text:
    Debra Juracka, Individually and as Administratrix of the Estate of Tammy L. Bliss, Deceased, Appellant, v Anthony T. Ferrara et al., Respondents.
    Submitted January 30, 1989;
    decided May 9, 1989
   Motion to renew motion for leave to appeal denied. [See, 72 NY2d 840.]


source: Caselaw Access Project

license: Public Domain

text:
    Jeanne Maloney, Appellant, v Shoparama Investment Associates, Ltd., et al., Respondents.
    Submitted February 6, 1989;
    decided May 9, 1989
   Motion for leave to appeal dismissed upon the ground that movant has failed to comply with section 500.11 (d) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d]).


text:
    In the Matter of Robert J. Rubinstein, as Executor of Judith Kaye, Deceased, Appellant, v 160 West End Owners Corp. et al., Respondents.
    Submitted April 10, 1989;
    decided May 9, 1989
   Motion for leave to appeal granted. Motion for a stay denied.


text:
    Frances Samper et al., Appellants, v University of Rochester et al., Respondents.
    Decided May 9, 1989
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, as to defendants University of Rochester, Strong Memorial Hospital and Dr. Ronald A. Gabel, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution, and, as to the remaining defendants, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Appellant, v Lawrence P. Dean, Respondent.
    Decided May 11, 1989

      APPEARANCES OF COUNSEL

      John T. Ward, District Attorney (J. Richard Goodell of counsel), for appellant.

      Wilson C. Price, III, for respondent.
   OPINION OF THE COURT

Memorandum.

The amended order of County Court should be modified by reinstating the speeding conviction and, as so modified, affirmed; and the case should be remitted to the County Court for consideration of the facts as to that conviction (CPL 470.25 [2] [d]; 470.40 [2] [b]).

We agree with defendant, for the reasons stated in People v Campbell (73 NY2d 481 [decided herewith]), that County Court properly reversed defendant’s conviction for violating Vehicle and Traffic Law § 1192 (3).

The order appealed from also dismissed a speeding conviction because the supporting deposition was insufficient in failing to specify the speed limit that defendant allegedly violated. CPL 255.20 (1) provides that "all pre-trial motions shall be served or filed within forty-five days after arraignment * * * or within such additional time as the court may fix upon application of the defendant”. Defendant’s motion to dismiss was made over three months after his arraignment and he did not request an extension of time. Hence, the Town Court properly denied defendant’s motion as untimely (see, People v Key, 45 NY2d 111, 116).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified by reinstating the speeding conviction and, as so modified, affirmed; and case remitted to Chautauqua County Court for consideration of the facts as to that conviction in a memorandum.


text:
    Barclay Arms, Inc., Appellant, v Barclay Arms Associates et al., Respondents.
    Decided May 11, 1989

      APPEARANCES OF COUNSEL

      Robert G. Benisch and David E. Wolff for appellant.

      Michael M. Meadvin for respondents.
   OPINION OF THE COURT

Memorandum.

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

In October 1980, plaintiff entered into an agreement with defendants to transfer an interest in certain apartment buildings to defendants. The agreement provided, inter alia, for sharing 25% of the profits upon conversion of the buildings to cooperative ownership. Defendants converted the apartments to condominium ownership and refused to pay plaintiff any part of the net profits. Plaintiff commenced this action seeking reformation of the agreement and an accounting, alleging mutual mistake of the parties and mistake of the plaintiff and fraud of the defendants. Plaintiff claimed entitlement to 25% of the net profits derived from the conversion of the apartments to tenant-ownership, regardless the form of ownership —whether cooperative or condominium.

Special Term determined to treat defendants’ CPLR 3211 (a) (7) motion to dismiss the complaint as a motion for summary judgment pursuant to CPLR 3212 (b); granted the motion to the extent of dismissing the allegations of mistake of the plaintiff and fraud of the defendants; granted partial summary judgment severing and dismissing those allegations and denied the motion insofar as the complaint alleged mutual mistake of the parties. The Appellate Division affirmed, concluding that regardless of the propriety of Supreme Court’s converting the CPLR 3211 motion to one for summary judgment pursuant to CPLR 3212, dismissal of the complaint was proper because, in any event, the complaint failed to state a claim for fraud as a matter of law.

Although Supreme Court’s purported conversion of defendants’ CPLR 3211 motion was not done in accordance with the notice requirement of CPLR 3211 (c) or this court’s recent holding in Mihlovan v Grozavu (72 NY2d 506), the Appellate Division properly determined that plaintiff’s complaint failed as a matter of law to state a cause of action for unilateral mistake and fraud.

A bare claim of unilateral mistake by plaintiff, unsupported by legally sufficient allegations of fraud on the part of defendants, does not state a cause of action for reformation (see, Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 218-219; Nash v Kornblum, 12 NY2d 42, 46, see also, Amend v Hurley, 293 NY 587, 595 [the right to reformation must be demonstrated by clear, positive and convincing evidence]). Here, plaintiff merely alleged that defendant committed fraud in concealing knowledge of a “loophole” in the contract — that its reference to cooperative conversion did not include condominium conversion. The complaint did not allege the essential elements of a fraud claim, misrepresentation of a material fact, falsity, scienter and deception (see, Channel Master Corp. v Aluminium. Ltd. Sales, 4 NY2d 403, 406-407) and thus failed to satisfy the specificity and particularity requirements of CPLR 3013 and 3016 (b). Moreover, even taking into account plaintiffs additional submissions (see, Arrington v New York Times Co., 55 NY2d 433, 442), there is no contention that defendants were aware of and concealed the existence of the "loophole” at the time of the negotiation and execution of the agreement, nor was there any claim that plaintiff was fraudulently induced to enter into the agreement by reason of any such concealment. Plaintiffs remaining contentions are without merit.

Accordingly, the complaint was legally insufficient to state a cause of action for reformation based on unilateral mistake and fraud and was properly dismissed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum. Certified question not answered as unnecessary.


text:
    Alliance of American Insurers et al., Appellants, v Roderick Chu, as Commissioner of Taxation and Finance of the State of New York, et al., Respondents. (And Two Other Actions.)
    Decided May 11, 1989
   Appeals transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department, upon the ground that direct appeals do not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Thomas D. Callan, Respondent, v State of New York, Appellant.
    Submitted March 27, 1989;
    decided May 11, 1989
   Motion for renewal of motion to amend remittitur granted and, upon renewal, motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended to read as follows: Order reversed, without costs, and the claim dismissed for the reasons stated in the dissenting memorandum at the Appellate Division (134 AD2d 882, 883-884). [See, 73 NY2d 731.]


text:
    Clayton International, Inc., Plaintiff, v Charles Offset Co., Inc., et al., Defendants. Hesselbacher Papier-Import Und Export GmbH & Co., KG Third-Party Plaintiff-Appellant, v Brangs & Heinrich GmbH et al., Third-Party Defendants-Respondents, et al., Third-Party Defendant.
    Submitted February 27, 1989;
    decided May 11, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed that part of Supreme Court’s May 3, 1988 order as denied reargument, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Oelbermann Associates Limited Partnership, Appellant, v Abbe Borov et al., Respondents.
    Decided May 11, 1989
   On the court’s own motion, appeal transferred, without costs, to the Appellate Term, First Department, upon the ground that the direct appeal does not lie (NY Const, art VI, §3 [b] [2]; §5 [b]; CPLR 5601 [b] [2]). Motions for leave to intervene in the appeal dismissed as academic.


text:
    In the Matter of Jeremy P. Angel Guardian Home, Appellant; Linda P., Respondent.
    Submitted May 1, 1989;
    decided May 11, 1989
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2). Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Appellant, v William H. Hall, Respondent.
    Decided May 11, 1989
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the County Court’s determination of reversal was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]; People v Dercole, 52 NY2d 956, 957; People v Johnson, 47 NY2d 124, 126-127).


text:
    The People of the State of New York, Appellant, v Darryl J. Nordland, Respondent.
    Decided May 11, 1989
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the County Court’s determination of reversal was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]; People v Dercole, 52 NY2d 956, 957; People v Johnson, 47 NY2d 124, 126-127).


text:
    Medical Malpractice Insurance Association, Respondent, v Mario M. Cuomo, as Governor of the State of New York, et al., Appellants.
    Argued March 29, 1989;
    decided May 2, 1989

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Kathie Ann Whipple, O. Peter Sherwood and Richard G. Liskov of counsel), for appellants.

      T. Richard Kennedy, Larry P. Schiffer, Michael A. Knoerzer, Paul D. Getzels and Richard J. Cairns for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the preliminary injunction vacated, defendants’ motion for summary judgment granted, and sections 11 and 40 of chapter 266 of the Laws of 1986 declared constitutional. The certified question should be answered in the negative.

We have recently determined that the Legislature may require the Medical Malpractice Insurance Association (MMIA) to operate at a loss on a temporary or even continual basis in order to promote affordable medical malpractice coverage (Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins., 72 NY2d 753, 766). In so holding, we rejected the argument that section 40 of the Medical Malpractice Reform Act of 1986 (Reform Act) is confiscatory as to MMIA because it authorizes the Superintendent of Insurance to consider future surcharges on insurance premiums in fixing present insurance rates and thus contemplates that MMIA may be required to operate at a deficit. Likewise here, there is no constitutional infirmity in section 11 of the Reform Act insofar as it directs MMIA to refund stabilization reserve fund charges collected on excess policies issued during the 1985-1986 policy year. As a creature of statute, MMIA had no vested property interest in those charges and it was within the Legislature’s prerogative to direct a refund in an effort to reduce over-all health care costs (see, Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins., 72 NY2d, at 766, supra). Nor can MMIA state any cognizable claim for the impairment of contract rights since the stabilization reserve fund charge on excess insurance policies was imposed by statute and not as the result of any bargaining between MMIA and its insureds.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Arthur Barber, Appellant.
    Argued March 28, 1989;
    decided May 9, 1989

      APPEARANCES OF COUNSEL

      Lynn W. L. Fahey, Philip L. Weinstein and Andrea Hirsch for appellant.

      Robert T. Johnson, District Attorney (Susan L. Valle, Stacey K. Edelbaum and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant had no right to file a supplemental pro se brief in the Appellate Division and under the circumstances presented we find no abuse of discretion by the court in denying him permission to do so (see, People v White, 73 NY2d 468 [decided herewith]). We have considered defendant’s remaining points and find they are either lacking merit, unpreserved or not grounds for reversal.

Titone, J.

(dissenting). I agree with my colleagues that a represented defendant has no absolute right, constitutional or otherwise, to file a pro se supplemental brief on appeal. Accordingly, although I find the Appellate Division’s refusal to accept defendant’s pro se supplemental brief puzzling, I would not vote to reverse the court’s order affirming the conviction on that ground. However, in the final analysis, I cannot concur in the majority’s decision to affirm without even commenting upon the significant evidentiary argument defendant has made.

It is defendant’s contention that he was unfairly prevented from developing his defense at trial because of an outmoded rule of evidence that restricts the manner in which the accused’s good character may be proven. The majority’s opaque statement that "defendant’s remaining points * * * are either lacking merit, unpreserved or not grounds for reversal” (majority mem, at 654) furnishes no clue as to whether it has rejected the substance of this argument or has instead found some other impediment to reversal, such as a perceived preservation problem or a determination that the court’s rulings, although erroneous, were harmless. Thus, the majority has left the important evidentiary question presented by this appeal without definitive resolution. I am unable to agree with this disposition, however, since, in my view, defendant’s claim is preserved, meritorious and, in fact, compels reversal. For that reason, I dissent.

In this case involving an attempted murder charge, defendant contends that he should be afforded a new trial because of the trial court’s errors in restricting his character witnesses’ testimony to reputation evidence and in repeatedly precluding their testimony as to their own opinions of his character. While the existing precedent in this State may not support defendant’s position, the weight of Federal and sister State authority, as well as simple common sense, does.

Under traditional evidentiary principles in New York, a defendant may attempt to establish his good character only by showing his general reputation in the community. The opinions of those who know him personally and have firsthand knowledge of his character are inadmissible (People v Bouton, 50 NY2d 130; see, Richardson, Evidence § 151 [Prince 10th ed]). The rule is derived from People v Van Gaasbeck (189 NY 408), which was decided in 1907 and at a time when most American jurisdictions that had considered the question held that " 'character means the estimate in which the individual is held by the community and not the private opinion entertained of him by the witnesses who may be called to testify in reference to such fact’ ” (id., at 416, quoting Jackson v State, 78 Ala 471). The court adopted what was then the majority view because of "overwhelming considerations of practical convenience,” namely the difficulty of ascertaining the truth of the specific occurrences underlying the witness’s opinion and a concern that the admission of character evidence beyond reputation would lead to a proliferation of collateral factual disputes, thereby impeding the conduct of trial (People v Van Gaasbeck, supra, at 417-418).

Whether it was the product of the pragmatic concerns of the time or, as one noted treatise argues (7 Wigmore, Evidence §§ 1981-1982, 1986 [Chadbourn rev ed]), the result of a cumulative misreading of prior precedent, the Van Gaasbeck restriction on proof of character has since been criticized as "archaic” and "paradoxical” (Michelson v United States, 335 US 469, 486) and has been modified or rejected in a majority of jurisdictions, either by statute or judicial decision permitting opinion testimony as an alternative to reputation evidence (see, State v Blake, 157 Conn 99, 249 A2d 232; Richmond v City of Norwich, 96 Conn 582, 115 A 11, 16; Freeman v State, 486 P2d 967, 974-975 [Alaska]; State v Dickerson, 77 Ohio St 34, 82 NE 969; State v Richards, 126 Iowa 497, 102 NW 439, 441; Alaska Rules Evid, rule 405 [a]; Ariz Rules Evid, rule 405 [a]; Ark Rules Evid, rule 405 [a]; Cal Evid Code § 1102; Colo Rules Evid, rule 405 [a]; Haw Rules Evid, rule 405 [a]; Idaho Rules Evid, rule 405 [a]; Iowa Rules Evid, rule 405 [a]; Kan Stat Annot §§ 60-446, 60-447; Md Code, Cts & Jud Proc § 9-115; Minn Rules Evid, rule 405 [a]; Mont Rules Evid, rule 405 [a]; Neb Rev Stat § 27-405; Nev Rev Stat § 48.045; NJ Rules Evid, rule 47; New Mex SCRA, rule 11-405; NC Rules Evid, rule 405; ND Rules Evid, rule 405; Ohio Rules Evid, rule 405 [A]; Okla Stat Annot, tit 12, § 2405 [a]; Ore Evid Code, ch 40.350, rule 608; RI Rules Evid, rule 405 [a]; SD Code Laws § 19-12-6, rule 405 [a]; Tex Rules Crim Evid, rule 405 [a]; Utah Rules Evid, rule 405 [a]; Vt Rules Evid, rule 405; W Va Rules Evid, rule 405 [a]; Wis Stat Annot § 904.05; Wyo Rules Evid, rule 405 [a]; but see, Del Rules Evid, rule 405; Fla Stat Annot § 90.405; Me Rules Evid, rule 405; Mich Rules Evid, rule 405; Wash Rules Evid, rule 405). Both the Model Code of Evidence (rule 306 [2] [a]) and the Uniform Rules of Evidence (rule 405, 13A ULA [Master ed]) provide for the acceptance of personal opinion as character evidence. Further, the Federal Rules of Evidence now provide that "[i]n all cases in which evidence of character * * * is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion” (rule 405 [a]).

The Van Gaasbeck rule has fallen into disfavor because it, quite simply, does not promote the truth-seeking process. The rule is objectionable because it requires rejection of the more reliable form of proof, i.e., the opinions of those in a position to know the accused’s character, while exposing the trier of fact to unverifiable hearsay of unknown origin. Further, it places the jury in the difficult position of having to evaluate the validity of so nebulous a concept as the opinion held of the defendant by the "general community,” while the personal opinions of the testifying witnesses, which may readily be examined for credibility, bias and reliability through traditional forms of cross-examination, must be ignored. As Wig-more notes: "The Anglo-American rules of evidence have occasionally taken some curious twistings in the course of their development; but they have never done anything so curious in the way of shutting out evidential light as when they decided to exclude the person who knows as much as humanly can be known about the character of another, and have still admitted the secondhand, irresponsible product of multiplied guesses and gossip which we term 'reputation’.” (7 Wigmore, op. cit., at 244; accord, Jones, Evidence § 4:45, at 474; Morgan, Basic Problems of State and Federal Evidence, at 311 [Weinstein 5th ed].) For these reasons, it has been said that "the rules * * * pertaining to the method of proving character [in New York] most urgently require reform” (Fisch, New York Evidence § 185, at 110 [2d ed] [emphasis in original]).

When viewed against this impressive array of authority favoring change, the reasons for retaining the Van Gaasbeck rule seem insubstantial. The "practical” concerns that were expressed in Van Gaasbeck, i.e., the difficulty of ascertaining the facts underlying the witness’s opinion and the danger of proliferating collateral factual issues, can be resolved by careful tailoring of the rules governing character evidence. The Federal Rules, for example, provide that only the witness’s opinion may be elicited on direct examination; questioning about specific acts or the facts which form the basis for the witness’s opinion is permitted only if the prosecution wishes to explore the matter further on cross-examination (Fed Rules Evid, rule 405 [a]; accord, Cal Evid Code § 1102). This limitation effectively eliminates any prejudice or unfair surprise to the prosecution that might flow from a defense witness’s direct testimony about specific facts pertaining to the defendant’s character (see, Fed Rules Evid, rule 405, Advisory Comm Note). Similarly, because discussion of specific facts is permitted only on cross-examination, "[t]he danger of collateral issues [is] no greater than that inherent in reputation evidence” (Cal Evid Code § 1102, Law Rev Commn Comment).

In the absence of any persuasive — or even colorable — justification for retaining the much-criticized Van Gaasbeck rule, I would hold, as defendant argues, that it is no longer tenable in New York. This position, in turn, leads me to the further conclusion that, contrary to the majority’s statement that "defendant’s remaining points * * * are either lacking merit, unpreserved or riot grounds for reversal” (majority mem at, 654), there must be a reversal and retrial here.

First, although the People half-heartedly argue otherwise, the question of the correctness of the trial court’s evidentiary rulings clearly presents a "question of law” within the meaning of CPL 470.05 (2). At the outset, the court instructed defendant, who proceeded pro se at trial, that his character witnesses would be confined to testifying about his reputation and could not state what they knew of his character from personal knowledge. Further, defendant’s efforts to elicit character opinion evidence from his witnesses were repeatedly frustrated by the court, which directed the witnesses to speak only of defendant’s "reputation,” directed that their other testimony be stricken and even excluded a witness after determining that, despite her personal knowledge of defendant, she was not qualified to speak on his reputation in the general community. Defendant repeatedly protested the court’s rulings, and there is no claim that he subsequently acquiesced. Thus, the question defendant now asks this court to consider, whether the presentation of his character defense was properly restricted to reputation evidence, was sufficiently brought to the trial court’s attention and was, in fact, "expressly decided” by that court, raising a "question of law” under CPL 470.05 (2).

Second, in light of the evidence as a whole, the court’s rulings with respect to the presentation of defendant’s character defense, which I deem unduly restrictive, cannot be considered harmless. While the evidence against defendant, consisting of the testimony of the victim and her young son, was strong, it was far from ironclad. Indeed, the son’s testimony, which was highly important in establishing defendant’s willing participation as an accomplice to his companion’s acts in firing at the victim, was internally inconsistent and contradicted the main prosecution witness’s testimony in several material respects. Further, although the prosecution offered two possible, alternative motives for the shooting — revenge for the victim’s decision to become a police informant and robbery —neither was established by convincing proof. Thus, while there was certainly enough evidence for the jury to infer defendant’s guilt, it cannot be said that the evidence was so overwhelming as to render harmless the court’s repeated rulings on defendant’s character evidence, which kept important and relevant facts from the jury and drastically impaired the presentation of the defense (see, People v Crimmins, 36 NY2d 230; cf., People v Aharonowicz, 71 NY2d 678 [character evidence may suffice to raise a reasonable doubt when considered with the other evidence presented in the case]).

In sum, inasmuch as the existing New York rules governing presentation of a character defense lack persuasive rationale and, in fact, impede, rather than advance, the truth-finding process, I conclude that those rules are no longer viable and ought to be overruled. Moreover, since application of those rules at defendant’s trial seriously impaired his ability to present his case, a reversal of his conviction, with a direction for a new trial, is required. Accordingly, because the majority has found no basis to disturb the affirmed judgment appealed from, I respectfully dissent.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone dissents and votes to reverse in an opinion.

Order affirmed in a memorandum.

      . Indeed, even on this appeal, in which the question of the rule’s continuing vitality has been extensively briefed by defendant’s appellate counsel, the People have not identified, or even seriously attempted to identify, a viable ground for retaining the rule. Instead, they have simply argued that the trial court’s rulings here were consistent with Van Gaasbeck and that, alternatively, the error in the court’s rulings, if any, was harmless.

      . In this connection, it is worth noting that, as demonstrated by the defense witnesses’ answers on voir dire and by the defense testimony that was stricken, there was considerable evidence, in addition to that which the jury was permitted to hear, to support defendant’s character defense. Defendant, who had been a reverend in his community for several years, had apparently impressed a number of people in that community as having an honest and peaceful character. The court’s rulings, which prevented him from placing much of these individuals’ testimony before the jury, were particularly unfair, in light of the emphasis the prosecution placed on the religious commitment of the victim, who characterized herself as a "born again” Christian.


text:
    The People of the State of New York, Appellant, v Alphonzo Snow, Respondent.
    Argued April 26, 1989;
    decided June 1, 1989

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Alan Cruikshank of counsel), for appellant.

      Donald M. Thompson for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by Justice Samuel Green at the Appellate Division (138 AD2d 217).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Thomas Scott, Respondent, v Michael Uljanov et al., Appellants.
    Argued April 25, 1989;
    decided June 1, 1989

      APPEARANCES OF COUNSEL

      John J. Pollock for appellants.

      Edward T. Waples for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the fourth cause of action dismissed. The certified question is answered in the affirmative.

During the evening of December 14, 1983, plaintiff, then 46 years old, presented himself at the Binghamton General Hospital emergency room with a .29 blood alcohol level, allegedly having consumed substantial quantities of vodka and Valium. Plaintiff was placed in a hospital bed with the side rails up; his mother was seated alongside his bed. Some 30 minutes later, plaintiff climbed out of the end of the bed, fell and cut his head. After the cut was treated, he was sent to the hospital’s psychiatric ward under the care of defendant Dr. Michael Uljanov, who determined that plaintiff presented a substantial risk of harm to himself and others and admitted him; on December 27,1983 plaintiff was discharged.

In December 1986, plaintiff commenced a lawsuit against the owner of the hospital (UHS) and Dr. Uljanov. Three causes of action related to his alleged wrongful detention; all of these were dismissed as time barred and are no longer in issue. A fourth cause of action, against the hospital only, alleged that plaintiff was negligently supervised while in the emergency room bed, resulting in his fall and head injury; this cause of action is the focus of the present appeal. Supreme Court dismissed this cause of action as well, on the ground that it was barred by CPLR 214-a, the 2Vi-year Statute of Limitations distinctly applicable to medical malpractice actions. A divided Appellate Division reversed, the majority concluding that the claim sounds in negligence and is thus subject to the three-year limitations period (CPLR 214). Whether plaintiff’s fourth cause of action sounds in negligence or medical malpractice is the sole issue before us.

In that medical malpractice is simply a form of negligence, no rigid analytical line separates the two, although for policy reasons the Legislature has chosen to affix different Statutes of Limitations to medical negligence (or malpractice) and negligence generally. Conduct may be deemed malpractice, rather than negligence, when it "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician”. (Bleiler v Bodnar, 65 NY2d 65, 72.)

On this record, we agree with the Appellate Division dissenters that, for purposes of determining the applicable Statute of Limitations, defendant hospital’s alleged wrongdoing must be characterized as medical malpractice rather than negligence. Plaintiff’s allegations challenge the hospital’s assessment of the supervisory and treatment needs of its highly intoxicated patient during his initial emergency room care. As such, the conduct at issue constituted an integral part of the process of rendering medical treatment to him.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On appeal by the corporate defendant, order reversed, with costs, the fourth cause of action dismissed and the certified question answered in the affirmative in a memorandum. Appeal by the individual defendant dismissed, without costs, upon the ground that he is not a party aggrieved because the fourth cause of action is alleged only against the corporate defendant (CPLR 5511).


text:
    The People of the State of New York, Respondent, v Larry Williams, Also Known as Benny Robinson, Appellant.
    Argued April 28, 1989;
    decided June 1, 1989

      APPEARANCES OF COUNSEL

      Sara Bennett and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Ellyn Polshek and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The People’s evidence, viewed as a whole, was sufficient for the jury to determine that the value of the car defendant had attempted to steal was at least $1,500. The arresting officer, who interrupted defendant in the act of trying to start the car with tools, testified that the vehicle was in “fair to good” condition. The officer’s testimony also demonstrated that the car was in running condition, as he removed a wire from the engine in order to prevent anyone from driving the car away after he left the scene with defendant. The car had been regularly maintained, and it was in fact returned to service by its owner, New York Telephone, after defendant’s arrest. Five photographs of the interior and exterior of the car were admitted into evidence and available for the jurors to inspect for themselves. Finally, there was testimony that the “blue book” value of a car of that model and year was nearly $1,000 over the statutory $1,500 minimum. This evidence sufficiently established that the market value of the car was more than $1,500 (People v Carter, 19 NY2d 967).

To the extent preserved, there is no merit in defendant’s contention that he was denied a right to file a pro se supplemental brief (see, People v White, 73 NY2d 468).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Darrell Owens, Appellant.
    Argued April 27, 1989;
    decided June 1, 1989
    APPEARANCES OF COUNSEL

      Benjamin E. Rosenberg and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Karen Swiger and Stanley R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The testimony at the Wade hearing (United States v Wade, 388 US 218) indicates that both complainants observed defendant’s face during the course of a gun-point robbery which lasted 2 to 2 Vi minutes. Supreme Court’s finding, undisturbed by the Appellate Division, that the in-court identifications by both complainants were based upon an independent source is supported by the record and thus is beyond our review (People v Whitaker, 64 NY2d 347, 351, cert denied sub nom. Whitaker v New York, 474 US 830; People v McPherson, 56 NY2d 696, 697).

For reasons not relevant to this appeal, only one of the complaining witnesses was permitted to testify to a pretrial corporeal lineup identification. Supreme Court concluded that the lineup procedure was "permissible”. Although this finding was not disturbed by the Appellate Division, it is not supported by the record. Defendant was conspicuously displayed in that lineup. He was the only person wearing the distinctive clothing — a tan vest and a blue snorkel jacket — which fit the description of the clothing allegedly worn by the perpetrator of the crime. In these circumstances, the lineup was unduly suggestive and the witness’ pretrial lineup identification should not have been admitted (People v Adams, 53 NY2d 241, 248; see also, People v Sapp, 98 AD2d 784; People v Johnson, 79 AD2d 617; cf., People v Lloyd, 108 AD2d 873). Notwithstanding the suggestiveness of the lineup, however, the error in receiving the tainted lineup identification must be deemed harmless beyond a reasonable doubt when considered in light of the overwhelming evidence of defendant’s guilt, which included the properly admitted in-court identifications by the two eyewitnesses (People v Crimmins, 36 NY2d 230, 237).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


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    Gramercy Boys’ Club Association, Inc., Respondent, v City of New York et al., Appellants.
    Argued April 26, 1989;
    decided June 1, 1989

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Fred Kolikoff and Larry A. Sonnenshein of counsel), for appellants.

      Joseph N. Giamboi and S. Paul Squitieri for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

The only legal question presented is whether the property taken — a four-story building with an auditorium equipped for staged productions, a gymnasium, locker and shower rooms and other facilities appropriate to its use as a boys’ club — was a specialty and, therefore, properly valued by the replacement cost less depreciation method. We agree with the majority at the Appellate Division that it was a specialty (see, Matter of County of Suffolk [Van Bourgondien Nurseries], 47 NY2d 507, 511-512; Matter of Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d 236, 240; Matter of County of Nassau [Colony Beach Club] 43 AD2d 45, affd 39 NY2d 958). Thus, we reject the city’s argument that, because no proof of market value was adduced, the building should be held to have no value at all. Contentions concerning the amount of the award involve factual determinations beyond our review.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum. Certified question not answered as unnecessary.


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    The People of the State of New York, Appellant, v Vincenzo Zurzolo, Respondent.
    Argued April 28, 1989;
    decided June 1, 1989

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Victor Barall and Barbara D. Underwood of counsel), for appellant.

      Barry Kamins for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court set aside the jury verdict and the Appellate Division affirmed after considering both the weight and legal sufficiency of the evidence. Inasmuch as our review is limited to questions of law (CPL 470.35), we cannot disturb the Appellate Division’s determination.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


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    Yonkers Contracting Company, Respondent, v State of New York, Appellant.
    (Claim No. 75625.)
    Argued April 26, 1989;
    decided June 1, 1989

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Richard J. Dorsey, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      Peter L. Agovino and Cornelia Mogor for respondent.
   OPINION OF THE COURT

Order reversed, with costs, claimant’s motion to file a late notice of claim denied, and the certified question answered in the negative for the reasons stated in the dissenting memorandum of the late Justice Leonard H. Sandler at the Appellate Division (142 AD2d 518, 520-525).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


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    In the Matter of Tze Chun Liao, Doing Business as Money Express Check Cashing Service, Appellant, v New York State Banking Department, Respondent.
    Submitted February 27, 1989;
    decided June 1, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the denial of petitioner’s motion for reargument and renewal, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution and is not the type of order that comes within the meaning of CPLR 5602 (a) (2); motion for leave to appeal otherwise granted.


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    Rodney Nelson, as Executor of Frances Nelson, Deceased, Appellant, v Downstate Medical Center, State University Hospital, Defendant, and Randall Griepp, Respondent.
    Submitted March 6, 1989;
    decided June 1, 1989
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which affirmed the orders denying motions to renew and reargue, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


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    Clement J. Pacyna, Appellant, v Lee G. Greenley et al., Respondents.
    Submitted January 23, 1989;
    decided June 1, 1989
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


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    In the Matter of William T. Martin.
    Decided June 2, 1989
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable William T. Martin is suspended, with pay, effective immediately, from his office of Justice of the Supreme Court of the State of New York, Twelfth Judicial District, pursuant to NY Constitution, article VI, § 22 (f), (g) and Judiciary Law § 44 (8) (b), (c).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


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    Breed, Abbott & Morgan, Respondent, v R. Lee Hulko, Appellant.
    Argued April 27, 1989;
    decided June 6, 1989

      APPEARANCES OF COUNSEL

      William J. Thomashower for appellant.

      Eric M. Nelson and William M. Sunkel for respondent.
   OPINION OF THE COURT

Memorandum.

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

The narrow question before us is whether, under the circumstances presented, defendant agreed to indemnify plaintiff for its legal expenses incurred resisting defendant’s claims (see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5). We conclude that defendant did so agree, for the reason stated in the opinion of the late Justice Leonard H. Sandler that if this agreement did not include plaintiff law firm’s "legal expenses incurred in defending against an action by one of the parties alleging misconduct by the escrowee which resulted in a determination in favor of the escrowee, it is difficult, if not impossible, to ascertain for what it was that the parties had agreed to indemnify the escrowee.” (139 AD2d 71, 73.)

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

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


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    In the Matter of Gary Mosher, Respondent, v New York State Racing and Wagering Board, Appellant.
    Argued May 4, 1989;
    decided June 6, 1989
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Abigail I. Petersen and O. Peter Sherwood of counsel), for appellant.

      Richard Schaeffer and Peter J. Venaglia for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, respondent’s determination reinstated and the petition dismissed.

Petitioner was the trainer of Ryan’s Choice, a standardbred horse that competed in the third race at Monticello Raceway on the evening of December 22, 1984. A postrace urinalysis performed upon the horse revealed the presence of the drug prednisolone, the administration of which is prohibited within 48 hours of race time (see, 9 NYCRR 4120.2 [c]). As a result of such finding, respondent New York State Racing & Wagering Board notified petitioner that his license to participate in racing was suspended for 60 days. The notice of suspension invoked rule 4120.2 and former rule 4120.4 (recodified as 9 NYCRR 4034.4), also known as the "trainer’s responsibility rule” which makes the trainer of a race horse liable for the impermissible presence of a restricted substance in a horse’s system unless the trainer can show by substantial evidence that he was not responsible.

A hearing upon the charges was held on December 9, 1985. The parties stipulated to the fact that petitioner was the trainer of Ryan’s Choice and to the urinalysis procedure followed in this case. Thus, the sole remaining issue was how long before the race the prohibited drug had been administered to the horse. The Board’s expert witness, Dr. George Maylin, testified that in his opinion the drug had been administered within 48 hours of post time. Although Dr. Maylin acknowledged, upon cross-examination, that it was "possible” (though "not likely”) that the prednisolone could have been injected 55 hours prior to post time, he stood by his opinion that the drug had been administered within 48 hours before the race. Petitioner and two witnesses — the horse’s veterinarian and groom — testified that the last administration of prednisoloné occurred approximately 55 hours before the race.

The Hearing Officer then determined that petitioner had violated the Board’s rules; he accepted Dr. Maylin’s opinion, and found nothing in the record to disprove administration of the prednisolone within the proscribed time. The Board adopted the Hearing Officer’s report and confirmed the original 60-day suspension. Upon commencement of the present article 78 proceeding, Supreme Court transferred the proceeding to the Appellate Division, which granted the petition and annulled respondent’s determination. The Appellate Division concluded that petitioner had presented substantial evidence establishing that the drug detected in the postrace test had been administered more than 48 hours prior to the race. Concluding that the Appellate Division misapplied the trainer responsibility rule, we now reverse.

The rule places strict responsibility on a trainer to ensure that a horse in his or her care and custody does not receive any drug or other restricted substance within specified periods before a race. (Matter of Casse v New York State Racing & Wagering Bd., 70 NY2d 589, 594.) If the horse tests positive, the trainer is presumed responsible and is subject to penalty, including license suspension. The presumption is rebutted only when the trainer comes forward with substantial evidence that neither the trainer nor any employee or agent was responsible for administration of the drug or other restricted substance. Thus, proper application of the rule requires a reviewing court first to determine whether there is substantial evidence of a positive drug test within the proscribed period. Such evidence triggers a presumption of the trainer’s responsibility. The reviewing court then must inquire whether the trainer has rebutted this presumption by substantial evidence.

Here, the State’s witness testified that, in his opinion, the prednisolone had been administered to Ryan’s Choice within 48 hours of the race; that testimony gave rise to a presumption that the trainer was responsible for the violation. Petitioner’s proof that prednisolone was administered to the horse 55 hours prior to the race did not rebut the State’s substantial evidence of drug administration within the critical time period or the presumption of the trainer’s responsibility for that infraction. Petitioner offered no proof that the horse was not in his care, control or custody during the critical period (cf., Wetzel v New York State Racing & Wagering Bd., 109 AD2d 1099). Accordingly, petitioner failed to rebut the presumption that he, as the horse’s trainer, was responsible for the impermissible presence of prednisolone.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Judgment reversed, etc.


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    MGM Court Reporting Service, Inc., Appellant, v Stanley Greenberg et al., Respondents.
    Argued May 4, 1989;
    decided June 6, 1989

      APPEARANCES OF COUNSEL

      James Sawyer for appellant.

      Andrew B. Schultz for respondents.
   OPINION OF THE COURT

Memorandum.

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

In 1984, defendant Stanley Greenberg owned 40% and Michael Yesner owned 60% of the outstanding shares of plaintiff MGM Court Reporting Service, Inc. (MGM), a close corporation engaged in the business of providing stenographic reporting services. In August of that year, contending that Yesner had engaged in a campaign to freeze him out of MGM’s business, Greenberg commenced a proceeding seeking dissolution of the corporation pursuant to Business Corporation Law § 1104-a. In response, Yesner and MGM exercised the option provided in Business Corporation Law § 1118 and elected to purchase Greenberg’s shares at fair value rather than have the corporation dissolved (see, Business Corporation Law § 1118).

The record reveals that the parties and their respective counsel engaged in extensive settlement negotiations which culminated in the execution of a settlement agreement. The agreement provided that the "fair value and purchase price” of Greenberg’s shares was $175,000 and that: "Stanley Green-berg acknowledges that MGM performs services for companies known as JJ Court Reporting Service, Dunbar Court Reporting Service and Suzanne Hand Court Reporting Service and that performance of these services constitutes part of the business of MGM. Greenberg agrees and covenants that he shall in no respect attempt to or perform any services, whether directly or indirectly, whether as an officer, agent, partner, employee for any company, independent contractor or otherwise for the aforementioned JJ Court Reporting Service, Dunbar Court Reporting Service and Suzanne Hand Court Reporting Service, or their successors or assigns for a period of 5 years.” The agreement further provided that it "represented] the parties’ entire agreement” as to the sale.

Greenberg subsequently established his own court reporting business under the name of Precise Court Reporting Service, Inc., a codefendant herein, and allegedly began soliciting some of plaintiffs clients. This action ensued. To the extent relevant here, the complaint seeks damages in its first cause of action based upon Greenberg’s alleged breach of an implied restrictive covenant against impairment of plaintiff’s goodwill by soliciting its clients. Additionally, the fifth cause of action alleges a breach of Greenberg’s fiduciary duty arising from his alleged breach of this implied covenant.

Concluding that a nonsolicitation covenant could not be implied because the sale of Greenberg’s shares resulted from Yesner’s allegedly oppressive actions leading to the dissolution proceeding and therefore was akin to a sale "under compulsion”, the Appellate Division granted defendant’s motion for summary judgment (143 AD2d 404, 405-406; see, Von Bremen v MacMonnies, 200 NY 41, 50-51). Although we affirm the order of the Appellate Division, we do so for reasons different from those relied on by that court and do not reach the issue of whether a sale of corporate shares pursuant to Business Corporation Law §§ 1104-a and 1118 constitutes a sale "under compulsion”.

The uncontradicted facts appearing in the record demonstrate that notwithstanding Yesner’s attempts to secure a general prohibition against Greenberg’s solicitation of MGM customers, the parties expressly limited the nonsolicitation restriction imposed upon Greenberg to three specific customers. The parties having thus negotiated and expressly defined the reach of the limitation on solicitation, a more general limitation may not be implied. Significantly, there is no claim that the agreed restriction is anything other than what it appears to be — a specific nonsolicitation covenant limited to three customers (cf., Mohawk Maintenance Co. v Kessler, 52 NY2d 276).

Accordingly, plaintiff’s first and fifth causes of action were properly dismissed. Having considered plaintiff’s remaining contentions, we further conclude that the second, third and fourth causes of action were also properly dismissed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


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    John J. Lima et al., Appellants, v State of New York, Respondent.
    (Claim No. 69405.)
    Argued May 3, 1989;
    decided June 6, 1989
    APPEARANCES OF COUNSEL

      William R. Sichol, Jr., for appellants.

      Robert Abrams, Attorney-General (Vernon Stuart, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.

      Edward M. Cooke for Firemen’s Association of the State of New York, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Claimant, a volunteer member of the Village of Haverstraw Fire Department, was injured when he fell while performing an exercise as a participant in a fire training program sponsored by the New York State Department of State and supervised by a certified instructor retained by the State. Claimant received compensation benefits for his injuries pursuant to Volunteer Firefighters’ Benefit Law §§ 30 and 5 (1) (d), under a plan paid for by the village. He and his wife then commenced this independent action against the State on a theory of respondeat superior, claiming the State’s agent had negligently supervised the training program by allowing the exercise to be conducted without a safety net.

The only issue now presented is whether Volunteer Firefighters’ Benefit Law § 19 also prohibits this action against the State. It reads in part: "§ 19. Exclusiveness of remedy. The benefits provided by this chapter shall be the exclusive remedy of a volunteer fireman, or his spouse * * * at common law or otherwise, for or on account of an injury to a volunteer fireman in line of duty * * * as against (1) the political subdivision liable for the payment of such benefits, (2) the political subdivision regularly served by the fire company of which the volunteer fireman is a member * * * even though any such political subdivision is not liable for the payment of such benefits in the circumstances, and (3) any person or agency acting under governmental or statutory authority in furtherance of the duties or activities in relation to which such injury resulted”.

The Court of Claims granted the State summary judgment and dismissed the complaint, holding that the statute barred claimant’s suit against the State. The Appellate Division affirmed and we granted leave to appeal.

We affirm the order dismissing the action based on the bar of Volunteer Firefighters’ Benefit Law § 19 (3), which is patterned after the Workers’ Compensation Law and which provides a compensation system for volunteer firefighters based on an employer/employee-type relationship (Maines v Cronomer Val. Fire Dept., 50 NY2d 535, 542; see also, Mem of Joint Legis Comm on Fire Laws, 1956 NY Legis Doc, No. 45, reprinted in McKinney’s Cons Laws of NY, Book 63B, at XXII). We agree with Judge Donaldson that Volunteer Firefighters’ Benefit Law benefits are intended to be the exclusive remedy against the State when it is acting as an employer (Rosenberger v State of New York, 46 Misc 2d 194, 196-197).

In parsing Volunteer Firefighters’ Benefit Law § 19, we discern that the three immunization subdivisions are designed to provide protection from suit to different categories of persons and entities defined by their relationship to the injured volunteer firefighter. The one common thread is an employer/ employee-like relationship. Subdivision (1) of section 19 imposes exclusivity as against a political subdivision liable for benefit payments, thereby protecting it from additional liability for common-law damages, because it is essentially the "employer” of the volunteer firefighter. Subdivision (2) protects from suit a political subdivision regularly served by the firefighter. Correspondingly, to be protected by subdivision (3) from suit, the "person or agency acting under governmental or statutory authority” — in this case the State — must be found to have an employer/employee-like relationship and responsibility for the performance or training of the injured volunteer firefighter. The State qualifies for immunity under this analysis because it was carrying out its statutory duty to "[p]lan, coordinate and provide training” for volunteer firefighters (see, Executive Law art 6-C, § 156 [6]).

Pollini v Fuller Rd. Fire Dept. (66 Misc 2d 523, affd 39 AD2d 554, affd 34 NY2d 744) relied on by claimants-appellants is not to the contrary but rather is consistent with our analysis. In Pollini, the defendant Hicksville Fire Department was held immune from suit brought by a Málveme volunteer firefighter because the injury occurred while the Hicksville Fire Department was participating and acting as an employer in a firefighting training drill (cf., Giuliano v Town of Brunswick, 32 AD2d 705, lv dismissed 25 NY2d 905).

Finally, we note that a contrary construction of Volunteer Firefighters’ Benefit Law § 19 (3) in cases such as this one would render somewhat illusory, in the ultimate and practical effect, the protection shielding the expressly immunized State-employed servant by allowing a derivative suit and recovery nevertheless against the master, thus permitting indirectly that which is directly forbidden by the statute. Such an anomalous result could not have been intended by the Legislature in its enactment of Volunteer Firefighters’ Benefit Law § 19 (3).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Martin Thomas, Appellant.
    Submitted May 15, 1989;
    decided June 6, 1989
   Motion to dismiss the appeal denied.


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    Richard D. Sutfin, Individually and as Father and Natural Guardian of Michael Sutfin, et al., Appellants, v John A. Scheuer et al., Respondents.
    Decided June 8, 1989
    APPEARANCES OF COUNSEL

      John T. Frizzell and Thomas J. Ryan, Jr., for appellants.

      Mitchell M. Stenger for John A. Scheuer, respondent.

      Peter W. Beilewech for Donald Bauer, respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendants, a 14-year-old boy and a 15-year-old boy, were playing hardball catch at a distance of 25 feet on a city street. According to plaintiff, also 15 and an experienced baseball player, he approached defendants, both his friends, during their game, greeted them and conversed with each of them as they continued throwing the ball back and forth. Plaintiff then moved a short distance behind defendant Bauer and began talking with two or three other friends. Thereafter, Bauer threw a ball that eluded defendant Scheuer who retrieved the ball and, from a distance of 75 feet, made an errant throw that struck plaintiff in the mouth and injured him.

By placing himself in the line of an ongoing game of catch between his friends, plaintiff put himself in danger of being struck by a misthrown ball. Thus, the Appellate Division properly held that in the circumstances plaintiff was owed no duty by defendants.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

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


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    In the Matter of Aaron Dashaun D., an Infant. Samuel D., Appellant; Gwendolyn Hammond, as Guardian ad Litem of Aaron Dashaun D., Respondent.
    Submitted March 13, 1989;
    decided June 8, 1989
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from, affirming only the February 18, 1988 order of the Surrogate’s Court, does not finally determine the proceeding within the meaning of the Constitution.


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    Home Insurance Company, Plaintiff, v American Home Products Corporation et al., Defendants.
    Decided June 8, 1989
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa. Taking no part: Judge Kaye.


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    Gary M. Hugelmaier, Appellant, v Town of Sweden et al., Defendants, and County of Monroe, Respondent.
    Submitted March 20, 1989;
    decided June 8, 1989
   Motion for leave, insofar as it seeks to appeal from the Appellate Division order which modified the judgment and dismissed the complaint as against the County of Monroe, denied; motion otherwise dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Arthur Korf, Appellant, v Nathan Cyperstein et al., Respondents.
    Submitted February 6, 1989;
    decided June 8, 1989
   Motion to dismiss appeal granted and appeal dismissed with $400 costs and $100 costs of motion upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


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    Kristian A. Miller, an Infant, by His Guardian ad Litem Susan S. Miller, et al., Respondents, v Andrew F. Miller, Appellant.
    Submitted March 13, 1989;
    decided June 8, 1989
   Motion for leave to appeal dismissed upon the ground that movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


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    Leon Morse, Appellant, v Ted Cadillac, Inc., et al., Respondents.
    Submitted March 27, 1989;
    decided June 8, 1989
   Motions to dismiss the appeal granted without prejudice (see, CPLR 5514 [a]), and appeal dismissed with $400 costs and $100 costs of motion upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


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    Donna M. Newman, as Administratrix of the Estate of Roger R. Jewell, Appellant, v Town of York et al., Defendants, and William C. Larsen, P. E., P. C., et al., Respondents. (And a Third-Party Action.)
    Submitted March 13, 1989;
    decided June 8, 1989
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals.


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    In the Matter of Ogden C. Noel, Deceased. Jean Hyman et al., Respondents; Valerie N. Steele, Appellant.
    Decided June 8, 1989
   Appeal from the Appellate Division order dated February 6, 1989 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.

Appeal from the Surrogate’s Court order dated March 30, 1987 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that a separate appeal does not lie from that order which has been affirmed by the Appellate Division (NY Const, art VI, § 3; CPLR 5601).


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    In the Matter of J. Jerome Olitt, a Suspended Attorney and Counselor-at-Law, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted April 17, 1989;
    decided June 8, 1989
   On the court’s own motion, appeal dismissed, upon the grounds that (1) insofar as it is taken from that portion of the Appellate Division order granting petitioner’s motion to hold respondent in contempt, the order does not finally determine the proceeding within the meaning of the Constitution, and (2) insofar as it is from that portion of the Appellate Division order granting petitioner’s motion to disbar respondent, no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order granting petitioner’s motion to hold respondent in contempt, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


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    Robert Martin Company et al., Respondents, v Town of Greenburgh et al., Defendants, and County of Westchester, Appellant.
    Submitted March 20, 1989;
    decided June 8, 1989
   Motion for leave to appeal dismissed as untimely; the time to move for leave to appeal ran from date of service, with notice of entry, of the original judgment, not the amended judgment as there was no material change in the amended judgment (see, Cohen and Karger, Powers of the New York Court of Appeals § 104, at 436-437).


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    Samuel Schwarz, Appellant, v Norman Tokayer et al., Respondents.
    Submitted March 13, 1989;
    decided June 8, 1989
   Motion for leave to appeal dismissed upon the ground that the order affirmed by the Appellate Division, although termed one dismissing the complaint, accomplished no more than a denial of the motion to vacate the stipulation of discontinuance and, thus, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


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    Theodore H. Sheldon et al., Respondents, v Town of Highlands, Appellant, et al., Respondents.
    Submitted May 15, 1989;
    decided June 8, 1989
   Motion treated as a motion to amend remittitur denied. [See, 73 NY2d 304.]


text:
    Leonard C. Spano, Appellant, v Leslie H. Cohen, Respondent.
    Submitted March 20, 1989;
    decided June 8, 1989
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


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    State of New York et al., Respondents, v Reynard Barone et al., Appellants, et al., Defendants.
    Submitted April 24, 1989;
    decided June 8, 1989
   Motion for leave to appeal granted. Motion to stay the posting with the State of a bond in the sum of $4,500,000 granted.


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    In the Matter of Ronald G. Hertz, Appellant, v Samuel J. Rozzi, as Police Commissioner of Nassau County, et al., Respondents.
    Decided June 13, 1989

      APPEARANCES OF COUNSEL

      Raymond E. Kerno for appellant.

      Edward T. O’Brien, County Attorney (Patricia M. Carroll of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (148 AD2d 535).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


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    The People of the State of New York, Appellant, v Richard Winkler, Respondent.
    Decided June 13, 1989

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney (Diane E. Selker of counsel), for appellant.

      Robert N. Isseks for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the judgment reinstated, and the case remitted to the Appellate Division to remit to County Court for a hearing on defendant’s CPL article 440 motion.

On a prior appeal, we reversed the Appellate Division’s order granting, without benefit of a hearing, defendant’s motion to set aside the verdict on the ground that he had received ineffective assistance of counsel. We concluded that counsel’s representation of defendant pursuant to a contingent fee arrangement did not, without more, constitute per se ineffective assistance of counsel requiring a reversal and a new trial (see, People v Winkler, 71 NY2d 592). We reasoned that, as with other claims of ineffective assistance of counsel, a conviction may be set aside only if a defendant demonstrates that the contingency fee agreement "affected the manner in which his attorney conducted the defense prejudicially to the defendant” (People v Winkler, supra, at 597).

On remand, the Appellate Division, without remitting for a hearing, ordered a new trial holding that defendant was deprived of effective assistance of counsel because the fee arrangement had had a prejudicial impact on counsel’s representation (see, 144 AD2d 404, 405). There is no concession by the People nor is there "unquestionable documentary proof’ conclusively establishing (CPL 440.30 [3] [c]) that trial counsel’s decisions were affected by the contingent fee arrangement. Under these circumstances, the Appellate Division should not have granted defendant’s motion without remitting for a hearing.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, judgment reinstated and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


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    In the Matter of the Claim of Richard Becker, Appellant. Thomas F. Hartnett, as Commissioner of Labor, Respondent.
    Submitted February 27, 1989;
    decided June 13, 1989
   Motion, insofar as it seeks leave to appeal from the January 13, 1989 Appellate Division order which denied reconsideration, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Court & Pearl Associates, Appellant. Buffalo Urban Renewal Agency, Respondent.
    Submitted March 27, 1989;
    decided June 13, 1989
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York, Respondent, v Leonard Dare, Appellant.
    Decided June 13, 1989
   Appeal dismissed, by the Court of Appeals sua sponte, upon the ground that it does not lie from the order of the Appellate Division.


text:
    In the Matter of Steven Gonzalez, Appellant, v Robert Henderson, as Superintendent of Auburn Correctional Facility, Respondent.
    Submitted March 27, 1989;
    decided June 13, 1989
   Motion for leave to appeal from the Appellate Division order affirming the September 20, 1985 judgment denied.


text:
    Mental Hygiene Legal Services on Relation of Angel Cruz, Appellant, v Renate Wack, as Executive Director of Kirby Forensic Psychiatric Center, et al., Respondents.
    Submitted June 5, 1989;
    decided June 13, 1989
   Motion for a stay and calendar preference denied.


text:
    In the Matter of Adolfo Pisani, Appellant, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Submitted March 20, 1989;
    decided June 13, 1989
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Village of Westbury, Respondent, v Department of Transportation of the State of New York et al., Appellants.
    Submitted May 1, 1989;
    decided June 13, 1989
   Motion, insofar as it seeks leave to appeal from the March 8, 1989 order of the Appellate Division denying a motion to vacate the permanent injunction dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2); motion for leave to appeal otherwise granted.


text:
    The People of the State of New York, Appellant, v Gregory Jack, Respondent.
    Decided June 15, 1989

      APPEARANCES OF COUNSEL

      Robert Morgenthau, District Attorney (Karen L. Mallory of counsel), for appellant.

      Robert S. Dean and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that it was error for the trial court to refuse counsel’s request that it instruct ’the jury on alibi. The alibi testimony of defendant and his sister did not have to establish that it would have been impossible for the defendant to have committed the crime and need not have covered the whole time of the transaction in question (see, People v Holt, 67 NY2d 819, 820-821 [quoting People v Barbato, 254 NY 170, 178-179]). Rather, the evidence simply had to raise a reasonable doubt concerning defendant’s presence in the stairwell of the apartment building, as opposed to his sister’s apartment within that building, when the drugs were allegedly sold (see, People v Holt, supra, at 821; People v Barbato, supra, at 178-179; People v Elmore, 277 NY 397, 405-406). Inasmuch as the alibi testimony, when viewed together with all the other evidence, could have created a reasonable doubt, a jury instruction on this defense was warranted and the failure to give it was not harmless error (see, People v Holt, supra, at 821; People v La Chance, 39 NY2d 892; see also, People v Barbato, supra, at 178-179).

Chief Judge Wacther and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

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


text:
    In the Matter of Hull-Hazard, Inc., et al., Respondents, v Lillian Roberts, as Commissioner of Labor, Appellant, and Upstate New York Council of Operating Engineers, Intervenor-Respondent.
    Decided June 15, 1989

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Jane Lauer Barker of counsel), for appellant.

      Verne F. O’Dell for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be modified by reversing so much thereof as annulled respondent’s determination of willfulness and, as so modified, affirmed.

The overtime pay policy of petitioner Hull Corporation (Hull) is identical to that policy previously ruled unlawful by respondent Commissioner of Labor in another administrative proceeding to which Hull was a party (see, Matter of Hull-Hazard, Inc. v Roberts, 72 NY2d 900, affg for the reasons stated below 129 AD2d 348 [Hull-Hazard I]). Thus, Hull cannot claim it was ignorant of the agency’s view regarding the meaning of the overtime pay provision contained in Labor Law § 220 (2). That respondent’s determination in this case was handed down prior to the decision of the Appellate Division in Hull-Hazard I is of no consequence. In adhering to its own contrary interpretation and placing itself in direct conflict with the agency position, Hull willfully violated the overtime pay provision of the Labor Law (see, Matter of Loll [Ross], 57 NY2d 116, 127; Matter of Old Republic Life Ins. Co. v Thacher, 12 NY2d 48, 55).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed.


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    In the Matter of the Application for Payment of Income to Ruth Alpert from the Residuary Trust under the Last Will and Testament of Hyman Alpert, Deceased. Kronish, Lieb, Weiner & Hellman, Respondent. In the Matter of the Application for Payment of Income to Ruth Alpert from the Residuary Trust under the Last Will and Testament of Hyman Alpert, Deceased. Jack L. Alpert et al., Appellants; Ruth Alpert et al., Respondents.
    Submitted April 10, 1989;
    decided June 15, 1989
   Motions, insofar as they seek leave to appeal from so much of the order of the Appellate Division as affirmed the order of the Surrogate’s Court entered November 13, 1987, dismissed upon the ground that that portion of the order of the Appellate Division does not finally determine the proceeding within the meaning of the Constitution; motions otherwise denied.


text:
    Oswald Caton, Respondent, v Winston Lloyd, Appellant.
    Submitted May 8, 1989;
    decided June 15, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the denial of defendant’s motion to vacate the default judgment and extend the time to answer, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal otherwise dismissed upon the ground that no appeal lies from a judgment entered on default (CPLR 5511). Motion for leave to join the Public Administrator dismissed as academic. Motion for a stay dismissed as academic.


text:
    Kenford Company, Inc., Respondent, v County of Erie et al., Appellants.
    Submitted April 3, 1989;
    decided June 15, 1989
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; see, Gilroy v American Broadcasting Co., 46 NY2d 580, 586, n 2).

Concur: Chief Judge Wachtler and Judges Alexander, Titone, Bellacosa and Mollen. Taking no part: Judges Simons, Kaye and Hancock, Jr.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Aida M. Little Flower Childrens Services et al., Respondents; Darlene M., Appellant. James M. et al., Intervenors-Respondents.
    Submitted April 3, 1989;
    decided June 15, 1989
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]; 5514 [c]). Motion for assignment of counsel dismissed as academic.


text:
    Stephen M. Rose, Appellant, v Metro North Commuter Railroad et al., Respondents.
    Submitted May 1, 1989;
    decided June 15, 1989
   Motion for reargument denied. Movant failed to comply with section 500.11 (d) (1) (iv) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iv]) when movant previously sought leave to appeal. [See, 73 NY2d 994.]


text:
    In the Matter of William Timm, Appellant, v New York State Public Service Commission et al., Respondents.
    Decided June 15, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601 [a], [b]).


text:
    The People of the State of New York, Respondent, v Dennis Vilella, Appellant. (George Sassower, Petitioner.)
    Decided June 15, 1989
   Appeal dismissed, by the Court of Appeals sua sponte, upon the ground that no appeal lies from the order entered in this criminal proceeding (CPL 450.90).

Judge Bellacosa taking no part.


text:
    Samuel P. Hoopes et al., Individually and as Trustees of the Trusts Made by Charlotte P. Hyde et al., Respondents, v Richard J. Carota, Individually and as Trustee of the Trusts Made by Charlotte P. Hyde et al., Appellant.
    Argued April 27, 1989;
    decided June 8, 1989

      APPEARANCES OF COUNSEL

      Michael T. Wallender, John T. DeGraff, Jr., and Jean M. Mahserjian for appellant.

      Francis J. Holloway, H. Wayne Judge and Mary Ann D. Allen for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that Supreme Court correctly determined that the attorney-client privilege was not applicable to certain questions asked defendant at his examination before trial. Accordingly, defendant was properly compelled to answer.

The questions regarding whether legal advice was obtained and how such advice was paid for were not protected. The attorney-client privilege extends only to confidential communications made to an attorney for the purpose of obtaining legal advice (see, Matter of Priest v Hennessy, 51 NY2d 62, 69). Whether an attorney was consulted and who paid the legal fees do not ordinarily constitute such confidential communications (see, id.). We are not persuaded that the instant case falls outside the general rule (cf., Banco Frances e Brasilerio S. A. v Doe, 36 NY2d 592, 599; Matter of Kaplan [Blumenfeld], 8 NY2d 214, 218-219).

In addition, the Appellate Division correctly held — given the particular matters in issue about which disclosure was sought —that plaintiffs were entitled to inquire concerning the substance of the legal advice. It appears from the submissions that defendant consulted the attorneys, at least in part, in his capacity as trustee of the trust of which plaintiffs are beneficlaries. Under these circumstances, where a fiduciary relationship is present, some courts have held that the attorney-client privilege does not attach at all (see, United States v Evans, 796 F2d 264, 265-266 [9th Cir]; Washington-Baltimore Newspaper Guild v Washington Star Co., 543 F Supp 906, 909 [DDC]; Riggs Natl. Bank v Zimmer, 355 A2d 709, 713-714 [Del]) while other courts have held that the privilege attaches but that it may be set aside by a showing of good cause (see, Quintel Corp. v Citibank, 567 F Supp 1357, 1360-1362 [SD NY]; see also, Garner v Wolfinbarger, 430 F2d 1093, 1103-1104 [5th Cir]). We agree with the Appellate Division that "good cause” is present here (142 AD2d 906, 910-911). Therefore, the communications are not privileged in any event.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum. Certified question answered in the negative.


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    In the Matter of Waldo’s, Inc., Appellant, v Village of Johnson City, Respondent.
    Argued May 3, 1989;
    decided June 15, 1989

      APPEARANCES OF COUNSEL

      William L. Allen, Jr., and John R. Varney for appellant.

      Gerald J. Blasi for respondent.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Peter G. Crary of counsel), for New York State Department of Transportation and another, amici curiae.

      George A. O’Hanlon, Village Attorney, for Village of Port Chester, amicus curiae.

      Linda S. Kingsley for New York State Conference of Mayors and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

Petitioner brought this proceeding directly in the Appellate Division, pursuant to EDPL article 2, to challenge the taking of a parcel of its real property located along Harry L. Drive in the Village of Johnson City in Broome County. The condemnation was made by respondent in connection with its proposed construction of a four-way intersection for access to and from the Oakdale Mall and property across Harry L. Drive, which is owned by Wegmans Enterprises, Inc.

Petitioner claims that the additional road access provided to Wegmans by the four-way intersection results primarily in a private benefit, thereby undermining respondent’s conclusion that the condemnation of petitioner’s property is for a public use. Additionally, petitioner argues that by making a $1.5 million commitment to the project, Wegmans improperly induced respondent to condemn its property for Wegmans benefit. This inducement supposedly resulted in bias and a tainted condemnation procedure. Because of respondent’s dealings with Wegmans, petitioner argues that an additional due process hearing, and related discovery, are required. Finally, petitioner maintains that respondent’s acceptance of Wegmans’ offer was without express statutory authority, and constitutes an illegal "contracting away” of respondent’s eminent domain power.

EDPL 207 is a summary proceeding in which the scope of review is expressly limited "to whether the proceeding was constitutional or within the agency’s statutory jurisdiction; whether the agency made its determination and findings in accordance with the procedures set forth in article 2; and whether 'a public use, benefit or purpose will be served by the proposed acquisition’ ” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 418; see, Pizzuti v Metropolitan Tr. Auth., 67 NY2d 1039, 1041). If an adequate basis for a determination is shown "and the objector cannot show that the determination was 'without foundation’, the agency’s determination should be confirmed” (Matter of Jackson v New York State Urban Dev. Corp., supra,, at 425, quoting Long Is. R. R. Co. v Long Is. Light. Co., 103 AD2d 156, 168, affd 64 NY2d 1088; see, Matter of Neptune Assocs. v Consolidated Edison Co., 125 AD2d 473, 474; Matter of Town of Coxsackie v Dernier, 105 AD2d 966). In addition, an incidental private benefit will not invalidate an agency’s determination so long as the public purpose is dominant (see, Yonkers Community Dev. Agency v Morris, 37 NY2d 478; Board of Hudson Riv. Regulating Dist. v Fonda Johnstown & Gloversville R. R. Co., 249 NY 445, 452-454; Rodrigues v Town of Beekman, 120 AD2d 724, appeal dismissed 69 NY2d 822; Matter of Terrace W. v City of Plattshurg, 73 AD2d 763; Evans v State of New York, 34 AD2d 1007, affd 28 NY2d 844; Ross v State of New York, 30 AD2d 681, affd 23 NY2d 807; Bunyan v Commissioners of Palisades Interstate Park, 167 App Div 457, 466-467).

Upon this record, there can be no serious question that the proposed condemnation project will serve a public purpose. Three public studies since 1978 have found that increasing traffic congestion in the vicinity of the Oakdale Mall poses a serious problem of growing concern. Each of the studies concluded that the best solution for this problem would be to widen Harry L. Drive and place a single four-way intersection at the current western entrance to the mall. Since the selection of a particular site for the intersection is properly a matter for the condemning authority rather than the court (Matter of Neptune Assocs. v Consolidated Edison Co., supra, at 475; see, Village Auto Body Works v Incorporated Vil. of Westbury, 90 AD2d 502, appeal dismissed 58 NY2d 778), and the taking of petitioner’s property will surely help to relieve the serious traffic problems which currently exist, respondent’s decision is amply supported by the record.

Wegmans’ benefit of increased access to Harry L. Drive is clearly incidental to the public use and community benefit which will be the dominant result of the project (see, Evans v State of New York, supra; Ross v State of New York, supra; Rodrigues v Town of Beekman, supra; cf., Denihan Enters. v O’Dwyer, 302 NY 451). That Wegmans’ motives in making the $1.5 million commitment to the project are not completely altruistic is of no legal consequence. The public good is enhanced by its efforts. Hence, we reject petitioner’s argument that a condemnation proceeding is automatically tainted by the financial involvement of a private party. In addition, we note that two of the traffic studies were completed before Wegmans even acquired its property south of Harry L. Drive, and that it was respondent which initiated contact and proposed a joint venture. Thus, petitioner’s inducement argument is dubious at best.

It is also apparent that respondent had sufficient statutory authorization for this public/private development project. The proposed acquisition was plainly within the village’s statutory authority since the village is empowered to acquire title by condemnation for the purpose of laying out or widening streets and to accept conditional gifts (EDPL 207 [C] [2]; see, General Municipal Law § 74; Village Law § 1-102 [1], [2]; § 6-612; Matter of Russin v Town of Union, 133 AD2d 1014; Kendall v County of Dutchess, 130 AD2d 461). We also reject petitioner’s allegation of an invalid or illegal "contracting away” of respondent’s eminent domain power since there was no quid pro quo between Wegmans’ offer of financial assistance and respondent’s decision to condemn land (see generally, Collard v Incorporated Vil. of Flower Hill, 52 NY2d 594, 601). The ultimate decision on the project remained at all times in the hands of respondent. Respondent was free to proceed with this project or not to proceed solely at its own discretion.

Finally, we conclude that petitioner’s mere allegations of bad faith do not justify the judicial creation of an additional "due process” hearing. At the public hearing petitioner was free to present any evidence to undermine the bona fides of the legislative body’s decision-making process. Having completely failed to do so, petitioner cannot now be heard to complain.

We have considered petitioner’s remaining contentions and conclude that they are without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur; Judge Hancock, Jr., taking no part.

Judgment affirmed, with costs, in a memorandum.


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    In the Matter of Josephine D. Tyler.
    Decided June 30, 1989
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Josephine D. Tyler is suspended, with pay, effective immediately, from her office of Justice of the Caneadea Town Court, Allegany County, pending disposition of her request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of William T. Martin.
    Decided June 30, 1989
   OPINION OF THE COURT

On the court’s own motion, it is determined that this court’s June 2, 1989 suspension of Honorable William T. Martin from his office of Justice of the Supreme Court, Twelfth Judicial District, is continued, with pay.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of Andrew D. Reis, Respondent, v New York State Housing Finance Agency, Appellant.
    Argued June 1, 1989;
    decided June 30, 1989

      APPEARANCES OF COUNSEL

      Barry A. Weprin, David Wirtz and Sheryl Teitel Winkler for appellant.

      Andrew D. Reis, respondent pro se.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Peter G. Crary of counsel), for New York State Civil Service Commission and another, amici curiae.

      Peter L. Zimroth, Corporation Counsel (Francis F. Caputo and Elizabeth I. Freedman of counsel), for City of New York, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, without costs, and the petition dismissed against respondent Agency.

Petitioner’s probationary period commenced on the date he was appointed a permanent employee, February 7, 1985, not the date he passed the qualifying examination, December 18, 1984 (Civil Service Law § 61). Accordingly, petitioner was not entitled to the protection of the provisions of Civil Service Law § 75 until one year from the February date, adjusted for absences (see, 4 NYCRR 4.5 [f]), and the Agency was entitled to remove him, as it did, without formal charges or hearing.

In holding that the December date controlled, the Appellate Division relied on our decision in Matter of Montero v Lum (68 NY2d 253). In that case, the petitioner contended that the one-year period should be measured from the date of his temporary appointment. We rejected that contention, holding that the one-year period could not commence until the applicant became eligible for permanent appointment, which could only occur after successful completion of the qualifying examination. Coincidentally, the date of petitioner Montero’s permanent appointment and the examination date were the same and so we spoke of the date of the examination to distinguish it from the date of the temporary appointment. Our decision in Montero did not change the statutorily fixed rule that the date of permanent appointment controls for purposes of measuring the probationary period.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

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


text:
    Marie R. Jemison, Individually and on Behalf of Marie S. Jemison and Others, et al., Appellants, v Grantley E. Crichlow, Individually, as a Licensed Process Server and as a City Marshal, et al., Respondents.
    Argued June 7, 1989;
    decided June 30, 1989

      APPEARANCES OF COUNSEL

      Joel A. Siegel for appellants.

      Harry Blum for Grantley E. Crichlow, respondent.

      Peter L. Zimroth, Corporation Counsel, for City of New York, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

We agree with so much of the opinion of Justice Lawrence J. Bracken at the Appellate Division (139 AD2d 332) that holds that actions against the City Marshal for acts done in an official capacity or by omission of an official duty and based on common law must be instituted within the one-year period provided by CPLR 215 (1). Plaintiff’s cause of action based upon 42 USC § 1983 is not before us.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order affirmed, etc. [See, 74 NY2d 828.]


text:
    In the Matter of Church Street Apartment Corp. et al., Respondents, v Robert Abrams, as Attorney-General of the State of New York, Appellant.
    Argued June 1, 1989;
    decided June 30, 1989

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Gerald J. Hurwitz and O. Peter Sherwood of counsel), appellant pro se.

      Martin P. Mehler for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in so much of the opinion by Justice Joseph P. Sullivan at the Appellate Division (139 AD2d 280, 285) as addresses "the crucial issue in this case”, which is the sole issue before us on this appeal: "whether the Attorney-General may properly include the sponsor’s apartment in the base-denominator count in determining if the 51% tenants’ approval requirement of General Business Law § 352-eeee (2) (d) (i) has been met.” Certified question answered in the affirmative.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of James Krauskopf, Individually and as Commissioner of the New York City Human Resources Administration, et al., Appellants, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued June 1, 1989;
    decided June 30, 1989

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Elizabeth S. Natrella and Pamela Seider Dolgow of counsel), for appellants.

      Robert Abrams, Attorney-General (Clifford A. Royael, Peter H. Schiff and O. Peter Sherwood of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree, for the reasons stated by Justice Ann T. Mikoll at the Appellate Division (139 AD2d 147), that the Department of Social Services did not violate procedural requirements in adopting a definition of "mental disability” for the purpose of reimbursement eligibility pursuant to Social Services Law § 368-a; and that the definition adopted by the Department of Social Services is neither irrational nor arbitrary.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Darrell Lawrence, Respondent.
    Decided June 30, 1989
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]). The reversal, while termed "on the law”, was necessarily a determination by the Appellate Division of a mixed question of law and fact.


text:
    Coldwell Banker Residential Real Estate Services, Inc., Appellant and Third-Party Plaintiff-Appellant, v Ronald Eustice, Respondent. Edward J. Regan et al., Third-Party Defendants-Respondents.
    Submitted April 10, 1989;
    decided June 30, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied a motion to disqualify Edward Regan as attorney for defendant, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal denied.


text:
    In the Matter of Consolidated Edison Company of New York, Inc. (Neptune Avenue). Consolidated Edison Company of New York, Inc., et al., Respondents; 1521 Square, Inc., Appellant.
    Submitted April 10, 1989;
    decided June 30, 1989
   Motion for leave to appeal from the Appellate Division order of February 14, 1989 denying the motion for resettlement, reargument and leave to appeal to this court, and from so much of the Appellate Division order of February 14, 1989 as affirmed Supreme Court’s denial of leave to amend appellant’s answer dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Pasquale J. Curcio et al., Appellants, v E. Thomas Boyle, as County Attorney of the County of Suffolk, et al., Respondents.
    Submitted June 29, 1989;
    decided June 30, 1989
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a stay dismissed as academic.

Judge Titone taking no part.


text:
    Patricia Ludlam, Respondent, v Guilford Transportation Industries, Inc., et al., Appellants, et al., Defendant. (And Three Other Related Actions.)
    Submitted April 10, 1989;
    decided June 30, 1989
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as dismissed all claims against the City of Watervliet, denied; motion otherwise dismissed upon the ground that the remaining portions of the order of the Appellate Division do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of an Investigation into the Death of Jessica Manners. Christopher L., Appellant.
    Decided June 30, 1989
   Appeal from an order of the Appellate Division, Second Department, granting Newsday, Inc.’s motion to stay enforcement of a Suffolk County Court order pending Newsday, Inc.’s appeal from that order dismissed, by the Court of Appeals sua sponte, and the case remitted to the Appellate Division, Second Department, with directions to vacate the stay and to dismiss the motion for a stay. There is no statutory authority for direct appellate review of the County Court order (see, Matter of Alphonso C. [Morgenthau] 38 NY2d 923).