author: Fuchsberg, J.

text:
    Town of North Hempstead, Appellant, v Exxon Corporation, Respondent. (Action No. 1.) Mobil Oil Corporation, Respondent, v Town of North Hempstead, Appellant. (Action No. 2.)
    Argued January 6, 1981;
    decided April 7, 1981

      APPEARANCES OF COUNSEL

      Joseph A. Guarind, Town Attorney (Bruce W. Migatz of counsel), for appellant.

      George A. Burrell for Exxon Corporation, respondent.

      Arden H. Rathkopf and Daren A. Rathkopf for Mobil Oil Corporation, respondent.
   OPINION OF THE COURT

Memorandum.

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

One owner of a partial self-service station testified as to the substantially increased risks posed by distribution of gasoline through self-service pumps as contrasted to its distribution through attendant-serviced pumps. Although there was impressive evidence to the contrary, we cannot say, even in the absence of relevant legislative findings, that it has been shown beyond a reasonable doubt that there was no rational basis for the adoption of the local law here at issue by the Town of North Hempstead (Lighthouse Shores v Town of Islip, 41 NY2d 7, 11-12).

It bears emphasis that the burden of proof is upon the party challenging the ordinance and the mere presence of empirical evidence that casts doubt upon the existence of the hazards sought to be alleviated by the legislation is not conclusive proof of irrationality (Minnesota v Clover Leaf Creamery Co., 449 US 456, 463-464). So long as there is evidence that the question is at least debatable, the legislative judgment is not irrational (id.).

Fuchsberg, J.

(concurring). The court here confronts a classical due process attack on the constitutionality of legislation in the economic sphere. This century has witnessed a legal metamorphosis in this area of the law. The product of the change is what for some decades now may be fairly described as virtually a “hands-off” approach by the United States Supreme Court. In contrast, to fill this gap in an age when governmental legislative and quasi-legislative intervention in economic affairs abounds, courts in most States, relying on their own Constitutions, have reasserted a right, albeit somewhat limited, to scrutinize and, where appropriate, invalidate offending regulation.

Specifically, a series of rulings by this court similarly separated New York from the Federal abstention. Never articulated in perspective, the totality of our adjudications nevertheless unmistakably reveals the pattern of principles which control this case. It seems to me that the time has come to more fully acknowledge the history and rationale on which this decisional line rests. Because I so believe, rather than join in the cursory memorandum in which the court disposes of this case, I set out the fuller basis on which I prefer to ground my own vote.

It is on this basis that we are called upon to say whether a local law which interdicts “[t]he installation and use of coin operated, self-service or customer-operated dispensing pumps at gasoline service stations or automobile service stations” meets the constitutional due process mandate of rationality. The question takes on increased practical importance in light of the undisputed proof that, in the four years preceding 1978, when this controversy first entered our courts, the self-service method of retailing gasoline has increased its share of that national market from 6.2% to 45%.

This issue arrives in two cases, one by the Town of North Hempstead against Exxon Corporation and the other by Mobil Oil Corporation against the town. In the Exxon suit, the town seeks to enjoin the corporation from operating a partial self-service station, some of whose pumps are to be operated by customers and others by an attendant. Exxon counterclaims for a judgment declaring the ordinance unconstitutional and enjoining the town from enforcing it. In the Mobil action, that corporation seeks similar relief as to a full self-service station, premising its constitutional claim on both the State and Federal Constitutions.

The ensuing joint non jury trial explored the potential for fire hazards in self-service gasoline stations as compared to full-service stations. In the course of an extensive presentation, Exxon and Mobil, insisting that existing safety devices, governmental regulations and a recommended industry code would effectively safeguard the public against dangers peculiar to customer operation, pointed, among other things, to section 3.6 (d) of the Nassau County Fire Prevention Ordinance and a.code recommended for self-service stations by the privately structured National Fire Protection Association. These would require instruction for the attendants who control the central console panels which compute the amount and price of the gasoline which flows each time a self-service pump is activated and would command the means of shutting off the power on which the dispensing units run. These standards would also mandate an auditory intercommunication system between console attendant and dispensing area and prohibit latch-open devices on nozzles, thus preventing operation without constant manual pressure on the trigger. It is not disputed that respondents intended to comply with these criteria in good faith.

The respondents also offered statistics which purportedly proved that in Nassau County during 1975-1977, the years immediately preceding the trial, no service station fires were cataloged as attributable to the fact that patrons serviced themselves and that the American Petroleum Institute, a leading oil company spokesman, reported that, out of a total of 53 service station fires in the United States in 1977, those occurring at self-service stations numbered only two, neither of which related to the method of dispensing gasoline.

For its part, the town attacked the reliability of both the safety devices and the statistics. For that purpose, it offered testimony by an owner of a partial self-service station that, in his experience, gasoline spills and other departures from safe practice occur far more frequently when customers do the dispensing. It also asserted that, since the vaunted cutoff devices are not automatic, but dependent on the alertness of a single operator preoccupied with multiple pumps and other responsibilities, the security it provides is not comparable to that afforded when a practiced employee handles a pump directly. As to the statistics, the town argued that those provided by the National Fire Protection Association and American Petroleum Institute are incomplete, being restricted to fires which resulted in property damage of over $1,000, and that, in any event, the accuracy of the statistics-gathering procedure was flawed by the limited reliability of what are essentially voluntary reporting sources. To illustrate these contentions, it adduced evidence that, while the institute received only 53 reports of fires in gasoline stations in all of the United States in 1977, the Nassau County Fire Marshall’s office, which mandates compulsory reporting of all fires, received 11 reports in that single one of the many hundreds of counties in the country.

After hearing both sides, Special Term came to the conclusion that the respondents failed to establish the unconstitutionality of the town ordinance. But, the Appellate Division, Second Department, in turn, reversed on the rationale that, while the town’s position was “compelling as an abstract concept”, it had to “give way to contrary .empirical proof”. Given this factual and procedural background, my analysis proceeds as follows:

I start with a few comments on the genesis and development of the rational basis test against which the constitutionality of the ordinance here must be evaluated. Generally speaking, that test, as this court has articulated it in recent years, requires no more than that every enactment under the police power bear a “ ‘fair, just and reasonable connection’ between it and the promotion of the health, comfort, safety and welfare of society” (Montgomery v Daniels, 38 NY2d 41, 54). It is basic too that, in ascertaining whether a statute has met this test, there is an exceedingly strong presumption of constitutionality which, while rebuttable, can be overcome only by a demonstration that it is unconstitutional beyond a reasonable doubt (Town of Huntington v Park Shore Country Day Camp at Dix Hills, 47 NY2d 61, 65; Lighthouse Shores v Town of I slip, 41 NY2d 7,11).

These rules could not always have been stated with such confidence. Before West Coast Hotel Co. v Parrish (300 US 379 [1937]) heralded departure from the Supreme Court’s former concern for economic substantive due process, that court would subject legislation affecting property to a close assessment not only of means but of goals, whose constitutional legitimacy it would eye with a court-conceived and value-laden judgment (see Tribe, American Constitutional Law, § 8-4, p 438; Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1, 35, 42).

No list of illustrative cases would be complete without Allgeyer v Louisiana (165 US 578 [1897]), in which the court first held a State statute was violative of the due process clause of the Fourteenth Amendment because it infringed upon the liberty to contract; Lochner v New York (198 US 45 [1905]), in which the court, finding health considerations insufficient to overcome a similar application of the Fourteenth Amendment, struck down a statute limiting bakery employees’ work week to 60 hours; and Coppage v Kansas (236 US 1 [1915]), where a statute which prohibited “yellow dog” contracts, under which employees, as a condition to their continued employment, undertook to refrain from joining a union, was found to have run afoul of the Fourteenth Amendment (see, also, Adair v United States, 208 US 161).

In arriving at these decisions, the court scrutinized not only the means by which a Legislature contemplated achieving its goal, but, in terms of its own sense of the general welfare, similarly scrutinized the goal itself. Where either did not comport with its conceptions, down would go the legislation, in the name of personal liberty and property rights.

The scope of the rational basis test perhaps can best be appreciated against this background. For, in contrast to the substantive due process which prevailed when active judicial oversight of statutes affecting social and economic concerns was the order of the day (Morehead v New York ex rel. Tipaldo, 298 US 587, 633), the new test respected the positive role of legislation in the achievement of these goals (Day-Brite Light. v Missouri, 342 US 421).

To that end, our courts presumed that the Legislature had investigated and found a need for a particular statute (Matter of Van Berkel v Power, 16 NY2d 37, 40). So, it is now old law that it is entirely proper for a Legislature to anticipate a danger and to provide against it before it materializes (City of Rochester v West, 164 NY 510, 514; Town of Hempstead v Goldblatt, 19 Misc 2d 176, 183 [Pittoni, J.], affd 9 AD2d 941, affd 9 NY2d 101). And, under such formulations, specific legislative findings as to need were not required, for, if any state of facts, known or hypothesized, could justify the law, the court’s power of inquiry ended (United States v Carolene Prods. Co., 304 US 144, 151, supra; see Williamson v Lee Opt. Co., 348 US 483). Nor did it matter that the courts thought a statute unwise, or that its purpose could better be achieved another way, or that in practice the method chosen turned out to be ineffective (Town of Huntington v Park Shore Country Day Camp of Dix Hills, 47 NY2d 61, 65, supra). The underlying rule that evolved was that so long as a statute was neither arbitrary nor irrational, it was constitutional.

Now, this judicial deference to the legislative judgment has not been without its critics, who have deplored what they took to be an overreaction substituting a well-nigh “all-out tolerance” of economic regulation for the “inflexible negativism” characterizing the days of Lochner (see McCloskey, Economic Due Process and the Supreme Court, An Exhumation and Reburial, 1962 Sup Ct Rev 34; Struve, Less Restrictive-Alternative Principle and Economic Due Process, 80 Harv L Rev 1463; Gunther, A Model for a Newer Equal Protection, 86 Harv L Rev 1, 8). But, though the rational basis test may not be very demanding, it does define limits, and, as I have stated at the outset, most of our State courts, applying their own constitutional provisions on the order of due process and equal protection, have not hesitated to reassert a right to thereby scrutinize and, where appropriate, invalidate economic legislation (see Carpenter, Our Constitutional Heritage: Economic Due Process and the State Courts, 45 ABA Journal 1027; Paulsen, Persistence of Substantive Due Process in the States, 34 Minn L Rev 91).

As observed above, New York cases go the same way. Thus, in Defiance Milk Prods. Co. v Du Mond (309 NY 537 [Desmond, J.]), this court invalidated an ordinance which required that condensed or evaporated skim milk be sold only in 10 pound containers; we reasoned that this minimum weight requirement effectively interdicted retail sales for household use. Also, not too long afterwards, in Trio Distr. Corp. v City of Albany (2 NY2d 690), we held irrational a municipal law prescribing that retail ice cream trucks each carry two attendants to enhance the safety of children drawn to its wares; on balance, we held the mandated method of implementing the safety goal at once too prohibitively expensive and too dubiously related to the goal it was intended to serve.

On a related rationale, in People v Bunis (9 NY2d 1), we struck down as unconstitutional a statute, which, in order to proscribe illicit traffic in magazines “returned” for credit, indiscriminately criminalized the sale of any magazine without a cover; these means we held too broad-sweeping. So too, more recently, in People v Scott (26 NY2d 286), focusing again on means, we indicated that a local town law, which forbade the storage of disabled motor vehicles on any open land, was entirely too broad to be justified by purely aesthetic concerns (see, also, People ex rel. Pinello v Leadbitter, 301 NY 695 [ordinance regulating hours for barbers] ; McKay, Constitutional Law, Economic Rights, 31 NYU L Rev 1358, 1367).

The common thread connecting all these cases is that, while, in each, the objective of the statute at stake was within the legislative power of the State, the means adopted were not reasonably calculated to achieve that objective. In so deciding, we left no doubt that a court should not eschew all concern over the relationship between the means a Legislature adopts and the end to which the means are directed. Indeed, examination of the means helps guarantee that opposing views have been aired. (See Comment, Counterrevolution in State Constitutional Law, 15 Stan L Rev 309; Note, 53 Col L Rev 827.)

Turning now to the ordinance before us, I at once note the unassailable propositions that gasoline is a highly flammable and explosive substance the dispensing of which is potentially dangerous, and that its regulation serves an important public purpose (People v Faxlanger, 1 AD2d 92, 94, affd 1 NY2d 393). Further, in enacting it, the town acted pursuant to express grants of legislative power to prevent fire and to promote the health and safety of the community (Town Law, § 130, subds 5, 15). The question remains, however, whether the town’s prohibition of self-service stations rationally serves to further the goal of fire prevention.

In attempting to demonstrate beyond a reasonable doubt the ordinance’s unconstitutionality (see Lighthouse Shores v Town of I slip, 41 NY2d 7, 11, supra), in essence the respondents reassert the statistics bearing on the effectiveness of the safety measures to which I referred earlier. Assuming that when the town evaluated its need for the ordinance, it had before it all the information adduced at trial, one cannot say it was not free to reach a conclusion opposite to the one which the respondents insist is the only permissible one. Specifically, the town board had the right, if it was so persuaded, to place less reliance on the safeguards which the respondents emphasized. The qualitative or quantitative weight it thought should be accorded facts and arguments brought to its attention or otherwise within its ken was its prerogative. It would have been rational, for instance, for its members to arrive at an opinion that the potential for added danger each self-service pump presented — for instance, engines left running; cigarettes left lit; unapproved containers filled; inexperienced and unqualified persons, including children, causing spillage — would not be allayed by a console attendant charged with the remote control of multiple pumps. Nor was it beyond the permissible range of its legislative judgment to decide that, in any event, the gasoline would be more safely dispensed directly by regular attendants. All these are not abstract considerations. They have been among those related to us by the board.

I recognize, of course, that a competing viewpoint was not only entertainable, but, in the eyes of the respondents, and of others, no doubt was far preferable. But the choice among permissible alternatives was that of the board, not of the respondents and not of the court. Beyond that, it goes without saying, there is resort to the ballot by which board members are re-elected. Essentially, in the end, all we may decide here is whether, in passing the ordinance, the board acted “without rhyme or reason” (Defiance Milk Prods. Co. v Du Mond, 309 NY 537, 541, supra). Under the circumstances, I cannot say it did.

Finally, I observe that this ordinance does not suffer from the flaws of economic legislation the court has had occasion to declare unconstitutional in the past. It is neither a regulation which functions as a prohibition, nor a prohibition which is'so excessive that it interdicts otherwise legitimate activity, the situations in the cited New York cases. The regulation of the method of the sale of gasoline bans self-service, but the sale of gasoline by the full-service method is permitted. While enforcement may result in some economic disadvantage for the respondents, the individual interest must bow to that of the general public (see, generally, Noble State Bank v Haskell, 219 US 104, 111 [Holmes, J.]). This is especially true where the law’s purpose is to protect against a perceived danger to public safety.

It is for these reasons that the order of the Appellate Division should be reversed and the judgment in each case reinstated.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchsberg concurs in a concurring opinion in which Judge Jasen concurs.

Order reversed, etc.

      . The local law at stake was enacted pursuant to the power delegated by subdivision 5 of section 130 of the Town Law which, under the title “Fire Prevention” provides for the regulation of “the use, sale, storage and transportation of * * * inflammables”.

      . The actions were consolidated for trial. Though separate judgments are entered, the cases then went to the Appellate Division on a single record and there were argued jointly. The present appeal is from the Appellate Division’s single order disposing of both appeals.

      . To indicate universal recognition of this peril, the town also draws attention to the following provision of National Fire Protection Association Code: “7644. It shall he the responsibility of the attendant to (1) prevent the dispensing of Class I liquids into portable containers not in compliance with 7620; (2) to control sources of ignition; and (3) immediately handle spills and fire extinguishers, if needed. Attendant or supervisor on duty shall be mentally and physically capable of performing the functions and assuming the responsibilities prescribed in this section.”

      . According to the World Almanac and Book of Facts (1980 ed), there are a total of 3,044 counties in the 50 States of the Nation.

      . This is to be distinguished from cases challenging legislation which may impinge on a particular prohibition of the Constitution, as found, perhaps most dramatically, in the First Amendment, where the presumption at best would have limited force. In contrast, where the more general language of the
      Fourteenth Amendment stands alone, there may be well-nigh unrestricted play of the political process in the regulation it authorizes (United States v Carolene Prods. Co., 304 US 144, 152, n 4).

      . For discussion of the factors influencing the Supreme Court’s abandonment of economic substantive due process, see Murphy, Constitution in Crisis Times (70-82, 99-110), and Sutherland, Constitutionalism in America (481-501).

      . A State court decision determining the validity oí a statute as a matter of State constitutional law involves no Federal question and therefore may not be reviewed by the Supreme Court, so long as the decision of the State court does not contravene some provision of Federal law.

      . In arriving at this result, unlike courts in some States, which more discretely relied on their own Constitutions alone, our court, in the main, discussed the subject in terms of due process generally. This does not detract from the point, all the more so since the parties in all these cases, save one, raised the issue under both the Federal and New York Constitutions. In the exception, People v Scott (26 NY2d 286, supra), solely the State constitutional due process ground was in issue.

      . While it was enacted by a local town board, the ordinance is to be measured by the same standards as a statute passed by the State Legislature (see Dutchess Sanitation Serv. v Town of Plattekill, 51 NY2d 670, 676, n 2; Lighthouse Shores v Town of Islip, 41 NY2d 7, 11, supra).


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Thomas Shepard, Appellant, v Judy V. Shepard, Respondent.
    Submitted March 27, 1981;

    decided April 7, 1981

      APPEARANCES OF COUNSEL
    L. Richard Stumbar for appellant.
   OPINION OF THE COURT

Order affirmed, with costs. In the particular circumstances of this case, we affirm for the reasons stated in the memorandum at the Appellate Division (77 AD2d 701).

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


text:
    J. Manes Co., Inc., Appellant, v Greenwood Mills, Inc., Respondent.
    Argued February 9, 1981;
    decided April 7, 1981

      APPEARANCES OF COUNSEL

      Samuel Gottlieb, Milton Shalleck and Shelley L. Wallace for appellant.

      Kurt J. Wolff for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this motion for summary judgment there is no evidentiary material in the record to support plaintiff’s allegation, and conclusory assertion, that the seller from whom he purchased the goods was in the business of selling goods of that kind (Uniform Commercial Code, § 1-201, subd [9]; § 9-307, subd [1]), or that the defendant was unjustly enriched. This alone is sufficient to sustain the Appellate Division’s determination that the plaintiff is not entitled to summary judgment.

In response to the dissent it should be noted that the determination in Tanbro Fabrics Corp. v Deering Milliken (39 NY2d 632, 636-637), that the seller was a seller in the ordinary course, was a factual finding, affirmed by the Appellate Division and supported by sufficient evidence in the record in that case. Although by coincidence the case now before us happens to involve the same seller, the factual findings in Tanbro, of course, are not binding on the defendant in this case who was not a party to that action.

Finally we note that we are unable to grant summary judgment to the defendant because the defendant has not taken a cross appeal to this court (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 474; People v Consoli dated Edison Co. of N. Y., 34 NY2d 646, 648; Kelly’s Rental v City of New York, 44 NY2d 700, 702).

Accordingly, the order of the Appellate Division should be affirmed, without prejudice to the defendant’s right to reassert the cross motion for summary judgment at Special Term, if so advised (see People v Consolidated Edison Co. of N. Y., supra).

Fuchsberg, J.

(dissenting). In my view, the majority’s resolution of this case offends important policies articulated in the Uniform Commercial Code and, in particular, cannot be reconciled with our recent application of the code in Tanbro Fabrics Corp. v Deering Milliken (39 NY2d 632). The statutory provisions at stake, their stability vital to the commercial life of State and Nation, are sections 9-102, 9-104 and 9-307 of the Uniform Commercial Code (Bunn, Snead & Speidel, An Introduction to the Uniform Commercial Code, p 4).

The operative facts are neither novel nor controverted. Indeed, for the most part they are stipulated. And, for all practical purpose, they mirror those in Tanbro.

The business of the plaintiff, J. Manes Co. (Manes), a textile converter, is to purchase fabric in undyed (greige) condition, finish it and then sell it to the trade in the state to which it has thus been converted. In November, 1969, in the regular course of its business, through a broker it purchased some 225,000 yards of greige goods from Mill Fabrics, Inc. (Mill), another converter which in turn, had purchased the material from the defendant, Greenwood Mills, Inc. (Greenwood), a manufacturer of greige goods. Mill had made the original purchase on an open account contract, which gave Greenwood a so-called “security interest” in the fabric to the extent of Mill’s running indebtedness. Mill’s purchase from Greenwood having been made on a “bill and hold” basis, in keeping with trade practice the goods were to be kept in Greenwood’s warehouse subject at any time to shipping instructions which might emanate from the purchaser. It was while the goods were so held that Mill, on December 1, 1969, sold them to Manes for $50,979, thereby transferring the former’s right and title to the goods under the bill and hold arrangement.

Little more than a month had gone by when, in January, 1970, Mill became insolvent. It was subsequent to the insolvency, but while what were now Manes’ goods were still in Greenwood’s warehouse, that the new owner issued its shipping instructions. Greenwood thereupon refused to release the goods and, by letter dated March 2, 1970, notified Manes that it intended to dispose of the goods to offset a balance still due on its account with Mill. True to this statement, it sold them to a third party. On these facts, Special Term denied cross motions for summary judgment in an action brought by Manes for money had and received grounded on the theory that Greenwood had been unjustly enriched by the avails of Manes’ goods. The Appellate Division has since affirmed. Only the plaintiff appeals.

These facts in mind, the Tanbro case is more than instructive. There, Tanbro, a textile converter, also purchased greige goods from Mill, which had originally purchased that fabric from another manufacturer, Deering Milliken, on the same type of open account basis under which Mill financed its purchases from Greenwood in the case before us now. As here too, the goods, in accordance with the bill and hold practice, were kept on the manufacturer’s premises to await the purchaser’s shipping instructions. When, in January, 1970, Tanbro gave such instructions, Deering Milliken, reacting to the self-same distressed financial condition of Mill, refused to deliver and, instead, sold the merchandise to a third party.

On appeal of Tanbro’s action for tortious conversion, we identified the issue to be whether the plaintiff’s “purchase of the goods was in the ordinary course of Mill Fabrics’ business, and hence free of [defendant manufacturer] Deering’s perfected security interest” (Tanbro Fabrics Corp. v Deering Milliken, 39 NY2d 632, 634, supra). Crucial to our answer was section 9-307 of the Uniform Commercial Code (entitled Protection of Buyers of Goods), subdivision (1) of which provides that “A buyer in ordinary course of business (subsection [9] of section 1-201) * * * takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.” Noting it was Mill’s “predominant” business to finish goods before reselling the greige fabric it purchased from manufacturers, we nonetheless recognized that lateral sales of unfinished goods between converters constituted a normal, if less common, feature of a converter’s operation. We went on to hold that the manufacturer could not assert its security interest against Tan-bro, the purchaser to whom Mill passed title and to whom, in consequence, he was found liable for conversion (Tanbro Fabrics Corp. v Deering Milliken, supra, at pp 634-635, 637).

Yet, in the face of the two cases’ apparent sameness, Special Term in the case now on appeal chose to distinguish •them on the rationale that, because the Statute of Limitations relegated. Manes to an action sounding in quasi contract to recover for Greenwood’s unjust enrichment, the Uniform Commercial Code policy goals to which we gave effect in Tanbro do not count here. To take such a stance, it had to assume that Tanbro rested on an awareness that “the practice of storing goods at the seller’s mill is efficient and beneficial to the industry, and that the procedure would be put in jeopardy” unless the interest of a purchaser like Tanbro (or Mill) is subordinate to the manufacturer’s security interest. To that end, it would have required that Manes show that, “by agreement between defendant and Mill or by commonly accepted accounting principles”, one or more payments passing from Mill to Greenwood' in their running account were allocated to the specific good Manes brought.

In fact, however, neither the underlying commercial reality nor the dominant purpose of the Legislature in adopting the code is anywhere made so utterly dependent on whether a pleader frames a complaint on one theory or another. Rather, the fluidity of commercial transactions so essential to the marketplace would appear to insulate one in Manes’ position from the purported enforcement of Greenwood’s security interest in the goods resold to Manes by Mill. This is epitomized by article 9, which, by its terms, applies “to any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods” (Uniform Commercial Code, § 9-102, subd [1], par [a]; for enumerated exceptions see § 9-104; see, also, Henson, Secured Transactions under the Uniform Commercial Code, p 15 [1979]). It, therefore, would be incongruous to call upon Manes to demonstrate the satisfaction of a security interest to which it was not subject under the code in any event.

More, it would be both unfair and impractical to somehow make Manes responsible for accounting arrangements to which it cannot have been privy, since these reflected transactions between its seller and its seller’s supplier alone, and over which Manes had absolutely no control. In Tanbro, there was some evidence that the moneys passing from Mill to Deering had in fact been earmarked to cover the good involved. But, we there gave no weight to this factor. While we acknowledged that the open account gave Deering a security interest in all goods purchased from it by Mill, under section 9-307 Deering was precluded from enforcing it against Tanbro. This was not because the court questioned the force of the manufacturer’s security lien as against Mill, but because, applying this section, we determined that the security interest did not reach to Mill’s purchaser. In like manner, in the present case the statute should not allow Greenwood’s security interest coloration to legitimatize its appropriation of the goods Manes had purchased from Mill in good faith and in due course at an open market, not distressed, sales price.

Nor is there an issue in this case as to whether, in December, 1969, when it sent Mill its check for the purchase price, Manes had knowledge of Greenwood’s security interest. The kind of knowledge that could render a purchaser vulnerable is not knowledge of the existence of the security agreement but of some violation of the agreement inherent in the purchase (see Uniform Commercial Code, § 1-201, subd [9]). Here, not only is no such knowledge alleged, but Manes had no actual notice of the seller’s security interest at all. Thus, Manes’ purchase from Mill was precisely the kind of transaction section 9-307 of the Uniform Commercial Code was intended to facilitate.

In a case so structured, the majority falls back to the position that because Mill was in the business of converting greige goods, rather than selling them as such, Manes was not a purchaser who had bought the goods from one who was in the “business of selling” them within the compass of subdivision (9) of section 1-201 and subdivision (1) of section 9-307 of the Uniform Commercial Code. Before mounting this argument, it “notes” that Mill was the one who had sold the same kind of goods at about the same time and under the precisely same circumstances to the plaintiff in Tanbro and the plaintiff here.

Then, to avoid the implications of the unavoidable, it asserts that in Tanbro our decision that Mill was “in the business of selling” greige goods was premised on a purportedly affirmed factual finding in the courts below. But at best this tells only half the story. There indeed had been such a finding and we had no problem in going along with that. But, our affirmance did not depend on it. The undisputed fact, was that Mill’s sale to Tanbro, as was the one here to Manes, was a resale of preconverted greige goods, rather than postconverted greige goods. Neither sale, the one to Manes no more and no less than the one to Tanbro, represented a “predominant business purpose”. Nevertheless, terming such a sale a reasonably anticipatable “business advantage”, we unanimously determined, dehors any question of fact, that “on an alternative analysis, such a sale by Mill Fabrics was * * * impliedly authorized under the code”. This was, we said, because “all subdivision (1) of section 9-307 requires is that the sale be of the variety reasonably to be expected in the regular course of an ongoing business” (Tanbro Fabrics Corp. v Deering Milliken, 39 NY2d 632, 637, supra). Whatever may be thought to have been the basis for any other'“alternative analysis”, clearly this one was made on the law.

Finally, we should point out that the two “industry experts” Greenwood produced added nothing to the facts. What they had to say was simply that sellers sell and converters convert. On this everybody agrees. Whether a sale made by a converter for a purpose “only incidental to [its] predominant business purpose” comes within the embrace of the pertinent Uniform Commercial Code section is a question of law, not fact, and on that their offerings were simply worthless. How this question of law was to be answered was for us, and we did so directly when we held that such an “incidental” sale was “of the variety reasonably to be expected of an on-going, business” under the code (cf. Sternberg v Rubenstein, 305 NY 235, 238, 240-242).

For these reasons, I believe the order of the Appellate Division should be reversed and the motion for summary judgment granted. Consonantly, the certified question should be answered in the negative.

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

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

      . The statutory period within which a conversion action could be brought had expired.

      . In Tanbro, Trial Term had directed a verdict for liability as a matter of law, sending only the damage issue to the jury, a course which the Appellate Division apparently agreed was the correct one, since in that court, only the single dissenter, without delineating any rationale, thought there was a question of fact on whether Mill’s sale was within the statute (48 AD2d 784).


text:
    Robert P. Roche, Appellant, v Hearst Corporation et al., Respondents.
    Argued February 16, 1981;
    decided April 7, 1981

      APPEARANCES OF COUNSEL

      George H. Barber and David W. Morris for appellant.

      Peter L. Danziger and Barbara G. Billet for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Although some might characterize the articles in question as somewhat sensational, on the record before us we can find no triable issues of fact as to their literal falsity. Plaintiff’s complaint conclusorily alleges only that the implicated statements were “wholly false and without foundation”. His bill of particulars does little more than assert that if additional facts had been included in the articles and editorials there would have been a more balanced picture of the actual circumstances surrounding plaintiff’s activities. As it was, he complains that it created adverse inferences. That was not enough.

Further, in opposing summary judgment, the plaintiff relies solely upon the affirmation of his attorney, who was without personal knowledge of the facts. This did not supply the evidentiary showing necessary to successfully resist the motion (see CPLR 3212, subd [b]; Rotuba Extruders v Ceppos, 46 NY2d 223, 229, n 4).

Moreover, since this is a public figure libel case, it was incumbent on the plaintiff upon defendant’s motion for summary judgment to produce evidence tending to demonstrate both the falsity of the published statements and that they were made with actual malice, i.e., deliberate or reckless falsehood (New York Times Co. v Sullivan, 376 US 254, 280). Plaintiff comes no closer to meeting such a prescription than to have his attorney argue that Albany newspapers “would like nothing better than to crucify the so-called ‘O’Connell’ and/or ‘Corning’ machines” and to point out that defendant’s reporters admitted that their investigatory techniques included misrepresentation of their identities. In doing so, the plaintiff ignores the fact that malice in the context of this litigation would not “be equated with a base or unworthy motive” (Rinaldi v Viking Penguin, 52 NY2d 422).

Finally, plaintiff’s argument that summary judgment should be denied because all the facts as to malice were within the knowledge of the defendants is equally lacking in merit. While CPLR 3212 (subd [f]) authorizes discovery in such circumstances, the record does not demonstrate that plaintiff availed himself of such procedures during the three years that elapsed between commencement of the action and the making of the summary judgment motion (see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.18, pp 32-194 to 32-195).

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

Order affirmed, with costs, in a memorandum.


text:
    Norman R. Shadduck, as Chairman of the Broome County Legislature, Appellant, v Joseph D. Ciotoli et al., Respondents.
    Argued February 16, 1981;
    decided April 7, 1981

      APPEARANCES OF COUNSEL

      N. Theodore Sommer, Clayton M. Axtell, Jr., and A. Lawrence Abrams for appellant.

      John E. Murray, County Attorney, for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (76 AD2d 1000) to which we add only that the dissent’s reading of the charter provision ignores the words “by the next regular meeting occurring more than fifteen (15) days after the filing” (emphasis supplied), which impose a limitation of time as well as type of session.

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

Chief Judge Cooke (dissenting). The ultimate issue in this case is whether the Broome County Legislature properly and timely exercised its power, under the county charter, to reject an executive appointment. Because of the interpretation accorded the term “regular meeting” by the majority, I must dissent.

On March 30, 1979, the County Executive appointed Joseph Ciotoli to be Broome County Personnel Officer. At a regular meeting of the county legislature on April 17, 1979, a vote on a resolution to confirm the appointment was tied, 9 to 9, with one legislator absent. The meeting was recessed until May 1, 1979. On May 1, the chair permitted the absent legislator, Carl Young, to record his vote against confirmation, and' declared the resolution defeated. A challenge was made to the chair’s decision to allow Young to vote and was defeated, 12 to 6. The chair notified the county comptroller that the appointment had been rejected, and the comptroller refused to certify salary payments to Ciotoli. Nonetheless, the commissioner of finance continued to pay Ciotoli’s salary. The chairman of the legislature then instituted this action for declaratory and injunctive relief.

The Appellate Division held that, pursuant to section 310 of the Broome County Charter, when the legislature failed to reject the appointment on April 17, 1979, the appointment was deemed confirmed. A majority of this court now affirms on that reasoning.

Section 310 of the County Charter provides: “In the event that the County Legislature has neither confirmed nor rejected by majority of the whole number of members of the County Legislature an appointment by the next regular meeting occurring more than fifteen (15) days after the filing of appointment with the Clerk of the County Legislature, such appointment shall be deemed confirmed.” Under this provision, there is no doubt that if the county legislature desires to reject an executive appointment, it must do so at the next regular meeting held more than 15 days after the appointment is filed. In this case, the April 17 meeting met this requirement. However, at the meeting, the county legislature did not merely fail to reject the appointment; it also recessed the meeting to another day and time, May 1.

It is a universally accepted principle that, when a legislature recesses or adjourns a regular meeting to a particular date, the later meeting is but a continuation of the regular meeting and “all municipal action taken * * * [during the continuation] is as valid as if taken on the first” day of the regular meeting (62 CJS Municipal Corporations, § 394; e.g., Collins v Sauer, 89 NJL 139; Del Greco v Mayor of Revere, 1 Mass App 135; City of Picayune v Mississippi Power Co., 197 F2d 444). Thus, under this rule, the May 1 meeting was the legal equivalent and part and parcel of the April 17 meeting. It follows that the appointment was indeed rejected at the next regular meeting held more than 15 days after it was filed and thus was not deemed confirmed pursuant to section 310.

For unexplained reasons, a majority of this court now holds that the appointment was not properly rejected on May 1. Either the court is rejecting the accepted rule that the May 1 meeting was a continuation and part of the earlier regular meeting or the court is adding a gloss to section 310 of the charter and requiring the county legislature to reject the appointment only at the first session or on the first day of its regular meeting. To me, either line of reasoning is unacceptable.

No authority cited by the parties holds that the county legislature is precluded from deferring consideration of items of business by adjourning a regular meeting to a later date, in the absence of some constitutional or other restriction. Indeed, to refuse to allow such adjournments unduly hamstrings the county legislature with no commensurate gain and represents unwarranted judicial interference with the legislative process. Quite simply, if the organic document under which the county legislature operates has not prevented that body from adjourning its meetings to another date, it is improper and a violation of the fundamental notion of separation of powers for a court to do so.

Nor can the charter provision at issue be read to prohibit the county legislature from adjourning consideration of an executive appointment. The charter requires only that the appointment be taken up at the next regular meeting held more than 15 days after its filing. It does not provide that the regular meeting may not be recessed to another time and it does not state that the appointment must be disposed of on the first day or at the first session of the meeting. Nor must the affairs of a regular meeting be concluded by midnight on the first day for which it is called. To add to the charter such requirements merely to insure speedy legislative consideration of appointments — as the Appellate Division reasoned — is unjustifiable. Had the drafters of the charter, who must be presumed to possess knowledge of the existing legislative power to adjourn meetings, intended that result it is obvious that they would have expressly provided for it. Moreover, given that the county legislature establishes the dates of its own regular meetings, the majority decision cannot possibly insure prompt consideration of appointments; the county legislature can avoid considering any particular appointment for a time by failing to hold a regular meeting. Not only does this confirm the legislature’s ultimate control of the timing of the confirmation process — subject to the express limits of the charter — but it also demonstrates the futility of attempting to impose a restriction on the county legislature that is not in accord with parliamentary law or the county charter.

For these reasons, I would give effect to the charter provision as it is written and hold that the county legislature properly rejected the Ciotoli appointment. The order of the Appellate Division should be reversed and the judgment of the Supreme Court reinstated.

Order affirmed, etc.

       Although the minutes of the meeting state that the resolution to confirm the appointment “lo.st”, this entry is not attributed to the chair or any other official. Inasmuch as section 310 of the county charter requires a majority of the whole legislature (10 votes) to reject or confirm an appointment, I do not contend that the appointment was rejected on April 17. Of course, had the resolution to confirm the appointment actually failed on April 17, there would be no need to consider the events of May 1.


text:
    Anthony Morrello, Appellant, v Saratoga Harness Racing, Inc., Respondent.
    Argued February 20, 1981;
    decided April 7, 1981

      APPEARANCES OF COUNSEL

      Richard A. Insogna for appellant.

      David W. Morris for respondent.
   OPINION OF THE COURT

Order reversed, with costs, for reasons stated in the dissenting memorandum by former Justice Louis M. Greenblott at the Appellate Division (75 AD2d 921, 922-924) and, on the basis of the Appellate Division’s reversal on the facts, case remitted to Supreme Court, Montgomery County, for a new trial (see Cohen and Karger, Powers of the New York Court of Appeals, § 131, p 540).

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


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property in Richmond Parkway, Section II, in the Borough of Richmond. Fred P. Goldhirsch et al., Appellants.
    Submitted March 30, 1981;
    decided April 7, 1981
   Motion to dismiss the appeal denied.


text:
    Parochial Bus System, Inc., Appellant, v Harrison J. Goldin, as Comptroller of the City of New York, Respondent.
    Argued March 30, 1981;
    decided April 9, 1981

      APPEARANCES OF COUNSEL

      Samuel B. Zinder for appellant.

      Allen G. Schwartz, Corporation Counsel (Stephen J. McGrath and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (Matter of Goldin v Greenberg, 49 NY2d 566).

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


text:
    Raymond Dominquez, Appellant, v Dennis De Tiberus, Respondent.
    Decided April 9, 1981

      APPEARANCES OF COUNSEL

      Thomas J. Mason for appellant.

      Gary Carlton for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    Anna M. Pennisi, Appellant, v City of New York et al., Defendants, and Realux Realty, Inc., Respondent.
    Decided April 9, 1981

      APPEARANCES OF COUNSEL

      Jerome D. Silberstein for appellant.

      Louis J. Castellano, Jr., for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in granting the motion to dismiss the action unconditionally as against defendant Realux Realty, Inc., pursuant to CPLR 3216.

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


text:
    Board of Education of the City of New York, Respondent, v Robert Glaubman, Appellant.
    Argued March 24, 1981;
    decided April 9, 1981

      APPEARANCES OF COUNSEL

      Howard N. Meyer for appellant.

      Allen G. Schwartz, Corporation Counsel (Trudi Mara Schleifer and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

At the outset we note that sections 2585 and 2588 of the Education Law which contain provisions setting forth substantive rules regarding layoffs and recall, do not manifest such a strong public policy that disputes as to those matters are precluded from submission to arbitration (cf. Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 419 [Breitel, Ch. J., concurring] ). Additionally, the dispute which the grievant sought to have submitted to arbitration involved his right to be rehired on the basis of his seniority and we find no merit in the board’s contention that this matter was intended to be excluded from the scope of arbitrable grievances under the collective bargaining agreement merely because statutory provisions address basic rules regarding rehiring practices (Education Law, §§2585, 2588). Although the agreement states that a grievance does not include matters for which “a method for review is prescribed by law”, it is clear that the statutes cited did not mandate a particular method of review and do not preclude submission to arbitration of issues regarding specific rehiring practices within the broad statutory rules (Matter of South Colonie Cent. School Dist. [South Colonie Teachers Assn.], 46 NY2d 521).

It would seem apparent that questions arising with respect to “recall” which in turn depend upon seniority rating lists prepared by the chancellor, would be arbitrable within the broad concept of the agreement of the parties, which defines a grievance as follows: “A ‘grievance’ shall mean a complaint by an employee in the bargaining unit (1) that there has been as to him a violation, misinterpretation or inequitable application of any of the provisions of this agreement or (2) that he has been treated unfairly or inequitably by reason of any act or condition which is contrary to established policy or practice governing or affecting employees”.

Although we noted in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.) (42 NY2d 509, 512) that the choice of the arbitration forum should be “express” and “unequivocal” we did not mean to suggest that hairsplitting analysis should be used to discourage or delay demands for arbitration in public sector contracts (see, e.g., Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23; Board of Educ. v New Paltz United Teachers, 44 NY2d 890; Matter of Port Jefferson Sta, Teachers Assn. v Brookhaven Comsewogue Union Free School Dist., 45 NY2d 898; Matter of Board of Educ. v United Federation of Teachers, 46 NY2d 1018; Matter of Board of Educ. v Roosevelt Teachers Assn., 47 NY2d 748; Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669; Board of Educ. v Patchogue-Medford Congress of Teachers, 48 NY2d 812; Matter of Board of Educ. [Hess], 49 NY2d 145; Board of Educ. v Barni, 49 NY2d 311).

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

Order reversed, with costs, and the judgment of Supreme Court, Kings County, reinstated in a memorandum.


author: Jasen, J.

text:
    The People of the State of New York ex rel. James Henry Spinks, Appellant, v David R. Harris, as Superintendent of Green Haven Correctional Facility, Respondent.
    Argued March 25, 1981;
    decided April 9, 1981
    APPEARANCES OF COUNSEL

      Richard C. Schisler for appellant.

      Robert Abrams, Attorney-General (Burton Herman and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the application for a writ of habeas corpus granted.

On August 26, 1978 relator was released from custody pursuant to an order of the Board of Parole. Release on that date was consistent with a certification made by the Department of Correctional Services that at that time relator would have completed service of his minimum term. Subsequently, however, some correctional employee, or employees, concluded that the Parole Board’s order was based upon an erroneous computation and that relator should be returned to custody immediately and summarily. Thus apparently without informing the Board of Parole or seeking to have its release order vacated, correctional officers arrested relator at his home and returned him to prison in November of 1978.

In view of the fact that the Board of Parole issued an order authorizing the relator’s release and that this order had not been withdrawn by the board, his arrest and incarceration is without any lawful basis in the record.

Accordingly, the application for a writ of habeas corpus should be granted and relator should be released on parole. This determination, however, is without prejudice to the right of the respondent or the Board of Parole to institute such proceedings or take such other action to correct the alleged error, as they may be advised.

Jasen, J.

(dissenting). I would affirm the order of the Appellate Division.

The Department of Correctional Services had the authority to retake and return petitioner to confinement because he was properly sentenced by a court for a definite term and was released from its custody by mistake.

' After the sentencing court committed petitioner to the custody of the Department of Correctional Services, the department was required by law to confine him for at least the minimum period imposed. Since it is conceded that the petitioner had not fully served the minimum period imposed, prior to his mistaken release contrary to law, the department had not only the authority to retake petitioner and return him to confinement, but it also had the duty to do so. (CPL 430.20, subd 1.)

Petitioner’s contention that the department waived its right to further jurisdiction and custody over him is without merit. We have recently held that mistaken release from prison does not, absent exceptional circumstances, give rise to a right to continued liberty. (People v Cavelli, 50 NY2d 919.) Here, there are no exceptional circumstances, such as release for a long period of time. Nor, in my view, does the fact that petitioner was paroled, rather than released outright, make any difference. Inasmuch as petitioner was not eligible for parole at the time of his mistaken release, the Board of Parole lacked power to release him prior to the expiration of his minimum period of imprisonment. Thus, the board’s act was a nullity and petitioner’s release on parole is of no legal effect.

While it may be true that due process considerations would generally require that a prematurely released prisoner be given an opportunity to be heard on the issue of whether his minimum sentence was properly calculated, no such procedure is required where, as here, the prisoner concedes that his initial release was improper. Moreover, as a procedural matter, the writ of habeas corpus does not lie where the sole relief available is an order authorizing an opportunity to be heard. Such a writ operates on the person of the petitioner and is available only where petitioner can demonstrate a right to immediate release from custody. (People ex rel. Douglas v Vincent, 50 NY2d 901, 903.) Thus, even if the propriety of petitioner’s release were still a matter of some dispute, habeas corpus would not lie because, at most, he would be entitled to an opportunity to be heard and not to immediate release.

In short, because there was no lawful authority for petitioner’s release, the Department of Correctional Services remained responsible for carrying out the mandate of the sentencing court to confine the petitioner for the minimum period of imprisonment. Consequently, the Correction Department had the responsibility, as well as the duty, to return petitioner to confinement to complete the lawfully imposed sentence.

It having been established beyond cavil that petitioner is being detained pursuant to a lawful order of confinement issued by the sentencing court, the habeas corpus writ was properly dismissed.

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

Order reversed, without costs, the petition for a writ of habeas corpus granted and relator released on parole, in a memorandum.

       The statute provides in pertinent part: “§ 430.20 Commitment of defendant. 1. In general. When a sentence of imprisonment is pronounced, * * * the defendant must forthwith be committed to the custody of the appropriate public servant and detained until the sentence is complied with.” (Emphasis added.)


text:
    Yolanda Andrews, Respondent, v Thomas A. Andrews, Appellant.
    Argued March 30, 1981;
    decided April 9, 1981

      APPEARANCES OF COUNSEL

      J. Edward Meyer, III, Richard H. Weis and Allan H. Carlin for appellant.

      Israel Machtey and Lawrence Levine for respondent.

      Robert Abrams, Attorney-General (Robert J. Schack and Shirley Adelson Siegel of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Order affirmed, with costs. The Appellate Division did not abuse its discretion or apply an incorrect standard of law.

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


text:
    The People of the State of New York, Respondent, v Bruce Jones, Appellant.
    Decided April 9, 1981
    APPEARANCES OF COUNSEL

      Robert D. Cook for appellant.

      Michael Kavanagh, District Attorney (Susan Shaw of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed. Under the circumstances of this case, we cannot say as a matter of law that the trial court abused its discretion in advancing the trial date by one week. We have examined defendant’s other contentions and find no reversible error.

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


text:
    A. L. Blades & Sons, Inc., et al., Respondents, v Philip Ross, as Industrial Commissioner of the State of New York, Appellant.
    Argued March 30, 1981;
    decided April 9, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (John Q. Driscoll and Shirley Adelson Siegel of counsel), for appellant.

      Robert F. Silkey for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice J. Clarence Herlihy at the Appellate Division (76 AD2d 151).

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


text:
    Matter of Schultz Construction, Inc., Respondent, v Phillip Ross, as Industrial Commissioner of the State of New York, Appellant.
    Argued March 30, 1981;
    decided April 9, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (John Q. Driscoll and Shirley Adelson Siegel of counsel), for appellant.

      Victoria A. Graffeo for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice J. Clarence Herlihy at the Appellate Division (76 AD2d 151).

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


text:
    Diane M. D’Ambrosio, an Infant, by Her Mother and Natural Guardian, Rose D’Ambrosio, Appellant, et al., Plaintiff, v City of New York, Defendant and Third-Party Plaintiff-Respondent. Margaret S. Hopp, Third-Party Defendant-Appellant.
    Decided April 9, 1981
   Appeals dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that they do not lie (NY Const, art VI, § 3, subd b, par [7]).


text:
    In the Matter of Dean E. Higgins, Appellant.
    Decided April 9, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Jasen taking no part.


text:
    Slavenburg Corporation, Appellant, v Opus Apparel, Inc., et al., Defendants, and Louis Kestenbaum, Respondent.
    Argued March 23, 1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      Robert J. Clerkin and Richard Turyn for appellant.

      Louis Strassberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order and the judgment of Supreme Court, New York County, reinstated. The question certified should be answered in the negative.

We agree with the dissenter in the Appellate Division that the guarantee agreement signed by defendant Kestenbaum was so broad as to encompass the subsequent letter agreement between plaintiff and Nu-Ka-Pool Apparel, Inc., and that the subsequent execution of that agreement did not release him from his personal guarantee. Defendant’s conclusory allegation that the corporate officer who entered into the agreement on behalf of Nu-Ka-Pool was without authority to do so is insufficient to raise a question of fact on this issue. Indeed, none of defendant’s contentions on this appeal are supported by evidentiary facts sufficient to defeat a motion for summary judgment. Thus, in our view, Special Term properly granted summary judgment to plaintiff, and properly denied defendant’s motion to serve an amended answer.

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

Order reversed, etc.

       We note that the affirmation of defendant Kestenbaum, upon which he heavily relies, is not in an authorized form. Only an attorney, physician, osteopath or dentist authorized to practice within this State can serve and file an affirmation bearing his signature alone in lieu of and with the same force and effect as an affidavit. (CPLR 2106.) Moreover, even those persons who are statutorily allowed to use such affirmations cannot do so when they are a party to an action. (See Schutzer v Suss-Kolyer, 57 AD2d 613.) It is also true, of course, that any person who, for religious or other reasons, wishes to use an affirmation as an alternative to a sworn statement may do so. However, to be effective such an affirmation must be made before a notary public or other authorized official. (CPLR 2309.) Otherwise, the affirmation would be of no probative value because the affirmant would not be answerable for the crime of perjury should he make a false statement. (Penal Law, § 210.00, subd 1.)


text:
    Dallek, Inc., Appellant, v 83 Spring Street Corp. et al., Respondents.
    Submitted March 24,1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      Steven W. Wolfe for appellant.

      Steven R. Greenes for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. Appellant has not demonstrated that there was any error of law in the disposition at the Appellate Division.

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


text:
    The People of the State of New York, Respondent, v Willie Mack, Appellant.
    Argued March 25, 1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      Frank M. Blancato for appellant.

      Carl A. Vergari, District Attorney (Gerald D. Reilly and Anthony J. Serrino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant appeals from an order affirming his conviction, on a plea of guilty, of assault in the second degree. The underlying alleged error on which he grounds his appeal was the denial of his motion to dismiss the indictment for failure of compliance with the provisions of former subdivision 2 of section 812 of the Family Court Act (L 1977, ch 449), which at the time of his prosecution provided:

“The presiding justice of each judicial department shall designate by rules of court the appropriate law enforcement official, who may be a probation officer, warrant officer, sheriff, police officer or any other law enforcement official, to advise any petitioner or complainant bringing a proceeding under this section, before such proceeding is commenced, of the procedures available for the institution of family offense proceedings, including but not limited to the following:

“(a) That there is concurrent jurisdiction with respect to family offenses in both family court and the criminal courts;

“(b) That a choice of forum by a complainant or petitioner bars any subsequent proceeding in an alternative court for the same offense;

“(c) The legal, social and practical consequence of an adjudication by the family court and that an adjudication in family court is for the purpose of attempting to keep the family unit intact. Referrals for counseling, or counseling services, are available through probation for this purpose.

“(d) The legal, social and practical consequence of an adjudication by the criminal courts and that an adjudication in the criminal courts is for the purpose of punitive action against the offender.”

It is his contention that the criminal action was jurisdictionally defective because the proceeding concerned acts which would constitute assault in the second degree between spouses and because his wife as complainant was never advised of the procedures available for the institution of family offense proceedings in Family Court in compliance with the statutory prescription.

There is a threshold procedural obstacle to consideration of defendant’s substantive contention which he cannot surmount; by his plea of guilty he waived his right to advance his present contention on appeal. In an effort to overcome this waiver defendant advances two arguments. In the first place he argues that the failure to advise his wife constituted a jurisdictional defect and accordingly survives his guilty plea. The provisions of subdivision 2 do not, however, go to the jurisdiction or authority of Supreme Court to entertain the present prosecution. At most they consist of a threshold, statutory directive with respect to procedures to be followed for access to the Family Court or to the criminal courts, unrelated to the judicial competence of those courts. Nothing in the statute or in the legislative history of its enactment suggests that it was intended or even visualized that the consequence of failure to give the advice contemplated would oust either Family Court or the criminal courts, or conceivably both courts (which are expressly given concurrent jurisdiction), of authority to entertain prosecutions concerning family offenses. Additionally, it appears that the statutory provisions in question are intended to alert complainants to their right to choose the court of prosecution, which choice defendants have no right to command. In any event, however the prescription of the statute is to be conceptually classified, there is no substance to defendant’s assertion that failure of compliance constitutes a non waivable jurisdictional infirmity.

In the second place, defendant asserts that at the time of plea he expressly reserved the claim he now makes. While it seems more likely that defense counsel was merely indicating in response to a query from the court that he was not waiving jurisdictional challenges which he would otherwise be entitled to raise on appeal, even if the colloquy disclosed in the plea minutes be interpreted as an express reservation of his present contention, it is unavailing. A defendant cannot by a unilateral recital of an intention or desire to preserve a legal contention evade what would otherwise be the consequences of his guilty plea.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Ronald Purdy, Appellant.
    Argued March 26, 1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      Melvin N. Borowka for appellant.

      Mario Merola, District Attorney (Peter D. Coddington and Timothy J. McGinn of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, plea vacated, defendant’s statement sup- , pressed and case remitted to Supreme Court, Bronx County, for further proceedings on the indictment (People v Grant, 45 NY2d 366, 379-380).

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


text:
    In the Matter of Edward Horton, Claimant, v McArdle & Casazza et al., Respondents. Workers’ Compensation Board, Appellant.
    Argued March 23, 1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Henriette Frieder, Shirley Adelson Siegel, Howard B. Friedland and Theresa E. Wolinski of counsel), for appellant.

      George Cholet and Patrick E. Harnedy for Special Fund for Reopened Cases, respondent.
   OPINION OF THE COURT

Memorandum.

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

Claimant, who sustained a disability as a result of two contributing causes, both of which are compensable, seeks workers’ compensation benefits. The first injury occurred on April 11, 1968 and, though payments were made for a time due to this injury, the case eventually was closed. The claimant was injured again in 1977 with this injury being compounded in effect by the consequences of the first injury. The board allowed the 1968 case to be reopened and determined that the 1968 accident was two thirds responsible for the final disability, while the 1977 injury was responsible for one third of. the disability. The respondent Special Fund for Reopened Cases (see Workers’ Compensation Law, § 25-a) was required to pay two thirds of the final disability rate.

The fund argues that such an award directly contravenes section 15 (subd 6, par [e]) of the Workers’ Compensation Law insofar as it exceeds the statutory maximum of $60 per week set for accidents occurring between July 1, 1965 and July 1,1968. The Appellate Division concluded, and we agree, that this statute effectively limits the fund’s liability. Although this court in the past has given liberal construction to those portions of section 15 where general language rendered the meaning of the term “the time the injury occurred” somewhat obscure (see Matter of Meszaros v Goldman, 307 NY 296; cf. Matter of Crawley v Failla, 6 NY2d 57), no such interpretive approach can be followed here, where the portion of section 15 to be applied is specific with respect to the dollar limit on an award which falls within a specific statutory time period, to wit: “[compensation for * * * disability due to an accident * * * that occurs on or after July first, nineteen hundred sixty-five, shall not exceed sixty dollars per week” (Workers’ Compensation Law, § 15, subd 6, par [e]). The statutory language is clear. If it felt that the limitation on awards for injuries during this time period is too low, it is the duty of the Legislature and not this court to make the appropriate amendment.

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

Order affirmed, with costs, in a memorandum.


author: Meyer, J.

text:
    In the Matter of Carol Belding, Appellant, v Alfred P. Belding, Respondent.
    Argued March 25, 1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      Arnold B. Firestone for appellant.

      Stephen Gassman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. There has been no abuse of discretion by the Appellate Division as a matter of law.

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

Meyer, J.

(dissenting). The Appellate Division vacated the Family Court order, with the statement that it did so on the law. This is not a case like Jump v Jump (49 NY2d 783), in which the memorandum at the Appellate Division in discussing the weight of the evidence made clear that its reversal was not, as stated, “on the law”, but on the facts. Vacatur having been stated to be “on the law”, the factual findings of the Family Court are presumed not to have been considered (CPLR 5612, subd [a]), and the Appellate Division memorandum which recites some, but not all, of the facts found by the Family Court without disagreeing with them, does not, like the Jump memorandum, overcome the statutory presumption.

The courses open to the Appellate Division on an appeal from a support order involve the facts, the law and the exercise of discretion. It may reject the lower court’s findings of fact and make new findings on the basis of which it may then affirm; or since it exercises the same powers as the lower court, raise, lower or eliminate the award in the exercise of discretion, notwithstanding that the lower court order could not be said to be an abuse of discretion; or it may conclude on the basis of the facts newly found by it that the award was so erroneous that no court could properly have made it and reverse on the law and the facts.

When the Appellate Division’s ruling is made on the law, ' rather than on the law and the facts, however, it necessarily accepts the Family Court’s findings as true, in much the same way that in passing on whether a complaint states a cause of action it must accept as true the allegations of the complaint. Having accepted the facts as found, it may affirm the award as based upon the proper standard and not an abuse of discretion; alter the award in the exercise of its own discretion, because though it accepts the facts found it believes that sound discretion calls for a different result; or hold, as did the Appellate Division in this case, that on the facts found below, no court applying the required standard of law could reach the conclusion adopted by the trial court.

Here the Appellate Division held petitioner entitled to no award because of her earning ability, the short duration of the marriage, the fact that it was a childless marriage, and the facts that she was living alone in the marital home and had $2,600 in the bank and the use of an automobile. Though not disagreeing with the Family Court’s findings that petitioner’s income was $108 per week less than her needs and that respondent was capable of paying any reasonable amount of support ordered, it failed to consider those facts. Yet considering the difference in means and needs of the parties, it cannot be said that the Family Court in awarding petitioner support either applied an incorrect standard or abused its discretion as a matter of law. Moreover, in view of that difference and its statement that it was acting on the law, it cannot be supposed that the Appellate Division in vacating the award was substituting its discretion for that of the Family Court.

In concluding as a matter of law that an award of support was unwarranted on the facts found by the Family Court, the Appellate Division erred on the law. The matter should, therefore, be remitted to the Appellate Division for consideration of the facts or for the exercise by it of its discretion.

Order affirmed, etc.


text:
    In the Matter of Carrol’s Development Corporation, Respondent, v Beth Gibson et al., Constituting the Zoning Board of Appeals of the Town of Penfield, Appellants.
    Argued March 31, 1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      Richard J. Horwitz and Richard A. Kroll for appellants.

      Robert P. Hanks for respondent.
   OPINION OF THE COURT

Determination appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 1050). We note that, for the purposes of a CPLR 5601 (subd [d]) appeal, appellants are parties aggrieved within the meaning of CPLR 5511.

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


text:
    In the Matter of Georgette Tillman, Appellant, v John Fahey, as Commissioner of the Albany County Department of Social Services, et al., Respondents.
    Argued March 27, 1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      E. Marta Sachey for appellant.

      Robert Abrams, Attorney-General (Clifford A. Royael and Shirley Adelson Siegel of counsel), for Barbara Blum, as Commissioner of the New York State Department of Social Services, respondent.

      Robert Lyman, County Attorney (Alan P. Joseph and Philip R. Murray of counsel), for John Fahey, as Commissioner of the Albany County Department of Social Services, respondent.
   OPINION OF THE COURT

Judgment affirmed, without costs. The determination of the commissioner, made after a statutory fair hearing, is supported by substantial evidence in the record.

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


text:
    The People of the State of New York, Respondent, v Carmine A., Appellant.
    Argued March 26, 1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      Stephen R. Mahler and Andrew M. Engel for appellant.

      John J. Santucci, District Attorney (Aley Z. Alexander of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the plea vacated, the statement suppressed and the matter should be remitted to the Supreme Court, Queens County, for further proceedings.

Indicted for criminal possession of a weapon in the third degree and criminal trespass in the third degree, defendant moved to suppress the .25 caliber pistol which is the subject of the first count as the product of an unlawful search and seizure and to suppress a statement (that he had found the weapon in an abandoned car) on the ground that it was involuntary. The hearing Judge found the statement voluntary. He also found seizure of the pistol lawful, because it was the product of the movement after defendant’s arrest of the car defendant had been driving to a more secure area on the racetrack premises for safekeeping. The Appellate Division affirmed, without opinion.

There was no error of law involved in the finding of the courts below that movement of the car for safekeeping was justified and resulted in discovery and seizure of the pistol. With respect to his statement, defendant argues that it was the result of psychological coercion in that it was made after the statement by one of the officers to the other in defendant’s presence, while the gun was being vouchered at the precinct, that since defendant denied knowledge of the gun and the car was registered in his aunt’s name perhaps she should be arrested for possession of it.

Were voluntariness the only issue, the affirmed finding that the statement was voluntarily made would require affirmance. The People concede, however, that in response to Miranda warnings as given to him defendant answered “No” to the inquiry whether he was willing to answer questions without an attorney present.

Thus, defendant invoked his right to counsel prior to the making of the statement sought to be suppressed (People v Dean, 47 NY2d 967). Though his right to counsel was neither preserved nor argued to the courts below or in the briefs in this court, the right is, as we made clear in People v Ermo (47 NY2d 863, 865), so fundamental that a defendant’s failure to raise the contention does not foreclose our reaching it.

A statement by a defendant in custody who has invoked his right to counsel must be suppressed unless it is in fact spontaneous (People v Lucas, 53 NY2d 678). In finding defendant’s statement voluntary the hearing Judge only passed upon whether it was the result of intimidation or coercion, not on whether it was spontaneous. A statement which is the result of interrogation is not spontaneous, for as we stated in People v Maerling (46 NY2d 289, 302-303) and have recently repeated in People v Lucas (53 NY2d 678, supra), “the spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed.” Here, that cannot be said. Since defendant’s statement was not spontaneous and since it was made after defendant indicated that he wanted an attorney, it must be suppressed.

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

Order reversed, plea vacated, defendant’s statement suppressed and case remitted to Supreme Court, Queens County, for further proceedings on the indictment in a memorandum.


text:
    The People of the State of New York, Appellant, v Robert Banks, Respondent.
    Argued March 23, 1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Carol Y. Kenderick and Billie Manning of counsel), for appellant.

      Thomas H. Busch and William E. Heller stein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of two supermarket armed robberies. Two prosecution witnesses, each a cashier at one of the supermarkets, testified at trial about her prior lineup identification of defendant. Those lineups violated defendant’s right to counsel because each was conducted pursuant to a court order, but in the absence of counsel and without a valid waiver (see People v Lloyd Winston G., 45 NY2d 962, 963-964; People v Coleman, 43 NY2d 222).

The People argue, however, that defendant failed to preserve the issue for appellate review because he did not specifically advance as a basis for pretrial suppression the claim that because of the court order his right to counsel had attached (see People v Tutt, 38 NY2d 1011). Instead, they note, defendant argued that his right to counsel at the lineup had been violated because the People in order to forestall that right improperly delayed obtaining an indictment. That argument has since been abandoned by defendant on appeal. Alternatively, the People argue, even if the error was preserved, the receipt of such lineup identification testimony was harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 237). We accept the analysis of the majority below to the extent it rejected the harmless error argument. We take this opportunity, however, to comment briefly on the preservation issue.

That the specific right to counsel issue here urged on appeal was not urged at the trial level is immaterial. The constitutional right to counsel is fundamental and its denial may, therefore, be raised for the first time on appeal (People v Samuels, 49 NY2d 218, 221). While we have often articulated this principle with respect to the suppression of confession evidence (see People v Carmine A., 53 NY2d 816 [decided herewith] ; People v Samuels, supra; People v Bean, 47 NY2d 967; People v Ermo, 47 NY2d 863; People v Arthur, 22 NY2d 325, 329), it has no less vitality where the supression of identification evidence is sought.

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

Order affirmed in a memorandum.


text:
    In the Matter of Martin Herzog, Appellant, v Daniel W. Joy, as Commissioner of the Department of Rent and Housing Maintenance, Respondent.
    Argued March 27, 1981;
    decided April 28, 1981

      APPEARANCES OF COUNSEL

      Joseph Gaier and Larry Sutton for appellant.

      Alan W. Ginsberg and Harry Michelson for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (74 AD2d 372).

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


text:
    Vincent E. Arnold et al., Respondents, v New York City Condominiums Corp., Appellant. (And a Third-Party Action.)
    Submitted March 30, 1981;
    decided April 28, 1981
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Fuchsberg taking no part.


text:
    In the Matter of Cynthia Mock et al., Appellants, v La Guardia Hospital-HIP Hospital, Inc., Respondent.
    Submitted March 30, 1981;
    decided April 28, 1981
   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).


text:
    The People of the State of New York, Respondent, v Wenfred Crump, Appellant.
    Argued March 31, 1981;
    decided April 30, 1981
    APPEARANCES OF COUNSEL

      Joseph A. Shifflett, Rose H. Sconiers and Joseph B. Mistrett for appellant.

      Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The trial court in this case made no inquiry on the record to ascertain whether the defendant was aware of the potential risks inherent in defense counsel’s joint representation of defendant and James Barclay, a codefendant. This failure to inquire is reversible error if there is a “significant possibility” of conflict of interest between defendant and Barclay. (See, e.g., People v Macerola, 47 NY2d 257, 264; People v Baffi, 49 NY2d 820, 822.) Here, defendant and Barclay were both alleged to have had possession of certain proceeds of a crime. Had they been represented by separate counsel, each might have attempted to show that the fruits of the crime were in the sole possession of the other. Hence, a “significant possibility” of conflict of interest is apparent in the record and the trial court’s failure to inquire into defendant’s awareness of the risks inherent in joint representation must result in a reversal of defendant’s conviction.

We note also that inasmuch as both the trial court’s failure to make any inquiry and the conflict of interest between defendant and Barclay are discernible from the record, the question of whether defendant was deprived of the effective assistance of counsel is appropriate for resolution on defendant’s direct appeal from his conviction. While it is true that claims of ineffective assistance of counsel often involve factual questions which can best be addressed in a collateral or postconviction proceeding brought under CPL 440.10 (see People v Brown, 45 NY2d 852, 854), where, as here, the record discloses that reversible error has occurred below, defendant should not be relegated to such collateral proceedings to obtain relief.

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

Order reversed, etc.


text:
    In the Matter of St. Francis Hospital, as Attorney in Fact for Joseph Lopilato, Respondent, v Joseph A. D’Elia, as Commissioner of the Nassau County Department of Social Services, Respondent, and Barbara Blum, as Acting Commissioner of the Department of Social Services of the State of New York, Appellant.
    Argued March 25, 1981;
    decided April 30, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Judith A. Gordon and Shirley Adelson Siegel of counsel), for appellant.

      Jeffrey Weingard, Roy Broudny, Neil N. Goldman and Aaron R. Cahn for petitioner-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Presiding Justice Milton Mollen at the Appellate Division (71 AD2d 110).

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


text:
    In the Matter of South Nassau Communities Hospital, as Attorney in Fact for Concepcion Dominquez, Respondent, v Joseph A. D’Elia, as Commissioner of the Nassau County Department of Social Services, Respondent, and Barbara Blum, as Acting Commissioner of the Department of Social Services of the State of New York, Appellant.
    Argued March 25, 1981;
    decided April 30, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Judith A. Gordon and Shirley Adelson Siegel of counsel), for appellant.

      Jeffrey Weingard, Roy Broudny, Neil N. Goldman and Aaron R. Cohn for petitioner-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Presiding Justice Milton Mollen at the Appellate Division (71 AD2d 110).

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


text:
    The People of the State of New York, Respondent, v James D. Patterson, Appellant.
    Argued March 30, 1981;
    decided April 30, 1981

      APPEARANCES OF COUNSEL

      Mark D. Fox for appellant.

      Edward J. Meyer, District Attorney (Michael Schwartz and Martin R. Goldberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Examination of the record discloses that defendant’s motion to suppress his statements made to the police was predicated solely on the contention that the statements had not been made voluntarily and that their introduction in evidence would violate defendant’s constitutional privilege against self incrimination. There are affirmed factual determinations that the statements were voluntarily made, that constitutional preinterrogation warnings were duly given when required, and that there was no violation of defendant’s constitutional rights. This circumstance places defendant’s contentions on this ground beyond the reach of our appellate review inasmuch as the affirmed findings are not infected with error as a matter of law.

The contention now advanced that the statements should be suppressed because they were taken in violation of defendant’s constitutional right to be secure in his person against unreasonable seizure has not been preserved for our review.

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

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v William K. Dorler, Jr., Appellant.
    Argued March 31, 1981;
    decided April 30, 1981

      APPEARANCES OF COUNSEL

      Bruce K. Carpenter for appellant.

      John T. Ward, District Attorney (Albert W. Foley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Review of Raynor’s trial testimony, including his readiness to there accept the accuracy of the version of the events he had tendered to the police and his earlier Grand Jury testimony, indicates that whether he was an accomplice of the defendant within the compass df GPL 60.22 (subd 2) was a question of fact. It, therefore, was error for the trial court to deny defendant’s request that it charge the jury to that effect.

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

Order reversed, etc.


text:
    In the Matter of Veronica Joseph, Appellant, v New York University Medical Center et al., Respondents.
    Submitted March 31, 1981;
    decided April 30, 1981

      APPEARANCES OF COUNSEL

      Michael L. Levine for appellant.

      Terrance J. Nolan and S. Andrew Schaffer for respondents.
   OPINION OF THE COURT

Memorandum.

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

At issue on this appeal is not, as appellant contends, the weight of the evidence but whether the determination of the State Division of Human Rights that appellant failed to establish discrimination is supported by substantial evidence. On this record, we cannot say that there was not or that the division’s determination was arbitrary and capricious.

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

Order affirmed, with costs, in a memorandum.


text:
    Lentini Brothers Moving & Storage Co., Inc., Appellant, v New York Property Insurance Underwriting Association, Respondent, et al., Defendants.
    Argued April 1, 1981;
    decided April 30, 1981
    APPEARANCES OF COUNSEL

      Richard Bakalor and Marshall G. Kaplan for appellant.

      Charles T. Rubin and Ira J. Greenhill for respondent.
   OPINION OF THE COURT

Memorandum.

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

Insured’s complaint in its action on a fire insurance policy has been dismissed for failure of the insured to file proof of loss or submit to examination by the insurer. Plaintiff stipulated that demand for both proofs and examination was made and not complied with, but points to the fact that the demand came some 10 months after loss and after it had instituted action on the policy in order, it believed, to protect itself against the 12-month limitation period in the policy.

This is not a case in which the insured’s attempt to comply has fallen short through some “technical and unimportant omissions or defects” but it could be found to have substantially performed its obligation to co-operate (cf. Porter v Traders’ Ins. Co., 164 NY 504, 509). Nor is it a situation in which the insurer, by repudiating liability for the loss, has excused the insured from performance of its obligations (Beckley v Otsego County Farmers Coop. Fire Ins. Co., 3 AD2d 190, app dsmd 2 NY2d 990).

While the insurer may not after repudiating liability create grounds for its refusal to pay by demanding compliance with the examination and proof of loss provisions of the policy (Beckley v Otsego County Farmers Coop. Fire Ins. Co., supra), neither can the insured insulate itself against co-operation by commencing an action before there has in fact been repudiation of liability by the insurer (Do-Re Knit v National Union Fire Ins. Co., 491 F Supp 1334).

The insured’s suggestion that dismissal of the complaint should have been conditional stems from a misinterpretation of the cases upon which it relies. Pogo Holding Corp. v New York Prop. Ins. Underwriting Assn. (73 AD2d 605), for example, is a case in which the insured had partially performed. Without indicating approval of the holding in that case, we note that it is clearly distinguishable from the present case, in which no suggestion of a reason for noncompliance is offered. In view of the insured’s unexcused and willful refusal to comply, there is no reason to deny summary judgment dismissing the complaint unconditionally (Do-Re Knit v National Union Fire Ins. Co., supra; cf. Happy Hank Auction Co. v American Eagle Fire Ins. Co., 1 NY2d 534; Hallas v North Riv. Ins. Co., 279 App Div 15, affd 304 NY 671; and see Ann., 49 ALR2d 161; 2 NY PJI1068).

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

Order affirmed, with costs, in a memorandum.

       In fact the standard policy was amended prior to issuance of the policy to increase the period to two years (Insurance Law, § 168, subd 5, line 161), and that amendment governed plaintiff’s policy even though not referred to in it (Hicks v British Amer. Assur. Co., 162 NY 284).


text:
    Commercial Trading Company, Inc., Respondent, v Jacob Freidus et al., Appellants.
    Decided April 30, 1981
   Appeals of Ella Freidus and Jacob Freidus 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.

Judge Meyer taking no part.


text:
    Mary L. Derleth, as Administratrix of the Estate of John D. Derleth, Deceased, Appellant, v Michael J. Naughton, Jr., et al., Respondents.
    Submitted April 20, 1981;
    decided April 30, 1981
   Motions to dismiss the appeal granted and the appeal dismissed, with one bill of 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]; see Williams v City of Buffalo, 49 NY2d 799).


text:
    In the Matter of New York Telephone Company, Respondent, v Public Service Commission of the State of New York, Appellant. New York State Consumer Protection Board, Proposed Intervenor-Appellant.
    Submitted March 23, 1981;
    decided April 30, 1981
   Motion by New York State Consumer Protection Board for leave to intervene, etc.,, denied. On the court’s own motion, appeal taken as of right by the proposed intervenor dismissed, without costs, upon the ground that it does not lie.


text:
    In the Matter of Nathaniel Welkes, on Behalf of Leonel C. Faustino, Respondent, v William C. Brennan et al., Appellants.
    Submitted April 13, 1981;
    decided April 30, 1981
   Motion to dismiss appeal granted and the appeal dismissed for mootness, without costs.


text:
    Gary Lichtman et al., Appellants, v Beverly Nadler, Respondent.
    Submitted April 20, 1981;
    decided April 30, 1981
   Motion to vacate the Court of Appeals’ order of dismissal dated March 30,1981 denied. [See 53 NY2d 704.]