the undersigned does hereby guarantee the full and prompt payment to you, of all indebtedness due to you which the said 91 East End Corporation has heretofore incurred and does hereafter incur”. Although described as a guarantee this writing is actually an agreement or promise to pay appellant’s own obligation for purchases made on its own account (see, e.g., Deeves & Son v Manhattan Life Ins. Co., 195 NY 324, 331). The plaintiff’s business records introduced into evidence at the trial show that the materials were delivered to the appellant’s address and credited to its account. In fact, at the trial appellant admitted that the materials were supplied and used in the construction project at its premises. On this record we agree with the trial court that the evidence established appellant’s obligation to pay for the goods sold, delivered and credited to its account.

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

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Darryl Brooks, Appellant.
    Submitted May 6, 1977;
    decided June 9, 1977

      Paul M. Rosen and Andrew J. Natale, Jr., for appellant.

      Carl A. Vergari, District Attorney (Janet Cunard and B. Anthony Morosco of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


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    Louise Hobson, Appellant, v Union Labor Life Insurance Company et al., Respondents.
    Submitted May 6, 1977;
    decided June 9, 1977

      Jacob M. Shapiro for appellant.

      Raymond V. O’Connor for respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


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    The People of the State of New York, Respondent, v Freeman Strong, Appellant.
    Submitted May 3, 1977;
    decided June 9, 1977

      Peter L. Yellin, Public Defender (Stephen G. Cheikes of counsel), for appellant.

      Lawrence T. Kurlander, District Attorney (Michael Nelson of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

Defendant was convicted of the crime of criminally possessing a hypodermic instrument in violation of section 220.45 of the Penal Law. That section, in pertinent part, provides plainly and directly that "[a] person is guilty of criminally possessing a hypodermic instrument when he knowingly and unlawfully possesses or sells a hypodermic syringe or hypodermic needle.” Pursuant to this statute, then, and aside from the question of unlawful and knowing possession, the jury must determine, not whether the hypodermic instrument was functional but, more simply, whether the item unlawfully possessed was, in fact, a hypodermic needle or syringe.

On the question of possession, here proved by circumstantial evidence, we need only note that the evidence was sufficient under the appropriate test (see People v Wachowicz, 22 NY2d 369, 372) to sustain the conviction.

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

Order affirmed in a memorandum.


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    The People of the State of New York, Respondent, v Gerald Solecki, Appellant.
    Argued May 5, 1977;
    decided June 9, 1977

      Leo J. Fallon for appellant.

      Edward C. Cosgrove, District Attorney (Judith Blake Manzella and William E. Balthasar of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


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    Barclay’s Ice Cream Co., Ltd., Respondent, v Local No. 757 of the Ice Cream Drivers and Employees Union et al., Appellants.
    Submitted May 31, 1977;
    decided June 9, 1977
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: On the appeal herein there was presented and necessarily passed upon the following question under the Constitution of the United States, viz.: Whether appellants’ rights under the First Amendment to the Constitution of the United States were violated by the injunction pendente lite issued at the Appellate Division. The Court of Appeals considered that contention and found no such violation. [See 41 NY2d 269.]


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    Charles Berney et al., Plaintiffs, v General Accident Fire and Life Assurance Corporation, Ltd., Defendant and Third-Party Plaintiff-Respondent. Nathan L. Brome et al., Third-Party Defendants-Appellants.
    Submitted May 23, 1977;
    decided June 9, 1977
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the grounds that no appeal lies from the "decision” of Supreme Court, Kings County, dated October 22, 1975, the appeal from the Appellate Division order of affirmance is not timely, and the Appellate Division order denying appellants’ motion for reargument does not finally determine the action within the meaning of the Constitution.

Motion for stay dismissed as academic.


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    Church of the Ascension et al., Respondents, v New York State Racing and Wagering Board et al., Appellants.
    Submitted March 14, 1977;
    decided June 9, 1977
   Motion by appellant Racing and Wagering Board for leave to appeal denied upon the ground that an appeal lies as of right. (CPLR 5601, subd [a].)

On the court’s own motion, appeal taken as of right by Belfran Industries dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


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    Mayor and Board of Trustees of the Village of Mount Kisco, Respondents, and William J. Green, Intervenor-Respondent, v Supervisor and Town Board of the Town of Bedford, Appellants.
    Submitted May 16, 1977;
    decided June 9, 1977
   Motion to dismiss an appeal, taken allegedly as of right, from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department, entered February 7, 1977 in a proceeding pursuant to article 17 of the General Municipal Law, which, by a divided court, (1) denied respondents’ motion to confirm the report of referees, (2) granted petitioners’ and intervenor’s cross application to annul a determination of respondents disapproving a proposed annexation by the Village of Mount Kisco of certain territory in the Town of Bedford, and for a determination that the proposed annexation was in the over-all public interest, (3) annulled said determination, and (4) adjudged that the annexation was in the over-all public interest. In support of the motion to dismiss the appeal petitioners contended that no appeal as of right lay to the Court of Appeals because the dissent at the Appellate Division was not on a question of law, citing Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon, (27 NY2d 369).

Henry J. Smith and Gerald Nolan for motion.

Joseph J. Buderwitz, Jr., opposed.

Motion granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


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    The People of the State of New York, Respondent, v Frank De Rosa, Appellant.
    Argued April 29, 1977;
    decided June 7, 1977

      Pat R. Mercurio for appellant.

      Denis Dillon, District Attorney (Judith K. Rubinstein and William C. Donnino of counsel), for respondent.
   Memorandum. Order of the Appellate Term affirmed.

The issue in this case did not turn on denial of a speedy trial. Had it been so, the failure of defendant to follow the procedure under CPL 210.20, 210.45 would sustain the reversal by the Appellate Term. Nor was the procedure at the trial court appropriate for a dismissal in the furtherance of justice under CPL 170.30 (subd 1, pars [e], [g]) (CPL 170.45). The correct issue was the abrupt refusal of the trial court on calendar call to allow an adjournment until 2:00 p.m. of the day previously set for trial. This, on the conceded facts and inevitable inferences from them, constituted an abuse of discretion as a matter of law (see Cohen and Karger, Powers of the New York Court of Appeals, § 108, p 459; ch 16).

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

Order affirmed in a memorandum.


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    State Division of Human Rights, Appellant, v Carnation Company et al., Respondents.
    Argued May 2, 1977;
    decided June 7, 1977

      Alan J. Saks and Beverly Gross for State Division of Human Rights, appellant.
    A. Terry Van Houten, Warren L. Johns, Walter E. Carson and James A. Spitz, Jr., for Daryl Clarke, appellant.

      H. Kenneth Schroeder, Jr., for respondents.
   Memorandum. Order of the Appellate Division reversed, order of the Human Rights Appeal Board reinstated, and the case remitted to the Division of Human Rights for an evidentiary hearing. Section 296 (subd 10, par [a]) of the Executive Law prohibits discrimination in employment based on a person’s "observance of any particular day or days or any portion thereof as a sabbath or other holy day in accordance with the requirements of his religion”. The statutory prohibition does not apply, however, "where the uniform application of terms and conditions of attendance to employees is essential to prevent undue economic hardship to the employer” (Executive Law, § 296, subd 10, par [c]).

The record in this case is not sufficiently developed to determine, as a matter of law, whether retaining complainant in his former position would have resulted in undue economic hardship to the employer. If, as the employer contends, designating a qualified substitute for complainant’s Saturday shift would entail any significant increase in costs, that would be enough to establish undue hardship. It should be obvious that an undue economic hardship does not require any threat or undermining of the economic stability of an enterprise. It would be enough that a palpable increase in costs or risk to industrial peace would be required in order to accomplish the end sought by the employee. But, without an evidentiary hearing, it cannot be determined definitively whether the employer could have accommodated appellant’s schedule without such significant cost or risk.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur; Judge Jasen dissents and votes to affirm on the memorandum at the Appellate Division (53 AD2d 1053).

Order reversed, with costs, order of the Human Rights Appeal Board reinstated, and the case remitted to the Appellate Division, Fourth Department, with directions to remand to the Division of Human Rights for further proceedings in accordance with the memorandum herein.


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    State Division of Human Rights, Appellant, v City of Niagara Falls et al., Respondents.
    Argued May 2, 1977;
    decided June 7, 1977

      Harry Starr and Beverly Gross for appellant.

      Carl E. Mooradian, Corporation Counsel (Douglas J. Crowley of counsel), for respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


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    Jose A. Sanchez, as Administrator of the Estate of Laura Sanchez, Deceased, et al., Appellants-Respondents, v Village of Liberty et al., Respondents-Appellants, and New York State Electric & Gas Corporation, Respondent, et al., Defendants.
    Argued May 4, 1977;
    decided June 9, 1977

      Gerald Orseck for appellants-respondents.

      Jed B. Wolkenbreit and Robert P. Roche for respondents-appellants.

      Lawrence E. Lagarenne for respondent.
   Memorandum. Order modified, without costs, and the complaint as to defendants Village of Liberty and John Como dismissed.

Absent a special relationship creating a municipal duty to exercise care for the benefit of a particular class of individuals, no liability may be imposed upon a municipality for failure to enforce a statute or regulation (Motyka v City of Amsterdam, 15 NY2d 134, 139; see Smullen v City of New York, 28 NY2d 66, 72). Because the statutes and ordinances involved in the case at bar create no such special relationship, no liability may be imposed. Nor may liability be imposed on the "dangerous instrumentality” theory advanced in Runkel v City of New York with respect to an abandoned building attracting children from the abutting public thoroughfare (282 App Div 173, 176; see Runkel v Homelsky, 286 App Div 1101, affd 3 NY2d 857; cf. Martinez v Kaufman-Kane Realty Co., 34 NY2d 819, 821).

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

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


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    In the Matter of Rudolph G. Antonucci, Respondent, v Port Chester-Rye Union Free School District et al., Appellants.
    Argued May 3, 1977;
    decided June 9, 1977

      Francis J. Sisea for appellant.

      James M. Rose and Arthur H. Grae for respondent.
   Memorandum. Judgment reversed, with costs, and the determination of the superintendent of schools reinstated. The record supports the more severe sanction imposed on petitioner because of his supervisory status, a difference in the charges, and evidence establishing the deliberateness of his conduct. Hence, the sanction imposed by the superintendent, after a full hearing, is not shocking to any sense of fairness, and should not have been overturned by the court below (Matter of Pell v Board of Educ., 34 NY2d 222, esp 235-236).

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

Judgment reversed, etc.


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    In the Matter of the Claim of Edward Hendricks, Respondent, v Toro Power House, Inc., et al., Respondents, and Special Disability Fund, Appellant. Workmen’s Compensation Board, Respondent.
    Argued May 6, 1977;
    decided June 9, 1977

      John M. Cullen and George Cholet for appellant.

      Cornelius V. Gallagher for employer and carrier, respondents.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


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    In the Matter of the Public Service Commission of the State of New York, Respondent, v Jamaica Water Supply Company et al., Appellants.
    Argued May 5, 1977;
    decided June 14, 1977

      Bernard S. Meyer for appellants.

      Charles R. Gibson and Peter H. Schiff for respondent.

      W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan, Alexander Gigante, Jr., and John C. Brennan of counsel), for City of New York, amicus curiae.

   Memorandum. Order of the Appellate Division affirmed, with costs, on the opinion of Mr. Justice J. Clarence Herlihy at the Appellate Division.

It is only necessary to add the following: People ex rel. New York Rys. Co. v Public Serv. Comm. (223 NY 373) may seem to suggest a more restricted view of the powers of the commission to assure adequacy of service. Its discussion, however, is concerned with a less direct effort to protect the financial structure of the railroad company. Indeed, the less direct effort there, it could be said, involved a closer and greater encroachment on the internal managerial policies and decisions of the company. It had then been recently reorganized, and the commission sought to enforce a program for replenishment of the capital accounts behind the bonds and stocks recently issued in replacement of the securities of the old company. In this case, on the other hand, the systematic withdrawals of earnings and the reduction therefore of the working capital of the water company had, at the time of the commission’s order, imperiled the water company’s capacity to maintain adequate service, sustained only by rate increases. The order stops the drain of working capital by the water company’s payment out of cash to the parent company to cover losses by the parent’s other subsidiaries.

There was no abuse of discretion, as a matter of law, by the Appellate Division in declining to grant leave to serve an answer under subdivision (a) of CPLR 404.

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

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Appellant, v Neil Martin, Respondent.
    Argued May 4, 1977;
    decided June 14, 1977

      Robert M. Morgenthau, District Attorney (Peter L. Zimroth and Brian Rosner of counsel), for appellant.

      Richard A. Dienst for respondent.
   Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.


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    April J. Dreyer, as Administratrix of the Estate of Stephen M. Dreyer, Deceased, Appellant, v Tishman Realty and Construction Co., Inc., et al., Respondents.
    Argued May 5, 1977;
    decided June 14, 1977

      Pamela A. Liapakis, Harry H. Lipsig and Charles F. McGuire for appellant.

      Arthur N. Seiff and Julius Gantman for respondents.
   Memorandum. The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division, First Department, for review of the facts pursuant to CPLR 5613. A jury question as to negligence was presented under the status rule enunciated by this court recently. (Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; Barker v Parnossa, Inc., 39 NY2d 926; Parish v Henneberry Rd. Farms, 39 NY2d 932.) Hence, the Appellate Division might not reverse, on the law, the judgment rendered in favor of the plaintiff. (See, e.g., Londa v Dougbay Estates, 40 NY2d 1001.)

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

Order reversed, with costs, and the case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


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    William Nallan, Appellant, v Union Labor Life Insurance Company, Respondent.
    Argued May 5, 1977;
    decided June 14, 1977

      David Hirschhorn for appellant.

      Joseph P. Altman, Jr., for respondent.
   Memorandum. The order of the Appellate Division should be affirmed, with costs. The case was tried on an agreed statement of facts. Plaintiff, a mechanical engineer in the employ of Nallan Associates, Inc., was shot in the back by an unknown assailant after entering an office building in New York City for the purpose of delivering sound equipment to a customer and attending a union meeting. He sustained serious injuries as a result of the shooting and received workmen’s compensation benefits for medical expenses incurred. In this action, he seeks recovery of medical expenses as the beneficiary of a major medical insurance policy issued by the defendant. Both the trial court and the Appellate Division, by a divided court, held that plaintiff is precluded from obtaining benefits under a provision of the policy excluding coverage for medical charges incurred as a result of "accidental bodily injury arising out of and in the course of the individual’s employment”. On this appeal, plaintiff contends that the shooting may not be deemed accidental. An "accident” has been defined as "an event which * * * is unusual and unexpected by the person to whom it happens” (Black’s Law Dictionary [4th ed]). Thus, the rule in this State and in other jurisdictions is that "Whether or not a certain result is accidental is usually determined by looking at the casualty from the point of view of the insured to see whether or not from his point of view the event was unexpected, unusual and unforeseen” (30 NY Jur, Insurance, § 1099, p 484; see Miller v Continental Ins. Co., 40 NY2d 675, 677; Floralbell Amusement Corp. v Standard Sur. & Cas. Co. of N. Y., 256 App Div 221, 225; Piotrowski v Prudential Ins. Co. of Amer., 141 Misc 172; Goldfeder v Metropolitan Life Ins. Co., 155 Misc 744; see, also, Jernigan v Allstate Ins. Co., 269 F2d 353; Huntington Cab Co. v American Fid. & Cas. Co., 155 F2d 117; Ann., 72 ALR3d 1090, 1100-1103). Under the circumstances here presented plaintiff did not expect or foresee the shooting, and thus, the resulting injuries should be deemed accidental and within the exclusionary language of the policy. The cases relied upon by plaintiff are inapposite for they involve policies containing an express exclusion for intentionally inflicted injuries (see, e.g., Borneman v John Hancock Mut. Life Ins. Co., 289 NY 295). The provision in issue in this case is intended to exclude from coverage those accidental injuries for which, as here, workmen’s compensation relief is available, and we conclude that the injuries sustained by plaintff fall within its ambit.

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

Order affirmed.

       In a prior separate proceeding involving a disability claim for the injury here suffered, the Appellate Division sustained the Workmen’s Compensation Board’s finding that plaintiff was an employee of both the union and Nallan Associates, Inc., his immediate employer, of which he was president and sole stockholder; consequently, that court upheld the award of compensation with respect to both the union and the employer (Matter of Nallan v Motion Picture Studio Mechanics Union Local No. 52, 49 AD2d 365). This court reversed with respect to the union and held that the latter was not plaintiffs employer (40 NY2d 1042). Nallan Associates, Inc., did not take an appeal to this court and hence the board’s award of compensation against its insurance carrier remains undisturbed.


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    930 Fifth Corporation, Appellant, v Wilma V. King, Respondent.
    Argued May 4, 1977;
    decided June 14, 1977

      Lewis M. Isaacs, Jr., Herman Jervis and Donald L. Newborg for appellant.

      Jacob W. Friedman for respondent.
   Memorandum. The order of the Appellate Division is affirmed, with costs. The plaintiff lessor and the defendant lessee entered into an agreement for the rental of a certain apartment in a building owned by the plaintiff. Paragraph 30 of the lease provides that "the Lessor shall have the right to re-enter the apartment and to remove all persons and personal property therefrom, either by summary dispossess proceedings, or by any suitable action or proceeding at law or in equity * * * (d) * * * if the Lessee shall default in the performance of any covenant or provision hereof’. In paragraph 15 the lessee "covenants to obey all such [house] rules and see that they are faithfully observed”, and finally, the lease provides that "if the Lessee shall at any time be in default hereunder and the Lessor shall incur any expense (whether paid or not) * * * in instituting any action or proceeding based on such default, the expense thereof to the Lessor, including reasonable attorneys’ fees and disbursements, shall be paid by the Lessee to the Lessor, on demand, as additional rent.”

In a prior summary proceeding the defendant was found to have willfully violated a house rule restricting the harboring of pets on the premises (40 AD2d 140, app dsmd 31 NY2d 1046). No claim for attorney’s fees was raised in that proceeding. By this separate action the plaintiff now seeks to recover reasonable attorney’s fees incurred in that summary proceeding pursuant to the above lease provision.

The clauses of the lease are interdependent. The lessee covenants to obey the house rules. The right to re-enter and to remove the tenant arises on default of any covenant; and default by the lessee renders him liable for reasonable attorney’s fees on demand. All these facets of the lease are interrelated and constitute but separate integral parts of the whole. The lease entails a single obligation which thus requires the plaintiff to assert its entire claim in one action. Failure to make a claim for attorney’s fees in the initial summary proceeding results in the splitting of a cause of action which is prohibited (Century Factors v New Plan Realty Corp., 41 NY2d 1040, wherein it was stated that "[t]he obligation of the defendant, though consisting of two promises, is in truth a single obligation requiring the plaintiff to assert its full claim in one action”). Likewise in Columbia Corrugated Container Corp. v Skyway Container Corp. (37 AD2d 845, affd 32 NY2d 818), we barred recovery in a separate subsequent action for attorney’s fees under a clause in the lease which provided that such fees were to be paid by the tenant " 'In the event that it shall become necessary for landlord to enforce any provisions of this agreement’ In Columbia Corrugated this court overruled 379 Madison Ave. v Stuyvesant Co. (24 App Div 567, affd 268 NY 576) and any attempt to distinguish that case on hypertechnical grounds is unavailing. Likewise, to the extent that the result reached in 207-17 West 25th St. Co. v BluStrike Safety Razor Blade Co. (302 NY 624, revg 277 App Div 93) is inconsistent with the present case, it should be deemed overruled.

Thus we conclude that the complaint was properly dismissed.

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

Order affirmed.


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    The People of the State of New York, Respondent, v Martin J. Dingley, Appellant.
    Argued May 4, 1977;
    decided June 14, 1977

      Paul T. Devane and Joseph M. Ingarra for appellant.

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
   Memorandum. Of the several issues raised by defendant, one requires a reversal of the conviction and a new trial.

Although the determination at trial, which precluded the introduction of evidence of the victim’s prior specific acts of violence of which the defendant had knowledge, was correct when made, People v Miller (39 NY2d 543) has since changed the rule and requires a reversal here.

As was recognized by the Appellate Division, however, no error was made in the court’s charge on justification. The common-law exception, which made the duty to retreat inapplicable when assault was charged, did not survive the statutory amendment embodied in section 35.15 of the Penal Law.

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

Order reversed and a new trial ordered in a memorandum.


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    Mount Vernon Contracting Corporation, Appellant, v State of New York, Respondent.
    (Claim No. 52016.)
    Submitted May 16, 1977;
    decided June 14, 1977
   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 (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


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    1163 Realty Corp., Respondent, v United Institutional Servicing Corp. et al., Appellants.
    Submitted May 16, 1977;
    decided June 14, 1977
   Motion to dismiss the appeal denied.


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    The People of the State of New York, Respondent, v Marilyn McFarlan, Appellant.
    Argued April 25, 1977;
    decided June 16, 1977

      Irving Cohen for appellant.

      Robert M. Morgenthau (Peter L. Zimroth and Robert M. Pitler of counsel), for respondent.
   Concur: Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Fuchsberg. Judges Jasen and Cooke dissent and vote to affirm on the Per Curiam opinion at the Appellate Division (52 AD2d 112).