author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Robert Uplinger, Appellant. The People of the State of New York, Respondent, v Susan Butler, Appellant.
    Argued January 4, 1983;
    decided February 23, 1983

      APPEARANCES OF COUNSEL

      William H. Gardner for Robert Uplinger, appellant.

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

      Richard J. Arcara, District Attorney (John J. De Franks and Louis A. Haremski of counsel), for respondent.

      Michael J. Lavery for Lambda Legal Defense and Education Fund, amicus curiæ.

      Sarah Wunsch and Rhonda Copelon for Center for Constitutional Rights, amicus curiæ.

      Steven R. Shapiro for New York Civil Liberties Union, amicus curiæ.

   OPINION OF THE COURT

Memorandum.

The order of the County Court should be reversed and in each case the information should be dismissed.

The statute challenged on these appeals (Penal Law, § 240.35, subd 3), which prohibits loitering “in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature” must be viewed as a companion statute to the consensual sodomy statute (Penal Law, § 130.38) which criminalized acts of deviate sexual intercourse between consenting adults. We held in People v Onofre (51 NY2d 476) that the State may not constitutionally prohibit sexual behavior conducted in private between consenting adults. The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose. This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute. Because the statute itself is devoid of a requirement that the conduct proscribed be in any way offensive or annoying to others, the challenged statute cannot be categorized as a harassment statute.

The dissent improperly reads into this holding a blanket proscription upon all statutes directed against conduct of this nature. We do not hold that the Legislature cannot enact a law prohibiting a person from accosting another in an offensive manner or in an inappropriate place even if the underlying purpose is not a violation of law. The Legislature could also prohibit solicitation for the purpose of performing the object conduct in a public place. On the contrary, statutes of this general nature when properly drafted have been upheld by the courts. However, it is apparent from the wording of this statute that it was aimed at proscribing overtures, not necessarily bothersome to the recipient, leading to what was, at the time the law was enacted, an illegal act.

The dissenter’s perception of the basis for our conclusion of unconstitutionality is inaccurate and confuses the defendants’ argument with our holding; we have neither discussed nor decided any overbreadth questions by implication or otherwise.

Jasen, J.

(dissenting). The majority today invalidates a provision of the Penal Law designed to protect persons from being harassed on the public streets by others who seek only their own sexual gratification. Without addressing the arguments made by either the defendants or the People, they do so on the ground that this statute is nothing more than a companion statute to the consensual sodomy statute and since we have determined that the Legislature cannot proscribe sexual conduct between consenting adults in private, it cannot proscribe any conduct anticipatory to consensual sodomy. In my view, this court’s decision in People v Onofre (51 NY2d 476) in no way limited the Legislature’s ability to regulate public conduct, albeit anticipatory to later private conduct. As it seems to me that the statute represents a valid legislative effort to protect the public against unwarranted harassment, I am compelled to dissent.

The history of this statute does not support the majority’s contention that it “must be viewed as a companion statute to the consensual sodomy statute”. Section 240.35 of the Penal Law, denominated “Loitering” and codified with other crimes concerning public order, was derived from former sections 722 and 1148 of the Penal Law. Those proscribed loitering “about any public place soliciting men for the purpose of committing a crime against nature or other lewdness” or soliciting for immoral purposes. The former being more closely related to the statute now before us, it too was not codified under crimes of a sexual nature, but under that part of the Penal Law denominated “Disorderly conduct”. Thus, there is no indication that the Legislature was in any way addressing itself to private conduct; rather, every indication is that this statute was designed to regulate public conduct which would be considered offensive.

Whether or not the conduct which the loitering was in anticipation of is deemed criminal, it is clear that the State retains a very valid reason for proscribing loitering to solicit. Indeed, in recommending an almost identical statute, the drafters of the Model Penal Code recognized the continuing validity of this type of statute despite the adoption of the Reporters’ recommendation to decriminalize consensual sodomy. “The rationale for retaining this offense is not the regulation of private morality but the suppression of public nuisance. Persons who publicly seek or make themselves available for deviate sexual relations openly flout community standards. Moreover, indiscriminate solicitation in public streets, parks, and transportation facilities is not only an affront to moral and aesthetic sensibilities; it is also a source of annoyance to, and harassment of, members of the public who do not wish to become involved. Section 251.3 is designed to protect the legitimate expectations of citizens in public places by proscribing this kind of annoying activity. For that reason the offense is not limited to loitering for hire, as is the case under Section 251.2 on prostitution.” (Model Penal Code, § 251.3, Comment, at p 476.)

In light of this background and its codification under “Public Order” in the Penal Law, I fail to perceive how the majority can conclude that the statute is not a harassment statute. There is no necessity that the statute require the conduct proscribed to be offensive or annoying to others. This statute embodies the Legislature’s determination that public solicitation to engage in sexual conduct is necessarily offensive to others. While some may welcome such offers, there is nothing irrational in the Legislature’s determination that the vast majority of people prefer to go about their everyday business without being stopped or solicited, especially when the solicitation involves offers to engage in the most intimate of activities.

Nor is it irrational for the Legislature to have decided that the presence of people soliciting in public to engage in sexual conduct is in and of itself annoying. In addition, such conduct can be annoying, offensive and even threatening to those who are not directly solicited but merely observe such conduct. It is not difficult to envision persons being annoyed and offended if the person they are walking with is solicited. Certainly such conduct is, at a minimum, an annoyance to those who reside in the immediate area who must witness the public solicitation of sexual partners. The Legislature’s legitimate concerns with the interests of those people who desire only to live a quiet and private life mandates that it be allowed to determine when and where certain conduct is no longer protected but becomes harassment of others. Thus, I do not believe one can say, as does the majority, that “[t]he object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy.” The statute just as clearly has as an object the regulation of conduct which becomes offensive because it occurs in public.

I am further troubled by the majority’s reasoning because, although they do not state that they are invalidating the statute by application of the overbreadth doctrine, it seems to me that that rationale is implicit in their statement that (at p 938) “[i]nasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose.” To my mind, a conclusion that the statute is unconstitutional based on this reasoning indicates that loitering in anticipation of consensual sodomy is protected just as consensual sodomy is protected. I fail to perceive what basis there is to invalidate a statute on reasoning that it reaches protected activity except on the basis that by encompassing that protected activity it is overbroad. The very concept of the overbreadth doctrine is that a statute which encompasses protected activity as part of an effort to proscribe other conduct is constitutionally flawed because of its scope — in other words, because it is overbroad. (Arnett v Kennedy 416 US 134; Tribe, American Constitutional Law, § 12-24, pp 710-724.)

The majority’s reference to People v Onofre (51 NY2d 476, supra) also leads me to conclude that the majority is depending, at least in part; on the doctrine of overbreadth. They conclude: “This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute.” This court held section 130.38 of the Penal Law, which proscribed consensual sodomy to be unconstitutional “[b]e-cause [it was] broad enough to reach noncommercial, cloistered personal sexual conduct of consenting adults”. (People v Onofre, supra, at p 485.)

I cannot concur in the majority’s analysis because I do not believe that this statute is overbroad and because I do not believe that the overbreadth doctrine should be applied in this case.

In deciding whether or not a statute is facially overbroad because it reaches protected as well as unprotected activity, the Supreme Court has set down certain guidelines. First, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” (Broadrick v Oklahoma, 413 US 601, 610.) Thus, defendant Butler, who was flagging down cars while making loud and overt offers to sell sexual favors, cannot be heard to raise a claim that this statute is invalid because it might be used against someone else who is quietly standing on the street corner having the intent to make an indiscreet offer to a passerby.

As to defendant Uplinger, one must assume the majority accepted his argument that speech aimed at finding a sexual partner to engage in deviate sex is protected because the sexual conduct to be engaged in is no longer illegal. (People v Onofre, 51 NY2d 476, supra.) In doing so, the majority apparently applies the exception in the First Amendment area which allows a person to challenge a statute as having an overbroad and, hence, unconstitutionál scope even though his own conduct might be proscribed by a narrow interpretation of the statute. The majority apparently overlooks the Supreme Court’s admonition that the overbreadth doctrine should be “employed by the Court sparingly and only as a last resort” and should not be “invoked when a limiting construction has been or could be placed on the challenged statute.” (Broadrick v Oklahoma, 413 US 601, 613, supra.) In this case, we would comport with the Supreme Court’s mandate were we to interpret the statute as requiring a public act of solicitation to engage in deviate sex such as defendant Uplinger was arrested for. Although solicitation may be verbal in nature, it certainly involves conduct which is greater than speech alone.

Additionally, we should avoid invalidating a statute in toto on the ground that it is overbroad as applied to some conduct if it can be validated as to other conduct. As the Supreme Court stated: “[O]verbreadth claims, if entertained at all [should be] curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” (Broadrick v Oklahoma, supra, at p 613.) Thus, in Cantwell v Connecticut (310 US 296), a conviction under Connecticut’s breach of peace statute was set aside because the defendant’s conduct was found to be protected by the First Amendment. This, however, did not require that the statute proscribing conduct which breached the peace be invalidated in all respects.

In this case then, even if the majority concluded that defendant Uplinger’s conduct was protected by the First Amendment or that he could raise possible conflicts with the First Amendment, it would be unnecessary to invalidate the entire subdivision of section 240.35 of the Penal Law. Instead, it seems to me the proper remedy would be to apply a limited construction interpreting the statute to proscribe only acts which amount to public solicitation to engage in sexual conduct. That would be sufficient to validate the statute. Furthermore, such a construction would eliminate any fear that the broad wording of the statute would deter protected speech, particularly because such an interpretation addresses the statute to conduct as well as speech. As the Supreme Court noted in Broadrick v Oklahoma: “Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a predictio'n — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.” (Supra, at p 615.)

Because I do not believe that this statute when read to proscribe acts of solicitation in a public place must be invalidated under the overbreadth doctrine, it is necessary to address defendant’s further contention that the statute must fall on vagueness grounds. In my view, the statute is not vague as to the specific conduct prohibited and, thus, does not allow arbitrary or discriminatory police enforcement. For a statute to be deemed unconstitutionally vague, it must be shown that it “ ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute ’ ” (Papachristou v City of Jacksonville, 405 US 156,162 [emphasis supplied], quoting United States v Harriss, 347 US 612, 617). All that is required is that the “statute must be sufficiently definite to give a reasonable man subject to it notice of the nature of what is prohibited and what is required of him.” (People v Pagnotta, 25 NY2d 333, 337 [emphasis supplied], citing People v Byron, 17 NY2d 64, 67; Lanzetta v New Jersey, 306 US 451.)

Applying this well-established rule to the statute before us, I believe the statute sufficiently informs a person of the criminal implications of loitering in a public place for the purpose of “soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature.” (Penal Law, § 240.35, subd 3 [emphasis supplied].) The statute does not merely proscribe loitering, but points up the prohibited conduct — “soliciting another person to engage, in deviate sexual intercourse” — in language sufficiently definite to give a person of ordinary intelligence fair notice of the conduct forbidden. Thus, only those persons who solicit others in a public place and thereby create a public nuisance would be subject to arrest and prosecution under the statute. Since it is abundantly clear from the language of the statute that the Legislature intended to proscribe public acts of solicitation to engage in deviate sexual activities, such an interpretation of the statute is reasonable and the statute should be upheld just as we have upheld other statutes where the Legislature designated the conduct proscribed. (People v Pagnotta, 25 NY2d 333, supra; People v Smith, 44 NY2d 613.)

Thus, this statute should not fail on the reasoning of Papachristou v City of Jacksonville (405 US 156, supra) or People v Berck (32 NY2d 567, cert den 414 US 1093). Those cases addressed themselves to statutes which proscribed loitering under circumstances arousing suspicion (People v Berck, supra) and statutes which essentially allowed a person to be arrested because of conceivably innocent conduct (Papachristou v City of Jacksonville, supra). The latter was offensive because it was impossible for the ordinary person to know when he had transgressed the statute and thereby avoid doing so. In turn, this meant that the police had unbridled discretion as to when and against whom they would apply the statute. Similarly, in People v Berck (supra), we found a statute proscribing loitering under suspicious circumstances unconstitutional because the ordinary person could not be expected to know when the circumstances were adequately suspicious to trigger an arrest. The essential flaw in those statutes was the excessive discretion given the police due to the subjective standard the statutes incorporated. Such a standard meant that criminality turned largely on how the arresting officer viewed a person’s conduct. Such is not the case with this statute; rather, specific conduct — an act of solicitation occurring in a public place and involving an offer of sexual activity — is required before police action is warranted.

There is an additional question that must be addressed before it can properly be said that a statute is constitutional. When a statute “places some restriction upon an individual’s freedom of action in the name of the police power [that law] must bear some reasonable relation to the public good.” (People v Pagnotta, 25 NY2d 333, 337, supra, citing People v Bunis, 9 NY2d 1, 4.) For this reason, we have validated statutes which proscribe conduct in a school yard (People v Johnson, 6 NY2d 549), on the waterfront (People v Merolla, 9 NY2d 62), and in the hallways of public buildings when related to narcotics use (People v Pagnotta, 25 NY2d 333, supra) because there is a valid public interest involved in regulating conduct in those areas. So, too, is there a valid public interest in regulating conduct in public places when that conduct infringes on another person’s right to privacy and to be free from harassment. Clearly, such conduct will and is directed not only at those making themselves available for such solicitation, but it is also directed to any person who happens down the street, regardless of how innocently that person happens to be there. Furthermore, such conduct can offend not only those who are solicited, but those who must, due to the necessity of being in the area, observe and overhear such conduct. In my view, it is within the power of the Legislature to regulate such conduct by proscribing solicitation related to sexual activity, even activity protected by an individual’s right to privacy, when that solicitation occurs in a public place.

Accordingly, by interpreting the statute to proscribe only the overt act of solicitation in a public place, I believe the statute passes constitutional scrutiny under either the overbreadth doctrine or the vagueness doctrine. I do not, at this time, portend, as the majority suggests, to pass on the constitutionality of all statutes directed at “conduct of this nature”, but merely speak to the statute before us. In so interpreting this statute, we fulfill our obligation to sustain the constitutionality of the statute if such construction can fairly be held to have been within the contemplation of the Legislature. Given the clear intent of the Legislature to address offensive public behavior, it cannot be said that such an interpretation would constitute judicial legislation.

Given this interpretation and perspective on the statute and its derivation, I cannot agree with the majority that it is only designed to proscribe conduct anticipatory to the act of consensual sodomy. No person should have the right to create a public nuisance or disturb others on the street so that he may later engage in private sexual conduct. The Legislature certainly is within its authority to regulate conduct in public and I believe they have done so in a constitutional manner in this case.

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

In each case: Order reversed, etc.

      . Section 240.35 of the Penal Law provides, in pertinent part, that “[a] person is guilty of loitering when he: ** * * 3. Loiters or remains in a public place for the purpose of * * * soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature”.

      . Crimes against'nature were defined in former section 690 of the Penal Law and incorporated all acts of sodomy, consensual or otherwise.

      . The later section was clearly aimed at pimping activities as it also made it a crime to live wholly or in part on the earnings of a prostitute.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Claim of Joseph Kuczkowski, Respondent, v Bethlehem Steel Corporation, Appellant. Workers’ Compensation Board, Respondent.
    Decided February 23, 1983

      APPEARANCES OF COUNSEL

      Ronald E. Weiss for appellant.

      Thomas E. Krug for Joseph Kuczkowski, respondent.

      Robert Abrams, Attorney-General (Diane Ciccone of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (90 AD2d 612).

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


text:
    Automated Ticket Systems, Ltd., Appellant, v John D. Quinn, as Director of New York State Division of the Lottery, et al., Respondents.
    Decided February 23, 1983

      APPEARANCES OF COUNSEL

      Samuel Gottlieb for appellant.

      Robert Abrams, Attorney-General (Peter J. Dooley of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (90 AD2d 738).

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


text:
    In the Matter of the Arbitration between Albert Alpert & Sons, Ltd., Appellant, and John Mee, Inc., Respondent.
    Decided February 23, 1983

      APPEARANCES OF COUNSEL

      Patrick T. O’Malley for appellant.

      Jerry Mond for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (90 AD2d 463).

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


text:
    In the Matter of Ottavio Fanelli, Appellant, v New York City Conciliation and Appeals Board, Respondent, and William R. Biery, Intervenor-Respondent.
    Decided February 23, 1983

      APPEARANCES OF COUNSEL

      George A. Burrell for appellant.

      Ellis S. Franke and Mary Ellen Cronly for respondent.

      Michael R. Finder for intervenor-respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (90 AD2d 756).

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


text:
    Earthlene Allen et al., Respondents, and Roger Anderson, Intervenor-Respondent, v Barbara B. Blum, as Commissioner of the State of New York Department of Social Services, Appellant, et al., Defendant.
    Argued February 8, 1983;
    decided February 23, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Maryellen Weinberg and Peter H. Schiff of counsel), for appellant.

      Ian F. Feldman and David Goldfarb for respondents and intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

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

The only issues raised by the commissioner’s motion to dismiss were whether a declaratory judgment action could be brought against her and whether the complaint stated a cause of action. We agree with the courts below that because the action seeks review of a continuing policy, a declaratory judgment class action rather than individual article 78 proceedings is proper (Matter of Zuckerman v Board of Educ., 44 NY2d 336, 333-334),

We agree also that the complaint sufficiently states a cause of action for declaratory relief, but do not find it necessary to reach the question whether due process requires that the commissioner’s investigation be completed before a notice of termination is issued, that requirement being contained in the commissioner’s present regulations which, of course, are binding upon her (Matter of Frick v Bahou, 56 NY2d 777, 778). Subdivision 5 of section 131 of the Social Services Law requires that before a recipient may be deemed to have refused to accept employment his or her failure to report be willful; 18 NYCRR 351.22 (e) directs that a social service district verify ineligibility before it notifies a recipient of a proposed change in his assistance grant; 18 NYCRR 358.8 (a) (2) defines adequate notice of discontinuance as “a written notice that includes details of reasons for the proposed action.” The regulations and the statute thus mandate that willfulness, which is an element of ineligibility, be verified prior to notice of termination and that the notice detail that it is the willful failure to report upon which discontinuance is based.

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

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


text:
    City of New York et al., Respondents, v Uniformed Firefighters Association, Local 94, IAFF, AFL-CIO, Appellant.
    Argued February 16, 1983;
    decided February 23, 1983

      APPEARANCES OF COUNSEL

      John F. Mills, Robert A. Kennedy and David Westermann, Jr., for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Carolyn E. Demarest and Leonard Koerner of counsel), for respondents.

      Beverly Gross, Harold L. Fisher, Murray Gordon, Ann F. Hoffman, Jeffrey S. Karp, James R. Sandner, David N. Stein and Nancy E. Tripp for Municipal Labor Committee, amicus curiæ.

   OPINION OF THE COURT

Memorandum.

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

The city concedes, and we agree, that subdivision b of section 1173-4.3 of the Administrative Code of the City of New York (Collective Bargaining Law) does not proscribe permissive bargaining of management prerogatives such as the “personnel by which government operations are to be conducted” but argues that by including in its contract with UFA the job description of a full-duty fireman it did not agree to bargain in that respect. The difficulty with that argument is that the effect of inclusion in the job description was the issue submitted to the arbitrator and his award (enjoining use of civilian inspection employees in fire department districts) can only be overturned if it is contrary to law or if “without engaging in extended fact-finding or legal analysis * * * [the court can] conclude that public policy precludes its enforcement” (Matter of Sprinzen [Nomberg], 46 NY2d 623, 631). Neither subdivision a of section 487 of the City Charter nor subdivision b of section 1173-4.3 of the Collective Bargaining Law declares a public policy which is beyond waiver and the arbitrator having ruled that the city did waive, his ruling, even if erroneous, is not irrational and, therefore, is binding on the city with respect to the present contract (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582).

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

Order reversed, etc.


text:
    In the Matter of the Claim of Ella McNeill, Appellant. Board of Education of the City School District of the City of New York, Respondent. Lillian Roberts, as Industrial Commissioner, Respondent. (Proceeding No. 1.) In the Matter of the Claim of Dorothy Hauptman, Appellant. Board of Education of the City School District of the City of New York, Respondent. Lillian Roberts, as Industrial Commissioner, Respondent. (Proceeding No. 2.)
    Decided February 23, 1983

      APPEARANCES OF COUNSEL

      Gerald A. Dwyer for appellants.

      Robert Abrams, Attorney-General (Frederick M. Paola of counsel), for Lillian Roberts, as Industrial Commissioner, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis of counsel), for Board of Education of the City School District of the City of New York, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), orders affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (88 AD2d 1050).

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


text:
    The People of the State of New York, Appellant, v Lewis Lasher, Respondent.
    Submitted February 10, 1983;
    decided February 23, 1983
    APPEARANCES OF COUNSEL

      Charles E. Inman, District Attorney (Allen C. Miller, Jr., of counsel), for appellant.

      Ira Mendleson, III, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be reversed and defendant’s motion to suppress tapes of his telephone conversations with complainant denied.

Defendant, Postmaster of the Germantown Post Office, was charged in Town Court with violation of subdivision 1 of section 240.30 of the Penal Law, aggravated harassment, in that he attempted to communicate by telephone with another person, with the intent to harass, annoy, threaten or alarm her. The charge arises out of a series of telephone calls made by defendant to a coemployee at the post office and at her home. After arraignment, defendant moved to suppress the tape recordings of the telephone calls made by the complainant with the knowledge and advice of postal employees. After a hearing the Town Court granted the motion as to calls completed at the post office, holding that the eavesdropping was illegal because made in violation of Postal Regulation (Employee & Labor Relations Manual) 668.291. That regulation provides: “During the course of activities related to postal employment, no postal employee will record, monitor, or otherwise intercept the oral or wire communications of any other person through the use of any electronic, mechanical or other device, nor listen in on a telephone conversation, nor direct another to do so, unless all parties involved in the communication consent to such interception.”

County Court affirmed the Town Court’s order.

We now reverse. It is not unlawful to eavesdrop on telephone conversations with the consent of one of the parties to the conversation (Penal Law, § 250.00; CPL 700.05, subd 3; Rathbun v United States, 355 US 107), nor is the tape recording evidence in this case to be excluded because the consenting party, who was a government employee, may have acted contrary to the rules of her employer (see United States v Caceres, 440 US 741).

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

Order reversed, etc.


text:
    Michael Miskiewicz, as Father and Natural Guardian of Robert Miskiewicz, an Infant, et al., Appellants, v Hartley Restaurant Corp. et al., Defendants, and Michael Grammas et al., Respondents.
    Argued February 15, 1983;
    decided February 23, 1983

      APPEARANCES OF COUNSEL

      Kenneth R. Larywon and Timothy J. McGinn for appellants.

      Alvin P. Bluthman and Nathan Cyperstein for Michael Grammas and another, respondents.

      Lawrence H. Reid, Jr., for Village of Valley Stream, precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the case remitted to the Appellate Division, Second Department, for further proceedings with respect to the individual respondents, and the order of Supreme Court, Nassau County, insofar as it denied the motions to dismiss the complaint as to respondent Village of Valley Stream reinstated.

Defendants moved pursuant to CPLR 3216 to dismiss the action because of plaintiffs’ failure to file a note of issue. Special Term denied the motion. The Appellate Division, relying on Barasch v Micucci (49 NY2d 594) and noting that the excuse for the delay proffered by plaintiffs’ counsel was law office failure, reversed “on the law”. It erred in doing so and we therefore remit so that it may reconsider the matter and exercise its discretion.

Insofar as the Appellate Division granted the motion of the defendant Village of Valley Stream to dismiss the action, its order is reversed, the order of Special Term reinstated and defendant village’s motion to dismiss denied. It appears from the record before us that defendant village’s notice of appeal to the Appellate Division was not timely and therefore that court was without jurisdiction.

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

Order reversed, etc.


text:
    John K. Lind, Appellant, v Violet Lind, Respondent.
    Argued February 16, 1983;
    decided February 23, 1983

      APPEARANCES OF COUNSEL

      Irving I. Erdheim, Leonard C. Shalleck and Ralph S. Joseph for appellant.

      Alan D. Scheinkman and Miriam M. Robinson for respondent.
   OPINION OF THE COURT

Memorandum.

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

That court properly resolved the factual disputes before it in the causes of action for separation and divorce (see Hessen v Hessen, 33 NY2d 406, 408) and it not appearing that that court abused its discretion or committed an error of law, its determinations of alimony, counsel fees and the use of the marital property are beyond our review (see Patron v Patron, 40 NY2d 582, 585).

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Felix Amill, Respondent.
    Argued February 17, 1983;
    decided February 23, 1983
   Appeal dismissed. Although the order of the Appellate Division recites that the determination in that court was “on the law”, a review of the opinion rendered by that court reveals that its disposition was predicated, at least in part, upon a factual finding concerning probable cause to arrest. Because the determination 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, subd 2, par [a]), this appeal does not lie.


text:
    Vincent J. Sorgie, Respondent, v Donald Dalton et al., Appellants.
    Decided February 23, 1983
   On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Laureano Suarez, Respondent, v Yolanda Suarez, Appellant.
    Decided February 23, 1983
   On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Joseph Tremarco, Appellant, v New York State Board of Parole et al., Respondents.
    Argued February 17, 1983;
    decided February 23, 1983
   Appeal dismissed, without costs, upon the ground that the appeal is moot, inasmuch as petitioner has been released from State custody.


text:
    The People of the State of New York, Appellant, v Miguel Alicea, Respondent.
    Submitted February 14, 1983;
    decided February 23, 1983
   Motion to dismiss the appeal denied.


text:
    Jerome Beltz, an Infant, by His Father and Natural Guardian, Raymond Beltz, et al., Respondents, v City of Buffalo et al., Appellants.
    Submitted January 24, 1983;
    decided February 23, 1983
   Motion to dismiss the appeal denied.


text:
    In the Matter of L. Pamela P., Respondent, v Frank S., Appellant.
    Decided February 23, 1983
   Appeal dismissed, without costs, by the court sua sponte, upon the ground that the modification at the Appellate Division is not in a “respect, which is within the power of the Court of Appeals to review” (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582), and upon the ground that no substantial constitutional question is directly involved.


text:
    Trans World Airlines, Inc., Appellant, v State Human Rights Appeal Board et al., Respondents.
    Submitted January 31, 1983;
    decided February 23, 1983
   Motion for vacatur of dismissal order of December 15, 1982 or, alternatively, for leave to appeal, denied in each respect. [See 58 NY2d 778.]


text:
    The People of the State of New York ex rel. Oscar Posada-Osorio, Appellant, v Edward R. Hammock, as Chairman of State of New York Parole Authorities, Executive Department, Respondent.
    Argued January 10, 1983;
    decided February 10, 1983

      APPEARANCES OF COUNSEL

      Robert Selcov, Joan S. Posner and David C. Leven for appellant.

      Robert Abrams, Attorney-General (Frederick R. Walsh and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to Supreme Court for determination of whether the petitioner was within the convenience and practical control of the New York parole authorities while in Federal custody (see People ex rel. Vasquez v New York State Bd. of Parole, 58 NY2d 981 [decided herewith]; People ex rel. Gonzales v Dalsheim, 52 NY2d 9). Although parole revocation proceedings had been commenced prior to the Gonzales decision, no final judgment had been issued against petitioner before Gonzales was handed down; Gonzales thus controls.

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

Order reversed, without costs, and matter remitted to Supreme Court, Queens County, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Hector Vasquez, Appellant, v New York State Board of Parole et al., Respondents.
    Argued January 10, 1983;
    decided February 10, 1983
    APPEARANCES OF COUNSEL

      Robert Selcov, Joan S. Posner and David C. Leven for appellant.

      Robert Abrams, Attorney-General (Martin A. Hotvet and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to Supreme Court for determination of whether the petitioner was subject to the convenience and practical control of the New York parole authorities while he was in the custody of the State of Connecticut.

In 1976 petitioner was sentenced by the New York courts to a term of one year to life for criminal sale of a controlled substance. He was released on parole on September 27, 1977. In 1979 he was arrested in Connecticut, convicted of robbery first degree and sentenced to 4 term of three and one-half to seven years in prison. On July 30, 1979 New York issued a parole violation warrant and forwarded it to the Connecticut authorities. On October 15,1979 the board declared petitioner delinquent as of December 11,1978 and it requested that the Connecticut authorities return petitioner to New York when he was available. No revocation hearings were held for petitioner until after he was paroled by Connecticut on March 12, 1982 and while the appeal from this proceeding was pending.

By this article 78 proceeding commenced September 30, 1981, petitioner contended that he was being denied his right to a timely parole revocation hearing. He alleged that respondent failed to comply with section 259-i of the Executive Law inasmuch as no preliminary hearing had been held within 15 days of the execution of the parole revocation warrant and because respondent refused to afford him a final hearing until his return to New York after serving his sentence in Connecticut and thus the revocation of his parole must be vacated.

Special Term dismissed the petition based upon respondents’ defense that petitioner had not been accepted for parole supervision by the State of Connecticut and that he therefore did not come within the terms of the Interstate Compact (Executive Law, § 259-m). Accordingly, it held that petitioner was not subject to the convenience and practical control of the New York parole authorities. The Appellate Division affirmed, distinguishing People ex rel. Gonzales v Dalsheim (52 NY2d 9) on that basis. Our holding in Gonzales should be applied to this case. Although parole revocation proceedings had been commenced prior to the Gonzales decision, no final judgment had been issued against petitioner before Gonzales was handed down; Gonzales thus controls. We disagree with the Appellate Division, however, that the proceeding can be distinguished from Gonzales because in that case the New Jersey authorities had accepted supervision of the parolee under the Interstate Compact while in this case Connecticut had not. By our ruling in Gonzales we established that the burden rests upon the parole authorities in every instance in which timely hearings have not been held to demonstrate that they were unable to do so because the parolee was not subject to their convenience and practical control. A presumption alone cannot satisfy that burden.

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

Order reversed, without costs, and matter remitted to Supreme Court, Albany County, for further proceedings in accordance with the memorandum herein.


text:
    Burlington Industries, Inc., et al., Respondents, v New York City Human Rights Commission et al., Appellants.
    Argued February 14, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Lois Whitman and Alan Serrins of counsel), for New York City Human Rights Commission, appellant.

      Diane Serafin Blank for Jean Spencer, appellant.

      Laura B. Hoguet and Alice R. Belair for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. We agree with the Appellate Division that the record does not support the commission’s determination that Burlington discriminated against the complainant on the basis of her sex.

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


text:
    Sharp Electronics Corporation, Respondent, v Arkin-Medo, Inc., Appellant.
    Argued February 11, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      Stephen H. Gersowitz for appellant.

      Matthew E. Digby, Peter A. Dankin and Lance Gotthoffer for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (86 AD2d 817).

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


text:
    Suburban Pontiac, Inc., et al., Appellants, v General Motors Corp., Respondent, et al., Defendant.
    Argued February 7, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      Michael J. Ricigliano, John F. Principe and David J. Sutton for appellants.

      Guy Miller Struve, Mary Anne Wirth, D. Scott Wise and Peter D. Kolbrener for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. The factual determinations of the Appellate Division more nearly conform to the weight of the evidence, and there was no error of law in its declaration that General Motors had validly exercised its right to terminate the dealership agreement or in its decision that the complaint should otherwise be dismissed.

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


text:
    The People of the State of New York, Respondent, v Raymond Tinsley, Appellant. In the Matter of Raymond Tinsley, Appellant, v Ivan Warner, as a Justice of the Supreme Court of the State of New York, Respondent.
    Argued February 9, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      Howard B. Comet and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Harold Kenneth King, Jr., and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order and judgment of the Appellate Division in these two actions should be affirmed.

Defendant presses several issues. We reject his contention that it was error at his first trial for the trial court sua sponte to have declared a mistrial and that in consequence defendant was unconstitutionally exposed to double jeopardy on his second trial. On the first trial, after the jury had been charged and sequestered and the alternate jurors apparently dismissed, juror No. 9, without notifying anyone, walked away from the other jurors, disappeared overnight, and appeared the following morning after the Trial Judge, when informed of his absence, made arrangements for his return. The court in the presence of both counsel interviewed the juror, who explained that the deliberations had given him an upset stomach and that he did not think the jurors, uneducated in the law, could resolve the issues without an adviser knowledgeable in the law, adding “I just feel I cannot be fair to the person being judged.” After discussion with both counsel as to what remedy would be appropriate, during which discussion each declined to make a motion for a mistrial, and then a recess, the trial court without further consultation with counsel, but following another inquiry of the juror, declared a mistrial. We find no error of law in the implicit determination of the Appellate Division that the trial court was warranted, in the unusual circumstances which it confronted, in declaring a mistrial on the ground of manifest necessity (People v Michael, 48 NY2d 1, 9) and in accordance with CPL 280.10 (subd 3). Nor did the failure of the trial court to consult further with counsel prior to the declaration of mistrial vitiate the propriety of such declaration; the trial court was justified in concluding that there was no acceptable alternative to a mistrial. Accordingly, there is no merit to defendant’s double jeopardy claim.

The dual findings of the suppression court that the pretrial identification procedure involving use of a photo array was not impermissibly suggestive and that in any event there was an independent source for the in-court identification of defendant by Carmen Da Vila, were not disturbed at the Appellate Division. There being evidence in the record for their support, we conclude that the trial court did not err as a matter of law in permitting the witness to identify defendant on trial. (People v Dickerson, 50 NY2d 937.)

Nor was it error in the prosecution of this crime of violence, when the correctness of the date on a check received by defendant from the victim was placed in issue, for the trial court to conclude that it was inappropriate to grant defendant’s request to charge the jury by reference to the presumption applicable to commercial paper generally that the date on a check is presumed to be correct (Uniform Commercial Code, § 3-114, subd [3]; CPL 60.10).

We have examined defendant’s other contentions and conclude that none warrants reversal of his conviction.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Simons concur; Judge Meyer taking no part.

People v Tinsley: Order affirmed in a memorandum.

Matter of Tinsley v Warner: Judgment affirmed, without costs, in a memorandum.


text:
    Arthur Jaffee Associates, Appellant, v Bilsco Auto Service, Inc., Defendant, and Lancia of America, Division of Fiat Motors of North America, Inc., Respondent.
    Argued February 9, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      Robert A. Dean for appellant.

      Joseph M. Schnitter and Neil A. Goldberg for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division properly granted the defendant’s motion for summary judgment. The motion papers presented no question of fact for trial sufficient to negate the validity and binding effect of the disclaimer of warranty coverage. In addition, on the facts of this case, there being no privity between the purchaser and the defendant there can be no implied warranty.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Charles Boyd, Appellant.
    Argued February 10, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      Michael J. Obus and Matthew Muraskin for appellant.

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

Order affirmed. On the record it cannot be said that the courts below committed an error of law in concluding that the defendant’s statements were spontaneous (People v Rivers, 56 NY2d 476; cf. Rhode Island v Innis, 446 US 291).

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


text:
    County of Nassau et al., Respondents, v Incorporated Village of Woodsburgh et al., Appellants, and Ferne M. Steckler et al., Intervenors-Appellants.
    Argued February 15, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      Jonathan A. Weinstein, Village Attorney, for appellants.

      Alan Manning Miller for intervenors-appellants.

      Edward G. McCabe, County Attorney (Joshua A. Elkin of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

In 1937, the Incorporated Village ofWoodsburgh elected to become a part of the Nassau County Police District, thus merging its police department with the county police department. Implicit in this merger and the relevant provisions of the Nassau County Charter is a proscription against the maintenance by the village of a separate police department. Accordingly, plaintiffs were properly awarded relief in the form of an injunction prohibiting defendants from employing village constables to perform police functions, permitting the constables to perform police functions and using village funds to pay the salaries of such constables. The question whether the village can withdraw from the Nassau County Police District is not before us. Inasmuch as no question is presented on this appeal with respect to the nonfinal and expressly severed portion of the determination below, the question certified by the Appellate Division is not answered as unnecessary.

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

Order affirmed, with costs, in a memorandum. Question certified not answered as unnecessary.


text:
    In the Matter of the Estate of William J. Fello, Deceased. Dorothy Fello, Appellant; Anthony Mazzarella et al., Respondents.
    Argued February 7, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      J. Donald, Higgins for appellant.

      David Jaffe, Ernest Allen Cohen and James P. Donohue, Jr., for respondent.
   OPINION OF THE COURT

Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, for reasons stated in the memorandum at the Appellate Division (88 AD2d 600).

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


text:
    Holliswood Care Center, Appellant, v Robert P. Whalen, as Commissioner of the New York State Department of Health, et al., Respondents.
    ' Argued February 14, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      Irwin R. Karassik for appellant.

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by declaring the establishment of plaintiff’s 1977 Medicaid reimbursement rate to be valid and, as so modified, affirmed.

As to the 1975 and 1976 reimbursement rates, plaintiff’s action, which was commenced on June 22, 1977, was properly held to be time barred because more than four months from June 25,1976, the date on which the administrative appeal for these years must be deemed to have been determined, had elapsed (Solnick v Whalen, 49 NY2d 224). The post-June 25, 1976 correspondence did not extend the statutory period since it amounted to no more than a request for reconsideration and therefore could not operate to toll the limitations period (Matter of De Milio v Borghard, 55 NY2d 216, 220).

The challenge to the 1977 reimbursement rate, however, is timely. That year’s “rate calculation sheet” was transmitted to the plaintiff by the commissioner on January 24, 1977 and the administrative appeal therefrom was initiated by plaintiff’s protest on February 9, 1977. The commissioner having failed to act on this protest by the time the suit was commenced on June 22, 1977, the claim for this year was not barred.

Nor, as to the 1977 year, is the doctrine of collateral estoppel applicable. The annual reimbursement rate was subject, among other things, to such computational formulae and regulations as might be established for each year. It follows that whether the Statute of Limitations has run against a challenge to the reimbursement rate for a particular year is an issue not precluded by a determination governing a prior one, since, strictly speaking, the underlying issues will not necessarily be the same (People ex rel. Watchtower Bible & Tract Soc. v Haring, 286 App Div 676, 681 [Halpern, J.]).

On the merits, however, the commissioner’s determination that the plaintiff’s lease did not control the allowance for real property cost in computing the 1977 rate was not arbitrary or capricious (Matter of Sigety v Ingraham, 29 NY2d 110, 114). Because the plaintiff’s three principals each had a 3% ownership interest in the realty leased to the facility, it came within the regulation applicable to a “related organization” as to which the commissioner was free to choose between the “cost to the related organization or the market price” (10 NYCRR 86-2.26). We observe that in this instance the regulation which was in effect at the time that the lease was entered into had been repealed before the plaintiff began its operations. In any event, the prior regulation would not be controlling (Matter of White Plains Nursing Home v Whalen, 53 AD2d 926, 927, affd 42 NY2d 838, cert den 434 US 1066).

Finally, we note that, since this is a declaratory judgment action, the Appellate Division should have directed the entry of a declaration in favor of the commissioner rather than dismissal of the complaint (Lanza v Wagner, 11 NY2d 317, 334).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Simons concur; Judge Meyer taking no part.

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to respondents.


text:
    Board of Education of Syracuse City School District, Appellant, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Argued February 9, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      David M. Garber, Corporation Counsel (James L. Gelormini of counsel), for appellant.

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

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (87 AB2d 1001). In view of the lack of standing we do not address the constitutional claims.

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


text:
    The People of the State of New York, Respondent, v Carlos Morales, Appellant.
    Argued February 10, 1983;
    decided March 22, 1983
    APPEARANCES OF COUNSEL

      David Segal for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Because defendant failed to submit an affidavit from the attorney who represented him at plea and sentence or offer an explanation of his failure to do so, it cannot be said that as to defendant’s failure to appeal the coram nobis Judge erred in denying the application without a hearing (People v Scott, 10 NY2d 380). The other bases advanced for vacating the judgment clearly could have been raised on appeal, had one been taken (see CPL 440.10, subd 2, par M).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Marvin Powell, Appellant.
    Argued February 10, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      Joseph B. Mistrett and Rose H. Sconiers for appellant.

      Richard J. Arcara, District Attorney (John J. De Franks and Barbara Davies Eberl of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It cannot be said that the evidence was insufficient to sustain the charge of burglary in the third degree simply because the building housed attorneys’ offices and the front door was unlocked. Subdivision 5 of section 140.00 of the Penal Law provides that “A person who * * * enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain” (emphasis supplied). The jury could find on the evidence before it that though defendant’s entry was licensed, he was not licensed to remain because it was apparent after his entry from the time of the day and the absence of any persons in the reception area or individual offices that the building was not “at the time open to the public”.

Nor was it error to decline to charge as requested that “the fact that defendant might have entered with criminal intent does not extinguish his otherwise existing license to enter if the jury finds that such a license exists” (cf. People v Brown, 25 NY2d 374). Under the circumstances of this case, the requested charge was irrelevant, the only issue being whether defendant remained after discovering that the apparent license to enter did not exist because the building was not at the time open to the public. On that question the charge as given was sufficient.

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

Order affirmed in a memorandum.


text:
    In the Matter of Lee Hopkins, on Behalf of Herself and Her Minor Child, Anthony Hopkins, Appellant, v Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued February 14, 1983;
    decided March 22, 1983

      APPEARANCES OF COUNSEL

      Douglas Ruff and Leonard S. Clark for appellant.

      Robert Abrams, Attorney-General (Maryellen Weinberg, Peter H. Schiff and Daphne Fuller of counsel), for respondents.
   Judgment affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 613) to which we add that, although the notice of denial of benefits was defective for the further reason that it failed to state the regulation supporting the action as required by 45 CFR 205.10 (a) (4) (i) (B), that defect also was waived by petitioner’s counsel’s failure to raise the defect at the hearing.

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


text:
    Mesivta of Forest Hills Institute, Inc., et al., Respondents, v City of New York et al., Appellants.
    Argued February 16, 1983;
    decided March 23, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (James P. Griffin and Leonard Koerner of counsel), for appellants.

      J. Michael Gottesman and Marc D. Stern for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and judgment granted declaring that the action of the Board of Education of the City of New York to reacquire and remodel a former school building was valid.

It is well established that a taxpayer action pursuant to section 51 of the General Municipal Law lies “only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes” (Kaskel v Impellitteri, 306 NY 73, 79; see Gaynor v Rockefeller, 15 NY2d 120,133-134; Stahl Soap Corp. v City of New York, 5 NY2d 200, 204; Talcott v City of Buffalo, 125 NY 280, 288). Plaintiffs here allege only that defendant board of education failed to specify in detail, as required by subdivision 3 of section 2556 of the Education Law, its reasons for approving the reacquisition and remodeling of a former school building and the cost thereof. A failure to observe these statutory provisions does not constitute the fraud or illegality necessary to support a taxpayer action pursuant to section 51. To hold otherwise “would subject the discretionary action of all local officers and municipal bodies to review by the courts at the suit of the taxpayers, a result which would burden the courts with litigation, without increasing the efficiency of local administration” (Talcott v City of Buffalo, supra, at p 288). Nor do any of plaintiffs’ other allegations constitute waste within the meaning of the statute.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and judgment granted in accordance with the memorandum herein.


text:
    The People of the State of New York, Respondent, v William Boyd, Appellant.
    Argued February 17, 1983;
    decided March 23, 1983

      APPEARANCES OF COUNSEL

      Abigail Everett and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant advances several claims in support of his contention that there should be a reversal; none is availing. The objections registered to the admission of the introductory portion of the taped conversation between defendant and the police agent — that it was "self-serving” and “not in furtherance of any conspiracy” — were insufficient to preserve for our review his present contention that it was inadmissible hearsay (cf. People v Gonzalez, 55 NY2d 720).

It was not error, on direct examination of the agent, to have permitted the use of her notes to refresh her recollection, the notes themselves not having been offered in evidence. Nor was it error to allow the prosecutor on redirect examination to rehabilitate the agent-witness, following what were at least implicit assertions of recent fabrication, by eliciting testimony that she had included defendant’s name in her “buy report” of October 24, 1974 where defendant’s attorney on prior cross-examination had opened the door by interrogation as to the omission of defendant’s name from her “buy reports” of October 31, and November 28, 1974.

Finally, defendant is not entitled to a reversal of his conviction because of the inability of the prosecution to produce a confidential informer whose identity was known to defendant, who was not an eyewitness to the drug transactions, and whose unavailability had been explained at the first trial in 1977.

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

Order affirmed in a memorandum.


text:
    Barry Buchner, Respondent, v Pines Hotel, Inc., Appellant.
    Argued February 7, 1983;
    decided March 23, 1983

      APPEARANCES OF COUNSEL

      Gerald Orseck and Marvin Newberg for appellant.

      Lawrence E. Lagarenne and Keith G. Ingber for respondent.
   OPINION OF THE COURT

Memorandum.

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

The defendant contends that it was engaged in a joint venture with plaintiff’s employer. It therefore raises section 11 of the Workers’ Compensation Law as an affirmative defense claiming this statute provides plaintiff’s sole remedy. However, the factual finding- below was that the parties did not intend to create a joint venture and that indeed none was created. Because the affirmed finding on this point is supported by the record it may not be set aside by this court.

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

Order affirmed, etc.


text:
    W. T. Wang, Inc., Appellant, v New York State Department of Taxation and Finance, Respondent.
    Argued February 17, 1983;
    decided March 23, 1983

      APPEARANCES OF COUNSEL

      Anthony L. Tersigni, Paul K. Feldman and David Isaacson for appellant.

      Robert Abrams, Attorney-General (Peter H. Schiff, George D. Zuckerman and David M. Pollack of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Although recited to have been “on the law” a reading of the memorandum of the Appellate Division discloses that it declined to entertain this action for declaratory judgment as “an inappropriate vehicle” (88 AD2d 825, 826). We conclude that there was no error of law in the Appellate Division’s substitution of its exercise of discretion for that of Special Term under CPLR 3001 (contrast Dun & Bradstreet v City of New York, 276 NY 198, 206-207).

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

Order affirmed, with costs, in a memorandum.


text:
    Chemical Bank, Respondent, v PIC Motors Corp. et al., Defendants, and Aaron Siegel, Appellant.
    Argued February 16, 1983;
    decided March 23, 1983

      APPEARANCES OF COUNSEL

      Lawrence B. Kahn for appellant.

      Harold Weisblatt and Theodore M. Finkel for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for reasons stated in the opinion of Justice Arnold L. Fein (87 AD2d 447), to which we but add two comments.

First, that defendants had not completed discovery did not interdict the grant of summary judgment (Griffin v Cortland Mem. Hosp., 85 AD2d 837, mot for lv to app den 56 NY2d 507). In particular, defendants, in opposing plaintiff’s motion, failed to tender an affidavit or affidavits averring the existence, in admissible form, of proof which would present a triable issue of fact or, if hearsay, an acceptable excuse for the failure to present firsthand knowledge (Egleston v Kalamarides, 58 NY2d 682, 684; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).

Second, Special Term’s grant of summary judgment on plaintiff’s claim despite the pendency of defendant’s counterclaim was not an abuse of discretion, without more, since it was not supported by a showing of merit (M & S Mercury Air Conditioning Corp. v Rodolitz, 24 AD2d 873, 874, affd 17 NY2d 909).

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

Order affirmed, with costs, in a memorandum.


text:
    Video Corporation of America, Formerly Known as Teletronics International, Inc., Appellant-Respondent, v Frederick Flatto Associates, Inc., Respondent-Appellant and Third-Party Plaintiff. American Guarantee and Liability Insurance Company, Third-Party Defendant.
    Argued February 17, 1983;
    decided March 23, 1983

      APPEARANCES OF COUNSEL

      Andrew C. Jacobson for appellant-respondent.

      Andrew R. Simmonds and Robert E. Meshel for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to deny the motion to dismiss the complaint and to reinstate the complaint in its entirety and, as so modified, should be affirmed, with costs to plaintiff.

Justice Sandler’s analysis (85 AD2d 448, 457) of our holding in Sears, Roebuck & Co. v Enco Assoc. (43 NY2d 389; see, also, Steiner v Wenning, 43 NY2d 831; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669) is correct: an action for failure to exercise due care in the performance of a contract insofar as it seeks recovery for damages to property or pecuniary interests recoverable in a contract action is governed by the six-year contract Statute of Limitations (CPLR 213, subd 2). To the extent that Gilbert Props. v Millstein (33 NY2d 857) and Adler & Topal v Exclusive Envelope Corp. (84 AD2d 365) are to the contrary they should not be followed.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to plaintiff. Question certified answered in the negative.


text:
    The People of the State of New York, Appellant, v Edward McNally, Respondent.
    Decided March 23, 1983
    APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Merri Turk Lasky of counsel), for appellant.

      R. Bertil Peterson for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed. Although the order of the Appellate Division recites that the determination in that court was “on the law,” a review of the opinion rendered by that court reveals that its disposition was predicated, at least in part, upon factual findings concerning probable cause to arrest and when the arrest actually occurred. Because the determination 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, subd 2, par [a]), this appeal does not lie.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed in a memorandum.


text:
    In the Matter of Mary Kallas, Appellant, v Board of Estimate of the City of New York et al., Respondents, and Brooklyn Heights Association, Inc., et al., Intervenors-Respondents.
    Decided March 23, 1983

      APPEARANCES OF COUNSEL

      Francis L. Giordano for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Carolyn E. Demarest of counsel), for respondents.

      Alan R. Glickman for intervenors-respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (90 AD2d 774).

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


text:
    In the Matter of Admiral Wine & Liquor Co., Also Known as Admiral Wine Merchants, Respondent-Appellant, v State Liquor Authority, Appellant-Respondent.
    Submitted March 14, 1983;
    decided March 23, 1983
   Motion to vacate statutory stay pursuant to CPLR 5519 (subd [a], par 1) granted; State Liquor Authority and its agents and employees are restrained from interfering with petitioner’s continued operation pending determination of the appeal before this court.


text:
    In the Matter of John Lazarcheck et al., Appellants, v Joseph J. Christian, as Chairman of the New York City Housing Authority, et al., Respondents.
    Submitted March 21, 1983;
    decided March 23, 1983
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that no appeal as of right lies, noting that petitioners-appellants have 30 days, pursuant to CPLR 5514 (subd [a]), to make a motion for leave to appeal.


text:
    City of Oswego, Appellant, v James Prevost, as Commissioner of the Office of Mental Health for the State of New York, et al., Respondents.
    Decided March 23, 1983
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie as of right (CPLR 5601).

Judge Simons taking no part.


text:
    In the Matter of the Guardianship of Enid R., an Infant.
    Submitted March 14, 1983,
    decided March 23, 1983
   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 is not the type of nonfinal order which comes within the meaning of CPLR 5602 (subd [a], par 2).


text:
    In the Matter of Paul L. McGee.
    Decided March 24, 1983
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Paul L. McGee is suspended, with pay, effective immediately, from his office of Justice of the Peru Town Court, Clinton County, New York, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Elmer L. Lobdell.
    Decided March 24, 1983
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Elmer L. Lobdell is not suspended from his office of Justice of the Fulton Town Court, Schoharie County, New York, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    John Harris, Appellant, v Alcan Aluminum Corporation, Respondent.
    Decided March 24, 1983

      APPEARANCES OF COUNSEL

      George C. Cooley for appellant.

      Michael P. Daly for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (91 AD2d 830).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer; Judge Simons taking no part.


text:
    Henry A. Grassi, Jr., et al., Appellants, v Tatavito Homes, Inc., et al., Defendants, and John A. Porco, Respondent.
    Decided March 24, 1983

      APPEARANCES OF COUNSEL

      Michael A. Richman for appellants.

      Andrew W. Tully, Jr., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (90 AD2d 479), insofar as they relate to the causes of action against John A. Porco.

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


author: Fuchsberg, J.

text:
    Joseph Loschiavo et al., Appellants, v Port Authority of New York and New Jersey, Defendant, and National Airlines, Inc., Respondent.
    Argued February 11, 1983;
    decided March 24, 1983

      APPEARANCES OF COUNSEL

      John Anthony Bonina for appellants.

      Thomas E. Mehrtens and John M. Downing for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the majority at the Appellate Division that the trial court, in excluding the testimony offered by plaintiff, properly applied this State’s current hearsay rule. Pursuant to this rule, the hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority (Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1, 8; Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203, 206). We decline plaintiff’s invitation to change this well-settled, albeit widely criticized rule of evidence but note, in this connection, that a proposal for modification of the hearsay rule in this State is now before the Legislature (A Code of Evidence for the State of New York, rule 803, subd [b], par [4] [submitted to the 1982 session of the Legislature]).

Fuchsberg, J.

(dissenting). I would reverse, essentially for the reasons stated by Justice Leon D. Lazer in the dissenting opinion he crafted for Justice David T. Gibbons and himself at the Appellate Division. In doing so, I also observe that the majority at the Appellate Division took the pains to note that it was constrained by the prior pronouncements of our court.

At stake is the rule rendering an agent’s out-of-court statement inadmissible against his or her principal unless it is made pursuant to the latter’s authorization to speak. This though the declaration contains the following indices of reliability: (1) the declaration purportedly was made on personal knowledge, (2) the declaration was made during the course of the agency or employment of the declarant and (3) the declaration was with regard to a matter within the scope of the declarant’s employment. Well-nigh every other court of last resort and nearly every standard-setting body which has had occasion to evaluate the matter has now concluded, in my view soundly, that a declaration so reinforced constitutes a valid exception to the rule against hearsay (see, e.g., the authorities cited at 86 AD2d 624, at p 626).

I therefore find it troubling that, ignoring this chorus of condemnation, we defer reform of a Judge-created “widely criticized rule of evidence” to the Legislature, whenever and however that body may choose to act, in the interim dooming an incalculable number of cases to an unjust result. As Judge Fuld, in words which could have been written for this case, stated for a unanimous court some 20 years ago, “The common law of evidence is constantly being refashioned by the courts of this and other jurisdictions to meet the demands of modern litigation. Exceptions to the hearsay rules are being broadened and created where necessary * * * Absent some strong public policy or a clear act of pre-emption by the Legislature, rules of evidence should be fashioned to further, not frustrate, the truth-finding function of the courts in civil cases” (Fleury v Edwards, 14 NY2d 334, 341). A decade later, we again unanimously indorsed this declaration of policy (Matter of Brown v Ristich, 36 NY2d 183, 190). There is no reason to depart from it now.

Finally, I suggest that stare decisis is no obstacle to such self-correction. Apt is Holmes’ classical admonition against a rule which persists for no better reasons than that “it was laid down in the time of Henry IV”.

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

Order affirmed, without costs, in a memorandum.

       Holmes, The Path of the Law, reprinted in Jurisprudence in Action (Baker, Voorhis & Co., Inc., pp 275, 290).


text:
    In the Matter of Carol S. Wertheim, Individually and on Behalf of All Other Persons Similarly Situated, Appellant, v New York City Teachers’ Retirement System, Respondent.
    Decided March 24, 1983

      APPEARANCES OF COUNSEL
    A. Thomas Levin for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Irving Genn of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 514).

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


text:
    Lillian Greenberg, Respondent, v William Collins, Appellant.
    Submitted February 28, 1983;
    decided March 24, 1983
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the Court of Appeals does not have jurisdiction to entertain it and cross motion to dismiss appeal taken as of right granted and appeal dismissed, with costs, upon the ground that it does not lie (NY Const, art VI, § 3, subd b, par [7]; see 7 Weinstein-Korn-Miller, NY Civ Prac, pars 5602.03, 5602.16).


text:
    In the Matter of I. Janvey & Sons, Inc., Respondent, v County of Nassau et al., Respondents, and Halbro Control Industries, Inc., Appellant.
    Submitted February 14, 1983;
    decided March 24, 1983
   Motion to dismiss appeal denied.


text:
    In the Matter of the M. Children. Charles W. Bates, as Westchester County Commissioner of Social Services, Respondent; Linda M., Appellant.
    Submitted February 14, 1983;
    decided March 24, 1983
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved and, therefore, no appeal lies as of right from the Appellate Division order of unanimous affirmance.


text:
    In the Matter of Pamela Marland, Respondent, v Gordon Ambach, as Commissioner of Education of the State of New York, Respondent, and Board of Education of the City School District of New York et al., Appellants.
    Submitted February 7, 1983;
    decided March 24, 1983
   Motion to dismiss appeal denied.


text:
    Frank T. Maser, Respondent, v County of Onondaga, Appellant.
    Submitted March 7, 1983;
    decided March 24, 1983
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 38, pp 156-157).


text:
    In the Matter of Michael J. Golden et al., Respondents, v James H. Tully, Jr., et al., Constituting the New York State Tax Commission, Appellants.
    Argued February 7, 1983;
    decided March 29, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow and Peter H. Schiff of counsel), for appellants.

      Michael J. Golden and Carol A. Golden, respondents pro se.

   OPINION OF THE COURT

Memorandum.

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

In response to the taxpayers’ demand for a bill of particulars, it was admitted that petitioners’ nonresidence in “New York State was determinative of the disallowance of said moving expenses.” No other rationale was then proffered to justify the discrepancy in treating residents and nonresidents. Consequently, it must be concluded that, in the present matter, respondent’s determination unconstitutionally discriminated against the nonresident taxpayers (see US Const, art IV, § 2, cl 1).

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

Judgment affirmed, with costs, in a memorandum.


text:
    In the Matter of Superior Care, Inc., Appellant, v New York State Department of Social Services, Respondent.
    Decided March 29, 1983

      APPEARANCES OF COUNSEL

      Gregory Stamm for appellant.

      Robert Abrams, Attorney-General (Alan W. Rubenstein of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs (Clove Lakes Nursing Home v Whalen, 45 NY2d 873). In addition, appellant has failed to demonstrate any violation of the applicable regulation (18 NYCRR 515.7).

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


text:
    Gottlieb Contracting, Inc., Appellant, v City of New York, Respondent.
    Argued January 6, 1983;
    decided March 29, 1983

      APPEARANCES OF COUNSEL

      Sheldon Feinstein for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (James P. Griffin and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (86 AD2d 588).

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


text:
    Barbara De Angelis, Individually and as Natural Guardian of Deirdre De Angelis and Others, Infants, Appellant, v Lutheran Medical Center et al., Respondents, et al., Defendants. M. Philip Amodeo, as Administrator of the Estate of Yves Le Henaff, Deceased, et al., Appellants, v Thomas N. Precious et al., Respondents.
    Argued February 8, 1983;
    decided March 29, 1983

      APPEARANCES OF COUNSEL

      Keith V. La Rose, William J. Stutman and Donald D. Brown, Jr., for appellants.

      Roger P. McTiernan, Frank E. Maher and Katherine Hargas for Lutheran Medical Center and another, respondents.

      B. Jennifer Jaffee and Steven B. Prystowsky for Thomas N. Precious and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each of these appeals should be affirmed, with costs.

In each case, a child seeks recovery in a derivative action for loss of consortium against an alleged tort-feasor who inflicted disabling injuries on one of the child’s parents. Such actions, however real the loss incurred, were not recognized at common law and we find no reason to recognize such a right now. In particular, the existence of the right of a husband or wife, in view of the nature of the marital relation, to bring an action derived from injuries to his or her spouse, to whatever extent it may be said to be analogous, does not warrant extending this right to a child and certainly not on the equal protection grounds asserted by the appellants.

Duty is essentially a legal term by which we express our conclusion that there can be liability (see, generally, Green, The Duty Problem in Negligence Cases, 28 Col L Rev 1014). It tells us whether the risk to which one person exposes another is within the protection of the law. In fixing the bounds of that duty, not only logic and science, but policy play an important role (Becker v Schwartz, 46 NY2d 401, 408; Ventricelli v Kinney System Rent A Car, 45 NY2d 950; Pagan v Goldberger, 51 AD2d 508, 510; Ortiz v Kinoshita & Co., 30 AD2d 334, 336-337; Prosser, Torts [4th ed], § 42, pp 244-249).

A line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit. It is always tempting, especially when symmetry and sympathy would so seem to be best served, to impose new duties, and, concomitantly, liabilities, regardless of the economic and social burden. But, absent legislative intervention, the fixing of the “orbit” of duty, as here, in the end is the responsibility of the courts (see Palsgraf v Long Is. R. R. Co., 248 NY 339, 343, 345).

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

In each case: Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Anthony B. Butler, Also Known as Philip Johnson, Respondent.
    Decided March 29, 1983
    APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (David M. Berck of counsel), for appellant.

      Russell C. Morea for respondent.
   OPINION of the court

Memorandum.

The appeal should be dismissed. Although the order of the Appellate Division recites that its determination was “on the law”, a review of that court’s opinion indicates that its disposition was predicated, at least in part, upon factual findings as to” when the arrest occurred and whether it was supported by probable cause. Since the determination 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, subd 2, par [a]), this appeal does not lie (People v Amill, 58 NY2d 967; People v McNally, 58 NY2d 1029).

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed in a memorandum.


author: Simons, J.

text:
    In the Matter of Robert M. Morgenthau, as District Attorney of the County of New York, Appellant, v Benjamin Altman, a Justice of the Supreme Court, New York County, et al., Respondents.
    Argued February 7, 1983;
    decided March 29, 1983

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (William J. Comiskey and Robert M. Fitter of counsel), for appellant pro se.

      Ivar Goldart, Caesar D. Cirigliano, Janice Taylor and Michael Alperstein for Vincent Futia, respondent.

      Robert Abrams, Attorney-General (Jeffrey I. Slonim and Peter H. Schiff of counsel), for Benjamin Altman, a Justice of the Supreme Court, respondent.
   OPINION OF THE COURT

Memorandum.

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

Prohibition is an extraordinary remedy. Though available to prevent a court from exceeding its authorized powers, the excess must be one which goes to “the very authority or power and, thus, jurisdiction of the officer, not to a mere mistake or ‘an error in procedure or substantive law’ ” (Matter of Dondi v Jones, 40 NY2d 8, 15; accord Matter of Steingut v Gold, 42 NY2d 311, 315; La Rocca v Lane, 37 NY2d 575, 579; Matter of State of New York v King, 36 NY2d 59, 64).

The order in which witnesses are presented before the Grand Jury is a matter of procedure, within the supervisory jurisdiction of the court, who, together with the District Attorney, is a “legal advisor” of the Grand Jury (CPL 190.25, subd 6). In Matter of Proskin v County Ct. of Albany County (30 NY2d 15), we upheld the prohibition of an order directing disclosure of the entire transcript of a Grand Jury investigation and in La Rocca v Lane (37 NY2d 575, 581, supra) pointed to Proskin as a good example of the “gross, unprecedented, and even suspect as to motivation, direction” which, though procedural, was properly controllable by the writ. The instant order requiring that the People’s witnesses be presented to the Grand Jury before the person about to be charged appears pursuant to his own request pursuant to CPL 190.50 (subd 5, par [a]) cannot be so characterized (Matter of Gold v Gartenstein, 54 NY2d 627; Matter of Hennessy v Gorman, 58 NY2d 806). The writ was, therefore, properly denied.

Simons, J.

(dissenting). Respondent Futia, after demanding an opportunity to testify before the Grand Jury investigating his conduct (see CPL 190.50, subd 5, par [a]), obtained an order from respondent Justice Altman requiring petitioner, the District Attorney of New York County, to establish a prima facie case before he testified. The alleged reason for that mandate was to permit the Grand Jury to evaluate Futia’s testimony after hearing the evidence against him.

The District Attorney challenges the jurisdictional predicate for that order in this prohibition proceeding. The majority have determined that the writ should be denied. They hold (p 1059) that “[t]he order in which witnesses are presented by the Grand Jury is * * * within the supervisory jurisdiction of the court”. This court has previously stated, however, that it is not. Thus, it said in People v Sexton (187 NY 495, 513-514): “A grand jury, although for some purpose a part of the court in connection with which it is convened, is in some aspects a separate and independent tribunal, free from the restraint of the court, and at liberty to decide upon its own methods of procedure in so far as they are not controlled by statute or immemorial usage having the force of law. One of the attributes and powers of this independent existence is to decide when and in what order witnesses shall be called, and, to some extent, who shall be called. For all the ordinary purposes of procuring evidence a grand jury is a distinct body clothed with authority to conduct the examination of witnesses in any way that does not conflict with established legal rules. The court has no general control over witnesses summoned before a grand jury except to punish them for contumacy or contempt” (emphasis added).

This principle of Grand Jury independence stated in Sexton has been reaffirmed repeatedly (see Matter of Keenan v Gigante, 47 NY2d 160,169, cert den 444 US 887; People v Di Falco, 44 NY2d 482, 486-487; Matter of Seidenberg v County Ct. of County of Rockland, 34 NY2d 499, 509; People v Stern, 3 NY2d 658, 662-663; People v Ryback, 3 NY2d 467; Matter of Nigrone v Murtagh, 46 AD2d 343, 350, affd 36 NY2d 421; see United States v Calandra, 414 US 338, 343; Branzburg v Hayes, 408 US 665, 669; see, also, CPL 190.30, subds 2, 3, 5, 6; and 190.50, subds 2, 3). In light of these holdings, respondent Altman’s ruling is not only manifest error but in my judgment an unwarranted assumption of jurisdiction which may be corrected in this article 78 prohibition proceeding (see Matter of Steingut v Gold, 42 NY2d 311, 315; Matter of Dondi v Jones, 40 NY2d 8, 13; Matter of State of New York v King, 36 NY2d 59, 62; Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, 18).

The issue, in its broadest aspect, involves the separation of powers. The Grand Jury acting in conjunction with the District Attorney is charged with the responsibility of seeing that the laws are enforced (CPL 190.05,190.60) and in doing so, it performs a governmental function that is executive in nature, not judicial. The concept is not mere formalism. This grant of power and the independence of the Grand Jury to exercise it has been insured by the New York Constitution which mandates that the Grand Jury’s power shall never be suspended or impaired by law (NY Const, art I, § 6). True enough, the courts historically have harbored some apprehension over the power of prosecutors and they have exercised a general and largely undefined supervisory power over the actions of the Grand Jury (see, generally, as to the development of Grand Juries in England and the United States, 2 Pollack and Maitland, The History of English Law [2d ed, 1909], pp 622-639; 8 Wigmore, Evidence [McNaughton Rev, 1961], § 2360; Note, The Grand Jury as an Investigatory Body, 74 Harv L Rev 590). Thus, the Grand Jury has been considered an “arm of the court” when necessary to enable the court to prevent unfairness (see People v Ianniello, 21 NY2d 418, 424, cert den 393 US 827 [to permit a witness to consult with his lawyer outside the jury room]; see CPL 190.52). More importantly, and understandably, the courts will also intercede to aid the Grand Jury in pursuing its investigation, typically by implementing the Grand Jury’s contempt powers (see Matter of Spector v Allen, 281 NY 251). Indeed, the present statute recognizes a degree of supervision by the court (see CPL 190.05). But it has never been contended to my knowledge that the court has any general supervisory power over the procedures used by the Grand Jury to receive and evaluate evidence. Certainly nothing in the ' Constitution or CPL article 190 confers such power on the courts and the decisions cited above forcefully disclaim it. The majority cite the court’s statutory power to act with, the District Attorney as legal advisor to the Grand Jury (CPL 190.25, subd 6), but the Legislature could hardly have intended that amorphous grant of authority to change the traditional division of powers established by a long line of decisions and insulated from impairment by the Constitution.

That is the depth of respondents’ error in this case. They are attempting to extend these undefined supervisory powers, not to aid the Grand Jury or to control some fundamental unfairness in the Grand Jury’s deliberations, but to interfere with the well-established investigative and deliberative procedures by which it has always done its work. They would recast the very nature of that body and in the name of “fairness” make the inquiry a quasi-adversarial and quasi-adjudicative process, something that it is not and never was intended to be. In doing so, the court has usurped powers reserved to the Grand Jury and the District Attorney by common law and statute (CPL 190.50, subd 5, par [b]) and assumed jurisdiction it does not have, thus “impairing” the powers of the Grand Jury contrary to the constitutional mandate (see Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, supra).

Prohibition lies and in the exercise of discretion we should grant the writ. This error did not happen in the course of a trial, in which case it would be subject to appeal and review, but outside the context of a criminal prosecution. The court had no proceeding before it and, absent collateral attack, the order will never be subject to correction. Moreover, the interference is serious, for the details and the course of the Grand Jury’s investigation are not within the court’s knowledge. The District Attorney contends the order may frustrate the investigation, immunize culpable witnesses or prevent him from using other available or necessary evidence. But of critical importance, the statutory scheme is intended to insure that the Grand Jury shall exercise broad discretion and proceed about its tasks with as little interference or delay as possible (see, e.g., CPL 190.30, subds 2, 3, 5, 6). Other means for checking excesses and for dismissing indictments unsupported by sufficient evidence are available (see CPL 190.75). Interlocutory applications to restrict Grand Jury action, such as this, merely delay and frustrate the Grand Jury’s work. Thus, our correction of the court’s error in this case will not foster delay in criminal matters by encouraging endless collateral proceedings. It will expedite Grand Jury proceedings by delimiting the boundaries of the court’s power and eliminating real or fancied evidentiary or procedural objections to Grand Jury proceedings in the future.

Accordingly, I would reverse the judgment of the Appellate Division and grant the writ.

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

Judgment affirmed, without costs, in a memorandum.

       Out of an excess of caution we note the obvious. We do not reach, and therefore do not pass upon, the merits of the order in question (Matter of Gold v Gartenstein, supra, at p 629).