text:
    Charles Jackson, Appellant, v State of New York, Respondent.
    (Claim No. 59594.)
    Submitted February 22, 1982;
    decided March 25, 1982
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order denying vacation of the judgment, dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution; motion otherwise denied.


source: Caselaw Access Project

license: Public Domain

text:
    Nassau Insurance Company, Appellant, v Susan Riley et al., Respondents.
    Submitted February 15, 1982;
    decided March 25, 1982
   Motion for leave to appeal dismissed as moot.


text:
    Eleanor Nesbitt, Appellant, v New York City Conciliation and Appeals Board et al., Respondents. Barbara H. Eaton, Appellant, v New York City Conciliation and Appeals Board et al., Respondents.
    Submitted March 22, 1982;
    decided March 25, 1982
   Motion for reargument of motion to intervene and for a stay denied, with $20 costs and necessary reproduction disbursements. Motion for clarification or modification of stay denied. [See 55 NY2d 1035.]


text:
    Norden Restaurant Corporation, Appellant-Respondent, v Sons of the Revolution in the State of New York, Inc., Respondent-Appellant.
    Submitted March 15, 1982;
    decided March 25, 1982
   On the court’s own motion, appeal and cross appeal dismissed, without costs, upon the ground that no direct appeal lies to the Court of Appeals. Motion for a stay and cross motion to expedite the appeal dismissed as academic. [See 51 NY2d 518.]


text:
    Amy K. Quinn, Individually and as Executrix of John J. Quinn, Deceased, et al., Appellants-Respondents, v Stuart Lakes Club, Inc., et al., Respondents-Appellants.
    Submitted February 8, 1982;
    decided March 25, 1982
   Motion to dismiss so much of defendants’ cross appeal as is taken from that portion of the Appellate Division order which modified the Supreme Court judgment to declare article 9 of the corporate by-laws ineffective and affirmed the judgment insofar as it imposed costs and disbursements, denied. On the court’s own motion, plaintiffs’ appeal taken pursuant to CPLR 5601 (subd [d]) dismissed, without costs, upon the ground that the Appellate Division order, entered July 13, 1978, sought to be brought up for review, does not “necessarily affect” the final judgment as required by CPLR 5601 (subd [d]).


text:
    In the Matter of the Estate of Jay B. Rappaport, Deceased. Monroe Chapin, Appellant; Alfred D. Rappaport, Respondent.
    Decided March 25, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 43, subd [d]).


text:
    In the Matter of Benjamin S., Respondent. Edward J. Kuriansky, as Deputy Attorney-General, Appellant.
    Submitted March 15, 1982;
    decided March 25, 1982
   Motion for reargument denied. Motion to amend remittitur granted. Remittitur recalled and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Whether petitioner’s Federal constitutional rights are violated by the requirement that, once a record is made of the terms of a plea bargaining agreement, all promises made to the pleading defendant must be made a part of that record before they will be enforced. [See 55 NY2d 116.]


text:
    Schaffer Stores Company, Inc., Respondent, v Grand Union Company, Appellant.
    Decided March 25, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved; absent such a question or a grant by the Appellate Division of leave to appeal the Court of Appeals does not have jurisdiction to entertain the appeal (NY Const, art VI, § 3, subd b, par [7]).


text:
    The People of the State of New York, Appellant, v Maurice Williams, Respondent.
    Submitted February 22, 1982;
    decided March 25, 1982
   Motion to dismiss appeal denied.


text:
    Selma G. Feinstein, Appellant, v Chemical Bank, Respondent, et al., Defendant. (And a Third-Party Action.)
    Decided March 30, 1982

      APPEARANCES OF COUNSEL

      Alexander A. Kolben for appellant.

      Robert T. Stephenson and John B. Wynne 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 [b]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (84 AD2d 514).

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


text:
    Constantina Fiederlein, Individually and as Administratrix of the Estate of William Fiederlein, Deceased, Appellant, v New York City Health and Hospitals Corporation, Respondent.
    Argued February 8, 1982;
    decided March 30, 1982

      APPEARANCES OF COUNSEL

      Robert G. Harley for appellant.

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

Memorandum.

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

The evidence was insufficient to form the basis for a jury award of damages for conscious pain and suffering. Mere conjecture, surmise or speculation is not enough to sustain a claim for damages. There was no direct proof of the cause of the decedent’s death and, more importantly, there was no proof of conscious pain and suffering in connection with that death. Moreover, we find the record to be insufficient to support a finding that decedent experienced increased pain while at the hospital as a proximate result of the treatment which he received.

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

Order affirmed, with costs, in a memorandum.


text:
    Patricia Norris, Appellant, v Robert Norris, Respondent.
    Decided March 30, 1982

      APPEARANCES OF COUNSEL

      Howard S. Lipman for appellant.

      Robert D. Kolken 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 [b]), order reversed, with costs, for the reasons stated in the dissenting memorandum of Justice Richard D. Simons at the Appellate Division, and the matter remitted to Supreme Court, Erie County, for a new hearing.

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


text:
    Gordon Beh, Appellant, v State of New York, Respondent.
    (Claim No. 60990.)
    Argued February 18, 1982;
    decided March 30, 1982

      APPEARANCES OF COUNSEL

      Irving Pheterson and Patricia O’Toole Vazzana for appellant.

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

Memorandum.

The order of the Appellate Division, insofar as appealed from, reversed, with costs, and the judgment of the Court of Claims should be reinstated, for the reasons stated in the dissenting memorandum at the Appellate Division.

The trial court “by necessary implication from its award of consequential damages” found the loss of direct access rendered the property unsuitable for its highest and best use (Priestly v State of New York, 23 NY2d 152, 155).

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Jasen dissents and votes to affirm for reasons stated in the memorandum of the Appellate Division (81 AD2d 744).

Order, insofar as appealed from, reversed, with costs, and the judgment of the Court of Claims reinstated in a memorandum.


text:
    Roy F. Dieter, Respondent, v Ruth L. Dieter, Appellant.
    Decided March 30, 1982

      APPEARANCES OF COUNSEL

      Howard F. Crossley for appellant.

      James I. Spandau 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 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


author: Jasen and Meyer, JJ.

text:
    Bertha M. Herrington, Appellant, v Paul N. Herrington, Respondent.
    Argued February 18, 1982;
    March 30, 1982

      APPEARANCES OF COUNSEL

      Gerard Quinn for appellant.

      James J. Tarantino, Jr., for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (81 AD2d 679).

Concur: Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Fuchsberg. Judges Jasen and Meyer concur in result in a concurring memorandum.

Jasen and Meyer, JJ.

(concurring). While we concur in the result we do so only because the papers before the court contain nothing to support the statement made in appellant’s brief that appellant wife was represented at the time the separation agreement was negotiated by the attorney now representing the respondent husband. If in fact he represented both husband and wife, the case may well be one to which Christian v Christian (42 NY2d 63) would apply. As the Appellate Division, Second Department, stated in Bartlett v Bartlett (84 AD2d 800), “in such a situation, an inference of overreaching on the part of the party who is the prime beneficiary of the assistance of the attorney may be drawn”. On the record before the court that issue cannot be reached.

Order affirmed, etc.


text:
    In the Matter of the Arbitration between James J. Dunseith et al., Respondents, and Paul L. Travia, Jr., et al., Appellants.
    Decided March 30, 1982

      APPEARANCES OF COUNSEL

      Donald G. Hausman for appellants.

      Michael B. Evanoff and James W. Harbison for James J. Dunseith and others, respondents.

      Gandolfo V. Di Blasi for Bache Halsey Stuart Shields, Inc., 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 [b]), order reversed, with costs, and judgment and order of Special Term (1) granting a request to compel arbitration, and (2) denying a motion to stay arbitration reinstated. Whichever version of the NASD Code of Arbitration Procedure applies to this dispute, under the agreement of the parties, it is for the arbitrators, rather than the courts, to determine whether a particular dispute is arbitrable (see Matter of MPG Capital u Nick, 56 NY2d 515).

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


text:
    The People of the State of New York, Respondent, v Kenneth Mobley, Appellant. The People of the State of New York, Respondent, v Michael Blackwell, Appellant.
    Argued February 10, 1982;
    decided March 30, 1982

      APPEARANCES OF COUNSEL

      Allen E. Burns and William E. Hellerstein for Kenneth Mobley, appellant.

      Stewart E. Sterk for Michael Blackwell, appellant.

      Mario Merola, District Attorney (Alexandra Valicenti and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

After a jury trial, defendants were convicted of robbery in the first degree in connection with the beating and robbing of a man on a Bronx street. Defendant Blackwell was also convicted of criminal possession of a weapon in the second degree and reckless endangerment in the first degree.

Defendants argue that the trial court erred in admitting certain testimony by three police officers. The officers testified, over objection, that the victim pointed to defendants when he confronted them shortly after the robbery. There is no question that the testimony of the officers improperly bolstered the victim’s testimony. As such, it should have been excluded (see People v Trowbridge, 305 NY 471). That the officers described the victim’s gestures, rather than his oral statements, is immaterial.

The error in admitting the officers’ testimony, however, must be considered harmless. The standard of harmlessness in a Trowbridge error case is whether “the evidence of identity is so strong that there is no substantial issue on the point” (People v Malloy, 22 NY2d 559, 567; People v Caserta, 19 NY2d 18, 21), sometimes expressed as whether the evidence of identification is “clear and strong” (People v Johnson, 32 NY2d 814, 816; People v Milburn, 19 NY2d 910, 911).

Although the evidence in the instant case was largely circumstantial, it confirms the reliability of the victim’s identification. The two defendants matched the general physical description of the robbers given by an eyewitness — one tall, the other short and heavyset. The defendants were apprehended in an apartment in the same building where the two perpetrators were seen to have fled, and present in the apartment was a third man whom the victim also identified as having been in defendants’ company moments before they accosted and robbed him. The owner of the apartment testified that defendants and the third man had left the apartment for a one-half hour period, which corresponded precisely with the time of the robbery’s occurrence, and that they had returned to the apartment with money that they then gave to her for the purchase of liquor. Also, alongside of one of the defendants, who was found hiding under a bed in the apartment, was a gun that matched in size, shape and color the weapon wielded in the crime. When these facts are considered together with the victim’s opportunity to observe during the robbery and his prior sightings of one of the defendants, as well as the unobjected-to testimony concerning the victim’s gestures when confronted after the robbery with the defendants, the evidence of identification and of guilt is not only clear and strong, it is overwhelming.

Finally, those of defendants’ other contentions that have been preserved are without merit.

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

In each case: Order affirmed in a memorandum.


text:
    In the Matter of Sovereign Apartments, Inc., et al., Respondents, v New York City Conciliation and Appeals Board, Respondent; Bernard Sennet, Individually and on Behalf of Other Tenants of Sovereign Apartments, Inc., Similarly Situated, Intervenor-Respondent, and Meyers Parking System, Inc., Appellant.
    Submitted February 11, 1982;
    decided March 30, 1982

      APPEARANCES OF COUNSEL

      Jay G. Strum for appellant.

      Cullen S. McVoy and Ellis S. Franke for New York City Conciliation and Appeals Board, respondent.

      Eugene J. Morris and Kenneth M. Block for Bernard Sennet, intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

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

It cannot be said that appellant Meyers Parking System, Inc., was improperly joined in the proceeding commenced by petitioner Sovereign Apartments, Inc., to challenge a New York City Conciliation and Appeals Board determination that the parking garage service provided at Sovereign was a required service under the Rent Stabilization Law and Code for which rents had been improperly increased. The board order directed the landlord to roll back the garage rents and to arrange for refunds and authorized the tenants to deduct any unrefunded overcharges from the next garage rent. As lessee, Meyers would be subject to the rent stabilization laws to the same extent as the landlord (cf. Bank of N. Y., Albany v Hirschfeld, 37 NY2d 501) and it could have challenged the determination on any ground in the article 78 proceeding commenced for that purpose. Meyers does not dispute that it was fully aware of the pending board proceeding and has steadfastly refused to produce the lease under which it claims a right to have been formally served in the proceeding. Under the circumstances, neither joinder nor issuance of the permanent injunction was improper.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York ex rel. Julio Martinez, Appellant, v New York State Board of Parole et al., Respondents.
    Argued February 12, 1982;
    decided March 30, 1982

      APPEARANCES OF COUNSEL

      Steve Sandler, William E. Hellerstein and Roger Brazill for appellant.

      Robert Abrams, Attorney-General (Paul Jawin and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Relator’s final parole revocation hearing was adjourned three times, at least two of the continuances being at relator’s request. On the 81st day, the hearing was held in the absence of relator who was attending a criminal trial. The hearing officer noted the proximity of the 90-day limit (see Executive Law, § 259-i, subd 3, par [f], cl [i]) and determined to “proceed in absentia, subject to the inmate’s rights of cross-examination at some later date, if he so desires.” Relator’s parole was revoked. His petition for a writ of habeas corpus was granted to the extent of ordering a new hearing.

Relator argues that his right to due process was violated by his hearing in absentia and that, the 90-day period having expired, the only proper remedy is vacatur of the warrant. Inasmuch as there is no evidence of bad faith here by respondent, any shortcomings in the revocation hearing raise only a question of irregularity in the statutory procedures. Under the circumstances, there is no logical basis for holding that the warrant must be vacated merely because a new hearing could not be held within the 90-day limit. A new hearing adequately protects relator’s rights.

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

Order affirmed, without costs, in a memorandum.


text:
    American Theatre Press, Inc., Appellant, v Tax Commission of the State of New York et al., Respondents.
    Submitted March 22, 1982;
    decided March 30, 1982
   Motion to dismiss appeal from so much of the order of the Appellate Division as affirmed the September 3, 1981 order of Supreme Court, New York County, denying appellant’s motion to reargue granted and the appeal from that portion of the order dismissed, without costs, upon the ground that it does not lie. Motion to strike matter from the record on appeal, etc., denied.


text:
    Chautauqua Investment Company, Appellant, v Town of Chautauqua, Respondent.

      Submitted February 22, 1982;
    decided March 30, 1982
   Motion to dismiss the appeal denied.


text:
    Fern D. Dunn, Respondent, v John J. Dunn, Appellant.
    Decided March 30, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that (1) insofar as the Appellate Division order reverses the Supreme Court order granting defendant’s motion to dismiss the 1980 action, and denies the motion, it does not finally determine the action within the meaning of the Constitution, and (2) insofar as the Appellate Division order dismisses the 1976 action, it does not aggrieve defendant (CPLR 5511).


text:
    In the Matter of Laurence Gailband, Respondent, v Joseph J. Christian, as Chairman of the New York City Housing Authority, Appellant.
    Submitted March 22, 1982;
    decided March 30, 1982
   Motion to dismiss the appeal denied.


text:
    Stella Manolakos, Appellant, v Theodore Manolakos et al., Respondents.
    Submitted February 15, 1982;
    decided March 30, 1982
   Motion for leave to appeal dismissed for failure to demonstrate timeliness of the motion as required by rule 500.9 (a) (1) of the Rules of the Court of Appeals (22 NYCRR 500.9 [a] [1]).


text:
    Gail B. B. Martinez, Respondent-Appellant, v Michael B. Konczewski, Appellant-Respondent.
    Decided March 30, 1982
   Cross appeal dismissed, without costs, by the Court of Appeals 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 u Patron, 40 NY2d 582).


text:
    Rector, Church Wardens and Vestrymen of St. Bartholomew’s Church in the City of New York, Respondent, v Committee to Preserve St. Bartholomew’s Church, Inc., et al., Appellants.
    Submitted March 24, 1982;
    decided March 30, 1982
   Motion for a stay denied as unnecessary (CPLR 5519, subd [e]). Case set down for argument on May 11, 1982. Appellants’ papers on appeal are to be served and filed on or before April 13, and respondent’s on or before April 27, 1982.


text:
    The People of the State of New York, Appellant, v Carolyn Spector, Respondent.
    Submitted March 22, 1982;
    decided March 30, 1982
   Motion to dismiss the appeal granted and the appeal dismissed upon the ground that the determination of modification 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 * * * modification” (CPL 450.90, subd 2, par [a]).


text:
    In the Matter of the Claim of Chauncey E. Francis, Respondent. New York City Human Resources Administration, Respondent; Philip Ross, as Industrial Commissioner, Appellant.

      Argued February 15, 1982;
    decided April 1, 1982
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Frederick M. Paola of counsel), for appellant.

      J. Drew Yanno for claimant-respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Carolyn E. Demarest and Leonard Koerner of counsel), for New York City Human Resources Administration, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division with directions to remand to the Unemployment Insurance Appeal Board for determination of claimant’s eligibility pursuant to section 527 of the Labor Law, as directed by the board.

There is substantial evidence in the record to support the finding of the Unemployment Insurance Appeal Board that claimant was an alcoholic. Although no medical evidence was presented, there was documentary evidence that claimant had been intoxicated at work, that he suffered from “black-outs”, and that he had been hospitalized on several occasions and for a period of 28 days in one instance in connection with his alcoholism. Evaluation reports on him indicate that his employer considered him to be an alcoholic and attempted to enlist him in various self-help programs. While claimant did not admit, when he testified, that he was an alcoholic, he did admit that he drank every day and that he had need for counseling. We cannot say, on the basis of the record before us, that the failure to present medical evidence precluded the appeal board from finding that the claimant was an alcoholic.

The appeal board, having reached the conclusion that petitioner was an alcoholic, acted within its discretion in denominating his discharge to be the result of his illness, rather than his own misconduct. (Cf. Matter of James [Levine], 34 NY2d 491.)

Thus, while the claimant is not automatically barred from qualifying for unemployment insurance benefits, the matter must be remitted to the Appellate Division with directions to remand to the Unemployment Insurance Appeal Board for determination as to claimant’s “availability for, and capability of employment” pursuant to section 527 of the Labor Law.

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

Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to the Unemployment Insurance Appeal Board for further proceedings in accordance with the memorandum herein.


text:
    The People of the State of New York, Respondent, v Thomas Hogya, Appellant.

      Argued March 26, 1982;
    decided April 1, 1982

      APPEARANCES OF COUNSEL

      Lori Ehrlich and Brian Rappaport for appellant.

      John J. Santucci, District Attorney (William Schrager of counsel), for respondent.
   opinion of the court

Memorandum.

The appeal should be dismissed.

Although the order of the Appellate Division recites that the reversal 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 new factual finding concerning defendant’s intent to abandon his jacket. Because reversal was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]), this appeal does not lie.

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

Appeal dismissed in a memorandum.


text:
    Bruce J. Page, Sr., Respondent, v State of New York, Appellant.
    (Claim No. 59817.)
    Decided April 1, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus of counsel), for appellant.

      Michael A. Jacobs 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 [b]), judgment appealed from and order of the Appellate Division brought up for review affirmed, without costs, for reasons stated in the opinions by former Justice J. Clarence Herlihy and Presiding Justice A. Franklin Mahoney at the Appellate Division (73 AD2d 479).

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


text:
    In the Matter of Ernest J. Kight, Appellant, v Wyandanch Union Free School District (Wyandanch Public Schools) et al., Respondents.
    Decided April 1, 1982

      APPEARANCES OF COUNSEL

      Nicholas Vincent Campasano for appellant.

      Howard E. Pachman 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 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Dennis M. Silverman, as President of Local 810, International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America, et al., Respondents, v City of New York Commission on Human Rights et al., Appellants.
    Decided April 1, 1982

      APPEARANCES OF COUNSEL

      Alan Serrins for appellants.

      Robert M. Ziskin 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 [b]), order, insofar as appealed from, reversed, with costs, and the compensatory damage award of the New York City Commission on Human Rights reinstated. The evidence of pain, suffering and mental anguish produced in this case to prove compensatory damages was sufficient to support the commission’s determination on that issue (Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143).

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


text:
    In the Matter of Harold S. Goldberg, Appellant, v William Kroeger, as Acting Chairman of the Workers’ Compensation Board of the State of New York, Respondent.
    Decided April 1, 1982

      APPEARANCES OF COUNSEL

      Dudley Gaffin for appellant.

      Robert Abrams, Attorney-General (Morris N. Lissauer 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 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    The People of the State of New York, Appellant, v Eugene Grant, Respondent.
    Argued February 19, 1982;
    decided April 1, 1982
   Appeal dismissed upon the ground that the reversal at the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).

Judge Meyer taking no part.


text:
    In the Matter of Julius M. Gerzof, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted March 29, 1982;
    decided April 1, 1982
   Motion for leave to appeal and for a stay 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 within CPLR 5602 (subd [a], par 2).


text:
    Eliahu Lipkis, Respondent, v Mario Pikus et al., Appellants.
    Submitted March 22, 1982;
    decided April 1, 1982
   Motion for an extension of time within which to move for reargument denied. Motion for reargument dismissed as untimely. Motion for leave to appeal dismissed upon the ground that this court does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]; CPLR 5602, subd [b], pars 1, 2, cl [ii]). Motion for stay dismissed as academic. Twenty dollars costs and necessary reproduction disbursements payable to respondent.


text:
    The People of the State of New York, Respondent, v Herman Wilson, Appellant.
    Submitted March 29, 1982;
    decided April 1, 1982
   Motion for an extention of time and continuation of stay granted and stay continued pending determination of the appeal (CPL 460.60, subd 3).


text:
    The People of the State of New York, Respondent, v Myron Wright, Appellant.
    Argued February 19, 1982;
    decided April 6, 1982
    APPEARANCES OF COUNSEL

      Erica Horwitz and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant had agreed to enter a guilty plea to a charge of second degree burglary in full satisfaction of the indictment against him. The record indicates that the defendant understood that the sentence to be imposed was to run consecutively, as required by subdivision 2-a of section 70.25 of the Penal Law, to the time defendant owed on a previously imposed sentence. At the sentencing, however, the Judge mistakenly stated that the sentence imposed was to run concurrently with the prior sentence.

Some 12 months later, the clerk at Great Meadows Correctional Facility notified the District Attorney and the defense counsel of the error in sentencing. The District Attorney’s office brought this error to the court’s attention. The court then, stating it was acting sua sponte, resentenced the defendant to an indeterminate term of imprisonment of four to eight years to run consecutive to the time defendant owed on his prior conviction.

It was within the trial court’s inherent power to correct the error made at sentencing. (People v Minaya, 54 NY2d 360.) As stated in People v Minaya, this power “extends to a statement or even formal pronouncement made by a court which may create ‘apparent ambiguity’ but ‘which is, plainly, the result of some inadvertence on his [the Judge’s] part, and which our reason tells us is a mere mistake’” (People v Minaya, supra, at p 365, quoting Bohlen v Metropolitan El. Ry. Co., 121 NY 546, 550).

The record, in this case, clearly indicates that in sentencing the defendant to a concurrent sentence rather than to a consecutive sentence, the Trial Judge merely misspoke. Thus, it was within that court’s power to correct its own inadvertent error. The fact that this error was brought to the court’s attention by the District Attorney does not alter the fact that in resentencing the defendant, the court was exercising its own inherent powers.

Nor does CPL 440.40 affect the court’s inherent power to correct an invalid sentence. CPL 440.40 provides that: “At any time not more than one year after the entry of a judgment, the court in which it was entered may, upon motion of the people, set aside the sentence upon the ground that it was invalid as a matter of law.”

This statute was clearly intended as a companion to CPL 440.20, which allows the defendant to make a motion to set aside a sentence which is invalid as a matter of law, at any time after the entry of judgment. The one-year limitation in CPL 440.40 is designed to restrict the People’s ability to move to set aside an illegal sentence. This statute should not be read to place a similar restriction on the court’s inherent ability to correct its own errors. Contrasted with CPL 442.20, it is clear that CPL 440.40 is intended only as a limitation on the People with reference to an “invalid [sentence] as a matter of law” not imposed by mistake.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Kenneth D. Fox, Appellant.
    Argued February 19, 1982;
    decided April 6, 1982

      APPEARANCES OF COUNSEL

      John J. Janiec for appellant.

      Robert M. Morgenthau, District Attorney (William J. Comiskey and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress granted and the matter remitted to Supreme Court, New York County, for further proceedings on the indictment.

Defendant’s motion to suppress physical evidence seized from his apartment should have been granted. The only sworn testimony submitted in support of the warrant application was the affidavit of a transit police officer. This document does not contain facts sufficient to support the determination that probable cause existed to search defendant’s apartment for a quantity of stolen checks (see People v Nieves, 36 NY2d. 396). In addition, on the facts of this case, we disagree that the confidential informant’s identity was itself sufficient to establish reliability. Inasmuch as no other indicia of reliability appear in the affidavit, this deficiency presents an additional ground for concluding that the warrant was issued without the requisite probable cause.

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

Order reversed, etc.


text:
    Karmy R. Mina, Appellant, v Mary J. Mina, Respondent, and County of Monroe, Respondent.
    Argued March 30, 1982;
    decided April 6, 1982

      APPEARANCES OF COUNSEL

      Joan S. Kohout and Edward J. Nowak for appellant.

      John D. Doyle and Nira T. Kermisch for County of Monroe, respondent.

      James A. Connelly, II, for Mary J. Mina, respondent.
   OPINION OF THE COURT

Memorandum.

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

In the exercise of its discretion to deny appellant’s application for a transcript under CPLR 1102 the Appellate Division did not weigh any impermissible considerations. That court’s denial of the application did not constitute an abuse of discretion nor was it otherwise infected by error of law.

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

Order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York ex rel. Julius E. Gluch, Appellant, v Deborah Gluch, Respondent.
    Argued March 22, 1982;
    decided April 6, 1982

      APPEARANCES OF COUNSEL

      Lois McS. Webb for appellant.

      John F. Niles for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division reversed “on the law and on the facts”. Even if it were to be concluded that it was error to have reversed on the law (i.e., to have held that on no view of the record could acceptance of jurisdiction under the Uniform Child Jurisdiction Act [Domestic Relations Law, art 5-A] be sustained and accordingly that for Family Court to have done so was an abuse of discretion as a matter of law), nevertheless the Appellate Division also reversed on the facts. By this latter disposition the Appellate Division substituted its own exercise of discretion not to accept jurisdiction for the exercise of discretion by the Family Court to accept such jurisdiction. Inasmuch as we conclude that there was no abuse of discretion or other error of law by the Appellate Division with respect to this latter disposition our review is at an end.

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

Order affirmed, with costs, in a memorandum.


text:
    Carl Steigerwald, Respondent, v Dean Witter Reynolds, Inc., et al., Appellants.
    Decided April 6, 1982

      APPEARANCES OF COUNSEL

      Robert A. Small for appellants.

      S. Paul Battaglia 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 [b]), order affirmed, with costs. The application to the New York Stock Exchange (Form U-4) signed with a former employer does not bind plaintiff to arbitrate claims with respect to his subsequent alleged contract with defendants.

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


text:
    The People of the State of New York, Appellant, v Daniel M. Howe, Respondent.
    Decided April 6, 1982

      APPEARANCES OF COUNSEL

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando of counsel), for appellant.

      George T. Dunn 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 [b]), order reversed, judgment of conviction reinstated and case remitted to the Appellate Division, Fourth Department. That court may, in the exercise of its exclusive interests of justice review power, consider any other fact questions concerning the plea, if any (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]). By his plea of guilty defendant forfeited his claim to dismissal of the indictment pursuant to CPL 30.30 {People u Friscia, 51 NY2d 845). The Appellate Division determination that defendant reserved his CPL 30.30 claim is not supported by the record. We note that any attempt to do so would have been ineffectual (cf. People v Thomas, 74 AD2d 317, affd 53 NY2d 338).

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


text:
    In the Matter of Tilbury Fabrics, Inc., Respondent, v Stillwater, Inc., Appellant.
    Argued February 19, 1982;
    decided April 6, 1982

      APPEARANCES OF COUNSEL

      Harlan M. Lazarus and Lester A. Lazarus for appellant.

      Harry Shapiro for respondent.
   OPINION OF THE COURT

Memorandum.

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

Since it does not appear from this record that Stillwater raised the one-year contractual Statute of Limitations defense in a motion to stay arbitration or before the arbitrators, it was waived (CPLR 7502, subd [b]; 7503). In any event, since compliance with the contractual period of limitation, if it were raised, would have been a question for the arbitrators (Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 9, n 2), the point would fall to the rule that an error of law committed by the arbitrator is an insufficient basis to vacate an award (see Matter of Granite Worsted Mills [Aaronson Cowen, Ltd.], 25 NY2d 451, 454-455).

As to the argument that the counterclaims were so vaguely described that Stillwater was unable to ascertain the subject matter of the dispute, this issue has not been preserved. It simply was that the scope of the arbitration was limited to the three contracts which were the basis for the institution of the arbitration.

Finally, as to the assertion that the award left it uncertain whether Tilbury had been awarded consequential damages, suffice it to say that “the mere possibility” that such damages, award of which was expressly prohibited by the contract, indeed were included, is not enough to permit the award to be disturbed (Matter of Granite Worsted Mills [Aaronson Cowen, Ltd.], supra, at pp 455-456).

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

Order affirmed, with costs, in a memorandum.


text:
    Jack Harris et al., Appellants, v Shearson Hayden Stone, Inc., Respondent.
    Argued March 24, 1982;
    decided April 6, 1982

      APPEARANCES OF COUNSEL

      Samuel L. Newman and Leon S. Harris for appellants.

      Chester J. Straub and Francis J. Menton for respondent.
   opinion of the court

Order affirmed, with costs, for reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (82 AD2d 87).

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


text:
    In the Matter of Patrick Sargeant et al., Appellants, v Director, Brooklyn Developmental Center, Respondent.
    Decided April 6, 1982

      APPEARANCES OF COUNSEL

      Deborah C. Prosser for appellants.

      Robert Abrams, Attorney-General (Morton H. Meyer 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 [b]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Karen Kennedy, Respondent, v Carmen J. Macaluso, Appellant.
    Decided April 6, 1982

      . APPEARANCES OF COUNSEL

      William J. McClusky for appellant.

      Terrence J. Whelan 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 [b]), order affirmed, with costs. An attorney has no retaining lien on an executed but unfiled divorce decree (see Matter of Bergstrom & Co., 131 App Div 791; Matter of Reiss, 200 Misc 697) and may be compelled, via a CPLR article 78 proceeding in the nature of mandamus, to file such decree.

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


text:
    Tappan Motors, Inc., Appellant, v Volvo of America Corporation et al., Respondents.
    Submitted March 22, 1982;
    decided April 6, 1982
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizzalnds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of Ralph H. Hewlett et al., Appellants, v Herbert B. Evans, as Chief Administrative Judge of the Courts of the State of New York, Respondent, et al., Intervenor-Respondent.
    Argued March 30, 1982;
    decided April 6, 1982
   Appeal dismissed, without costs, upon the ground that the appellants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).

Chief Judge Cooke taking no part.


text:
    The People of the State of New York, Respondent, v Starkey Watson, Appellant. The People of the State of New York, Respondent, v Jeffrey Hamilton, Appellant.
    Argued February 19, 1982;
    decided April 7, 1982

      APPEARANCES OF COUNSEL

      Thomas P. Burke for Starkey Watson, appellant.

      Joy Phillips for Jeffrey Hamilton, appellant.

      Mario Merola, District Attorney (Alan D. Kaplan and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

The record reflects ample evidence to support defendants’ convictions for criminal possession of a weapon in the first degree. Defendants admitted living in the apartment where the hand grenade simulator was found, and both hung their clothes in the bedroom where the simulator was discovered. In addition, a photograph of defendant Hamilton was found in the same suitcase in which the grenade simulator was located. Therefore, it was not error for the courts below to have found that defendants exercised sufficient dominion and control to be deemed in possession of the simulator (see Penal Law, § 10.00, subd 8).

Those of defendants’ other contentions that are preserved are without merit.

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

In each case: Order affirmed in a memorandum.


text:
    Alexander Astromovich et al., Appellants, v Huntington School District No. 3 et al., Defendants, and Town of Huntington, Respondent.
    Decided April 7, 1982

      APPEARANCES OF COUNSEL

      Edward F. Hayes, III, for appellant.

      Mark J. Hanlon 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 [b]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (80 AD2d 628).

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


text:
    Dora Zuckerman, Appellant, v Jack Zuckerman, Respondent.
    Argued March 22, 1982;
    decided April 7, 1982

      APPEARANCES OF COUNSEL

      Barry M. Goldstein and Ralph Goldstein for appellant.

      Sheila Ginsberg Riesel for respondent.
   OPINION of the court

Order affirmed, with costs, and question certified answered in the affirmative (see Valladares v Valladares, 55 NY2d 388; and Tucker v Tucker, 55 NY2d 378).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer. Judges Fuchsberg and Meyer concur on constraint of Valladares v Valladares, 55 NY2d 388).


text:
    The People of the State of New York, Respondent, v Lincoln West, Appellant.
    Decided April 7, 1982

      APPEARANCES OF COUNSEL

      David Samel and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (Stephen D. Anderson 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 [b]), order reversed for the reasons stated in the dissenting memorandum by former Justice James D. Hopkins at the Appellate Division and the indictment dismissed (see People v Burwell, 53 NY2d 849).

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


text:
    In the Matter of the Arbitration between Civil Service Employees Association et al., Respondents, and Charles Soper, as Acting Director of Newark Developmental Center, et al., Appellants.
    Decided April 7, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Shirley Adelson Siegel of counsel), for Charles Soper, as Acting Director of Newark Developmental Center, appellant.

      Arlene Hughes, guardian ad litem, appellant.

      Michael J. Smith 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 [b]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division.

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


text:
    Norma Espy, Appellant, v Stephen W. Giorlando, Respondent, et al., Defendant.
    Decided April 7, 1982

      APPEARANCES OF COUNSEL

      Mitchell R. Schrage for appellant.

      Paul M. De Carlo 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 [b]), order affirmed, with costs. We see no reason to extend the clear and unambiguous meaning of CPLR 308 (subd 1).

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


text:
    The People of the State of New York, Respondent, v Vicente Alba, Appellant.
    Argued March 29, 1982;
    decided April 7, 1982
   Appeal dismissed upon the ground that the reversal at the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).


text:
    The People of the State of New York, Respondent, v John Fridell, Appellant.
    Argued April 1, 1982;
    decided April 7, 1982
   Appeal dismissed upon the ground that the reversal at the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).


text:
    Edgar Aronson, Appellant, v Salomon Brothers et al., Respondents.
    Submitted March 29, 1982;
    decided April 7, 1982
   Motion, insofar as it seeks leave to appeal from that portion of the order which pertains to defendants Salomon Brothers Holding Company and Oppenheim, Appel, Dixon & Company, dismissed upon the ground that said portion of the order does not finally determine the action within the meaning of the Constitution; motion otherwise denied with $20 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Cliffs Management Corporation et al., Appellants, v Great Eastern Management Corp. et al., Respondents.
    Decided April 7, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of the City of New York, Respondent, v Vernor Christiansen et al., Appellants, and Beacon City School District, Intervenor-Appellant.
    Decided April 7, 1982
   Appeals dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of Paul E. Thomas, Appellant, v New York Temporary State Commission on Regulation of Lobbying et al., Respondents.
    Argued March 23, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      Leonard Krouner and Ronald H. Sinzheimer for appellant.

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

Memorandum.

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

Given the nature of the attorney-client relationship and petitioner’s position as associate counsel to respondent New York State Temporary Commission on Regulation of Lobbying, it cannot be said that reports of petitioner’s active assistance to two public interest lobbying groups regulated by the commission were an improper basis for the commission’s decision to terminate petitioner’s employment (cf. Arnett v Kennedy, 416 US 134; Cooper v Johnson, 590 F2d 559). Nor was petitioner entitled to a due process hearing inasmuch as he never alleged that there was public dissemination of the reasons for his dismissal. Finally, petitioner, a nontenured employee, has demonstrated no procedural violation in the manner in which his employment was terminated.

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

Order affirmed, with costs, in a memorandum.


text:
    Michael A. Castaldi, Respondent, v Arthur Levitt, as Trustee of the New York State Employees’ Retirement System, Appellant, et al., Defendants.
    Argued March 22, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert S. Hammer and Shirley Adelson Siegel of counsel), for appellant.

      Michael A. Castaldi, pro se, and Nathan R. Sobel for Michael A. Castaldi, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and appellant’s motion for summary judgment dismissing the complaint granted.

Plaintiff is not entitled to credit under the New York State Employees’ Retirement System for the 8.96 years of service while he was an employee under the New York City Employees’ Retirement System. When plaintiff transferred from the city system to the State system on January 1, 1969, the Administrative Code of the City of New York did not permit a retired city employee, who thereafter reentered city employment, to combine his two periods of public service for purposes of determining pension benefits under the city system. (Administrative Code of City of New York, former § B3-47.0, amd L 1969, ch 735 [eff July 1, 1969].) Inasmuch as plaintiff was not entitled to any credit under the city system for the 8.96 years of service for the period from March, 1946 to December, 1959, he is not entitled under the State system to any credit for that period of service. (Retirement and Social Security Law, § 43, subds b, d.)

Nor does section 101 of the Retirement and Social Security Law serve to alter this result. That section applies only to a “retired member” returning to public service. (Retirement and Social Security Law, § 101, subd a.) For purposes of article 2 of the Retirement and Social Security Law, a “member” is defined as “[a]ny person included in the membership of the retirement system” (Retirement and Social Security Law, § 2, subd 16), and the “retirement system” is defined as the “New York state employees’ retirement system”. (Retirement and Social Security Law, § 2, subd 28.) In 1969, plaintiff was not a “retired member” of the State system returning to public service. Rather, he was a member of the city system transferring to the State system. As such, plaintiff cannot claim the benefits of subdivision a of section 101 of the Retirement and Social Security Law.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Ronald West, Appellant.
    Argued March 23, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      Maurice Brill for appellant.

      Elizabeth Holtzman, District Attorney (Holly L. Halper of counsel), for respondent.
   opinion of the court

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that reversible error occurred when the trial court permitted two witnesses to bolster the victim’s prior identification of the defendant. (See People v Trowbridge, 305 NY 471.) Although a general protest was raised against this testimony, defendant at no time objected to this testimony on the specific ground that it constituted improper bolstering. Thus, defendant has failed to preserve this issue for appellate review. (See People v Gonzalez, 55 NY2d 720, 722; see, also, People v Vidal, 26 NY2d 249, 254; Richardson, Evidence [10th ed], § 538.)

We have examined defendant’s remaining contentions and have found them to be without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Civil Service Employees Association . (Bernard Kramer), Appellant, v State of New York, Respondent.
    Argued March 24, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      George A. Roland for appellant.

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

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (80 AD2d 970).

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


text:
    Frank Dempsey, Respondent, v Paul Masto, Appellant.
    Argued March 25, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      Richard A. Insogna for appellant.

      Richard T. Aulisi for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (83 AD2d 725).

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


text:
    Schiavone Construction Company et al., Respondents, v Elgood Mayo Corp. et al., Defendants, and Timberland Equipment Limited, Formerly Known as Timberland Ellicott Limited, Appellant. (And a Third-Party Action.)
    Argued March 23, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      Raymond S. Jackson, Jr., and Peter D. Raymond for appellant.

      Eugene Schaffel for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and plaintiffs’ motion denied for the reasons stated in the dissenting opinion of Justice Samuel J. Silverman at the Appellate Division (81 AD2d 221, 227-234). Question certified answered in the negative.

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


text:
    The People of the State of New York, Respondent, v Lloyd Coleman, Appellant.
    Argued March 25, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      Barry S. Stendig and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (David H. Fromm and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, the denial of defendant’s motion to suppress vacated, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.

Defendant’s motion to suppress his confession was denied by Supreme Court on January 30, 1979, at least in major part on the authority of People v Morales (42 NY2d 129) which upheld the right of the police to detain a suspect on reasonable suspicion for a brief period of time for investigative questioning. On June 5, 1979, the Supreme Court of the United States announced its decision in Dunaway v New York (442 US 200) unequivocally disapproving investigative detention of suspects for custodial interrogation, thereby effectively eradicating the legal premise on which the suppression court had based its denial of defendant’s motion. On February 24, 1981 the Appellate Division affirmed, without opinion.

In the procedural posture in which this case reaches us no determination has been made by either court below as to whether the police officers had probable cause to take defendant into custody or whether, if they did not have probable cause and his detention was thus illegal, there were such attenuating circumstances as to establish that his subsequent confession was neither the product of his illegal arrest nor obtained in consequence of its exploitation. Neither of such factual determinations can be made as a matter of law on the record before us.

Accordingly, the order of the Appellate Division should be modified, the denial of defendant’s motion to suppress his confession vacated, and the case remitted for a new suppression hearing. If thereafter the motion is again denied, defendant’s conviction should stand and an amended judgment should be entered reflecting this disposition, any appellate review of which will be limited to the suppression ruling. On the other hand, if the motion to suppress is granted, defendant’s conviction should be vacated and the case continued for further proceedings on the indictment.

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

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


text:
    Syracuse Savings Bank et al., Appellants, v Town of DeWitt, Respondent.
    Argued March 23, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      Leonard C. Koldin and Benjamin D. Levine for appellants.

      Eric M. Alderman, Joseph W. Jerry and Bernard Samuels for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to respondent, to the extent of directing judgment in favor of defendant declaring that section 53-30 of the Town Code of the Town of DeWitt is constitutional insofar as it regulates commercial speech.

In this action seeking a declaration that the “sign ordinance” of the Town of DeWitt is unconstitutional, the Appellate Division affirmed Supreme Court’s dismissal of the complaint on the motion of defendant town for summary judgment. Inasmuch as plaintiffs tendered no evidentiary proof in admissible form there is no evidence before us as to the practical application of the ordinance or its prospective impact in the Town of DeWitt, and no showing of facts sufficient to require an evidentiary hearing as to issues of fact. Accordingly, on the record before us the sign ordinance can be considered only in the abstract without consideration of any impact on plaintiffs. From that very narrow perspective we perceive no error made by the courts below in upholding the constitutionality and validity of the ordinance against the challenges mounted by plaintiffs. We address only the principal contentions advanced by plaintiffs in our court.

At the threshold we observe that because plaintiffs, an extensive assemblage of business and commercial enterprises in the town, have shown no direct interest in noncommercial speech and no commercial interest in others who themselves have such an interest, they lack standing to raise any constitutional First Amendment argument of ov'erbreadth to challenge the ordinance to the extent that it regulates, or may be said to regulate, noncommercial speech.

With reference to the application of the ordinance to commercial speech, we cannot conclude that the near total proscription of freestanding signs or the regulation of on-building facade signs as to size and height does not constitute, on the face of the ordinance, a permissible constraint only as to location and manner (Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483; Modjeska Sign Studios v Berle, 43 NY2d 468). Nor is there any proof in the record that the four-year, nine-month period between the adoption of the ordinance and its effective date created an impermissibly short amortization period.

Inasmuch as this is a declaratory judgment action, the proper disposition on the granting of defendant’s motion for summary judgment should have been a declaration that the sign ordinance is constitutional rather than a dismissal of the complaint (Lanza v Wagner, 11 NY2d 317, 334).

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

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

      . The only exception, immaterial for present purposes, was the affidavit of the former town director of police with respect to conditions of vehicular and pedestrian traffic in the town and his opinion as to the impact of the sign ordinance thereon.
      Contrast, for instance, the extensive discovery leading to the comprehensive stipulation of facts on which the courts’ rulings were based in Metromedia, Inc. v City of San Diego (453 US 490), and the basis of which plaintiffs sought and obtained leave to appeal in this case.

      . We note the provision in the order of Supreme Court, affirmed at the Appellate Division and left standing by us, “that all rights are reserved to the individual plaintiffs to apply for appropriate administrative relief from the defendant upon a proper demonstration of need for such relief.”


author: Memorandum.

text:
    William E. J. Connor, Appellant, v Muriel Siebert, as Superintendent of the New York State Banking Department, Respondent. Harvey D. Young, Appellant, v Muriel Siebert, as Superintendent of the New York State Banking Department, Respondent.
    Argued March 25, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      William E.J. Connor, pro se, and Earl Schram, Jr., Marc I. Gold and Daniel J. Tuczinski for William E.J. Connor and another, appellants.

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

Memorandum.

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

It was not an abuse of discretion as a matter of law for the Appellate Division to decline to entertain these actions for declaratory judgments on the ground that “no justiciable controversy exists upon which [the court] can properly rule” (CPLR 3001; New York Public Interest Research Group v Carey, 42 NY2d 527).

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

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


text:
    Associated Mutual Insurance Company et al., Appellants, v Firemen’s Fund Insurance Company, Respondent.
    Argued March 23, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      Mae A. D’Agostino for appellants.

      Edward R. Broton for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (81 AD2d 949).

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


text:
    In the Matter of Jack Parker, Doing Business as Parman Co., Respondent, v Conciliation and Appeals Board of the City of New York, Appellant.
    Argued March 23, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      Cullen S. McVoy, William E. Rosen and Ellis S. Franke for appellant.

      Gary M. Rosenberg, Harold Zucker and Sherwin Belkin for respondent.
   OPINION OF THE COURT

Memorandum.

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

The indication in the board’s memorandum decision that it had adopted for city-wide application the standard which, with the consent of the landlord in that case, was invoked in Fresh Meadows Assoc. v New York City Conciliation & Appeals Bd. (88 Misc 2d 1003, affd 55 AD2d 559, affd 42 NY2d 925) has not been demonstrated by the landlord in this case to be untrue.

On the premise that the board has adopted such a citywide standard, we cannot conclude that this standard was arbitrary or capricious; nor has the landlord here established that there is such a substantial factual deviation with respect to his property as to preclude application of that standard.

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

Order reversed, with costs, and the judgment of Supreme Court, New York County, reinstated in a memorandum. Question certified answered in the negative.


text:
    In the Matter of Richard Corbisiero, Doing Business as Riccardo’s, Appellant, v New York State Tax Commission, Respondent.
    Argued March 22, 1982;
    decided May 4, 1982

      APPEARANCES OF COUNSEL

      Thomas J. Mackell for appellant.

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

Memorandum.

For reasons stated in its memorandum, the order of the Appellate Division should be affirmed, with costs. In so holding, however, we take occasion to point out that the only determination made by the State Tax Commission was that under section 1138 of the Tax Law issued on February 13, 1980, redetermining the amount of the taxes due. On August 1, 1980 the petitioner received a revised notice of assessment review from the audit division advising that, pursuant to section 1145, a statute discrete from section 1138, his application for rebate of penalties and interest had been granted. No change was made, however, with respect to the commission’s determination of tax liability.

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

Order affirmed, with costs, in a memorandum.


text:
    Board of Education of the City of New York, Respondent, v Norman Treyball, Defendant, and Norman Treyball, Jr., et al., Appellants.
    Submitted March 8, 1982;
    decided May 4, 1982
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. (CPLR 5601, subd [b], par 1.) Motion for permission to withdraw as counsel for appellants withdrawn.


text:
    Theodore A. Campbell, Appellant, v Alphonse E. D’Ambrose, as Acting Chairman of the City Civil Service Commission, et al., Respondents.
    Submitted April 5, 1982;
    decided May 4, 1982
   Motion to vacate the Court of Appeals order of dismissal dated January 19, 1982 denied. [See 55 NY2d 877.]


text:
    In the Matter of the Estate of Georges Kleefeld, Deceased. Denise Stork, Appellant; Joseph De Mul et al., Respondents.
    Submitted April 5, 1982;
    decided May 4, 1982
   Motion for reargument denied, with $20 costs and necessary reproduction disbursements. [See 55 NY2d 253.]

Judge Fuchsberg taking no part.


text:
    In the Matter of the Arbitration between Spanish Gardens Company et al., Appellants, and Local 32B-32J Service Employees International Union, AFL-CIO, et al., Respondents.
    Submitted April 5, 1982;
    decided May 4, 1982
   Motion for a stay granted to the extent that, while arbitration may proceed, the announcement of any decision or award is stayed pending determination of the appeal herein.


text:
    Joseph R. Tripoli, Individually and as a Shareholder of Onondaga Landfill Systems, Inc., et al., Respondents, v Dominic Tripoli et al., Appellants, et al., Defendant. Dominic Tripoli, Individually and on Behalf of Onondaga Landfill Systems, Inc., Appellant, v Joseph R. Tripoli et al., Respondents.
    Argued March 29, 1982;
    decided May 6, 1982

      APPEARANCES OF COUNSEL

      Richard W. Cook for appellants.

      J. Eric Charlton for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The propriety of the Appellate Division’s holding that it was error to have set aside the verdict as against the weight of the evidence is beyond the scope of this court’s power of review (Rochester Tel. Corp. v Green Is. Constr. Corp., 51 NY2d 788; Gutin v Mascali & Sons, 11 NY2d 97, 99; Cohen and Karger, Powers of the New York Court of Appeals, § 148, p 588).

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

Order affirmed, with costs, in a memorandum.


text:
    Little Antigone Theatres, Inc., Appellant, v City of New York et al., Respondents.
    Argued March 30, 1982;
    decided May 6, 1982

      APPEARANCES OF COUNSEL

      Herman Badillo and Kenneth G. Schwartz for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Irving Genn and Morris Einhorn of counsel), for respondents.
   OPINION of the court

Memorandum.

The order of the Appellate Division should be modified, with costs to appellant, by increasing the award to appellant by $10,000 and, as so modified, affirmed.

The Appellate Division agreed with the trial court that after demolition of the building, the value of the subject property, owned by Little Antigone Theatres, Inc., was $26,500. It also found that the value of the mortgagee’s lien on the property after the demolition was $10,000 and deducted this amount from the award to that party. Nonetheless, it reduced the award to the owner by the full $26,500 value of the property. Inasmuch as the value of Little Antigone’s interest in the property remaining after demolition was $16,500, by the Appellate Division’s own findings, its award should only have been reduced by that amount. The award to Little Antigone should therefore be increased by $10,000.

The determination of the Appellate Division in all other respects is fully supported by the weight of the evidence.

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

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


text:
    In the Matter of Gretchen Kloepfer, Appellant, v Commissioner of Education of the State of New York et al., Respondents. (And Another Proceeding.)
    Argued March 31, 1982;
    decided May 6, 1982

      APPEARANCES OF COUNSEL

      Bernard F. Ashe, Ira Paul Rubtchinsky and Gerard John De Wolf for appellant.

      Paul E. Sherman, Jr., Robert D. Stone and Jean M. Coonor Commissioner of Education of the State of New York, 'espondent.

      Adam D. Kaufman for Board of Education of the Roches,er City School District and another, respondents.

      Norman H. Gross for New York State School Boards Association, amicus curiae.

   OPINION OF THE COURT

Orders affirmed, with costs (Matter of Shurgin v Ambach, 56 NY2d 700).

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


text:
    In the Matter of New York State Teachers’ Retirement System, Respondent, v Robert Z. Srogi, as Commissioner of Assessment of the City of Syracuse, et al., Appellants.
    Decided May 6, 1982

      APPEARANCES OF COUNSEL

      David M. Garber, Corporation Counsel (Eleanor Theodore of counsel), for appellants.

      Harry L. Du Brin, Jr., and Karl E. Nisoff 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 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (84 AD2d 912).

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


text:
    The People of the State of New York, Respondent, v Larry Wilson, Appellant.
    Argued March 26, 1982;
    decided May 6, 1982

      APPEARANCES OF COUNSEL

      David H. Shapiro for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

After defendant had been booked and processed at the New York County Criminal Courts Building, the arresting officers appeared at the early case assessment bureau for the purpose of signing a complaint. No complaint had yet been drawn and Assistant District Attorney Mullady on duty at the bureau (which had been created through a Federal grant to evaluate felony and misdemeanor cases prior to their submission to the Criminal Court for arraignment) asked the officers to bring defendant to him. When defendant was produced, Mullady identified himself and proceeded to give defendant his constitutional preinterrogation warnings. Defendant waived his rights and agreed to answer Mullady’s questions. In the course of such questioning defendant made the inculpatory statement which he later sought to suppress.

Defendant does not contest the voluntariness of his waiver; instead he contends that in the circumstances his constitutional entitlement to counsel had become effective and accordingly that his inculpatory statement made in the absence of counsel should have been suppressed. We disagree. It is conceded that no accusatory instrument had been prepared or signed. Therefore, no criminal action had been commenced (CPL 1.20, subd 17). We cannot agree with defendant’s argument that because he was physically in police custody awaiting arraignment his right to counsel had attached, and no decision in our court so holds. There is nothing to suggest that the short delay in arraignment in this instance was designed to afford an opportunity for prearraignment interrogation or was otherwise calculated to deprive defendant of his right to counsel. To the contrary, the proof is that the delay in preparation of the complaint and thus in. arraignment was for the independent purpose of conforming to and implementing the terms of the Federal grant.

Defendant further contends that the showup identification made by the witness to the robbery when defendant was taken back to Nathan’s restaurant, the scene of the crime, should be suppressed on the ground that his return constituted an Illegal detention. This claim must be rejected in view of the affirmed finding of fact, for which there is support in the record, that defendant consented to accompany the officers back to the restaurant.

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

Order affirmed in a memorandum.


text:
    In the Matter of Noreen Levy, an Infant, by Her Mother and Natural Guardian, Anna M. Levy, et al., Appellants, v Motor Vehicle Accident Indemnification Corporation, Respondent.
    Argued March 26, 1982;
    decided May 6, 1982

      APPEARANCES OF COUNSEL

      Evan Sarzin for appellants.

      James F. Carroll for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (81 AD2d 816).

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


text:
    The People of the State of New York, Respondent, v Charles McPherson, Appellant.
    Argued March 26, 1982;
    decided May 6, 1982

      APPEARANCES OF COUNSEL

      Robert S. Dean and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (Alan D. Rubinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

An examination of the Wade ruling in this case reveals that the-court found that the challenged station house identification of defendant was not the product of a suggestive identification procedure. Inasmuch as a proper basis appears in the record for this finding, it will not be disturbed on appeal. Moreover, we cannot say that the trial court’s brief concern with possibly changing this ruling, after defense counsel opened to the jury, prejudiced defendant in terms of the presentation of his defense or his choice of his undisclosed trial strategy, as the court, upon reconsideration, adhered to its original ruling.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v David L., Respondent.
    Argued March 30, 1982;
    decided May 6, 1982

      APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Jason L. Shaw of counsel), for appellant.

      Andrew E. Abraham and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Order reversed for reasons stated in the dissenting memorandum by former Justice James D. Hopkins and Justice Moses M. Weinstein at the Appellate Division (81 AD2d 893, 895-896) and case remitted to the Appellate Division, Second Department, for consideration of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli and Jones. Judges Wachtler, Fuchsberg and Meyer dissent and vote to affirm for reasons stated in the memorandum of the Appellate Division (81 AD2d 893).


text:
    In the Matter of Leslie Shurgin, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued March 31, 1982;
    decided May 6, 1982

      APPEARANCES. OF COUNSEL

      John G. Lipsett for appellant.

      James H. Whitney, Robert D. Stone and Jean M. Coon for Gordon M. Ambach, as Commissioner of Education of the State of New York, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Marjorie E. Barnes and Ronald E. Sternberg of counsel), for Board of Education of the City School District of New York, respondent.

      Norman H. Gross for New York State School Boards Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Petitioner’s argument — that the commissioner is bound by the factual findings of the hearing panel if supported by substantial evidence — is without merit. Subdivision 5 of section 3020-a of the Education Law provides that “[ejither the employee or the employing board may review the findings of the hearing panel * * * by appeal to the commissioner of education as provided for by article seven of this chapter”. Under article 7 of the Education Law, and in particular section 310 thereof, the Commissioner of Education is given broad authority in terms of reviewing determinations made within the educational system and that authority will not be overturned unless it is arbitrary, capricious or lacks support in the record (Matter of Chauvel v Nyquist, 43 NY2d 48, 52).

Arguably the issues presented to the commissioner on appeals in disputes between boards of education as employers and teachers as employees could be distinguished in kind from the broader issues of educational policy customarily confronted in other appeals pursuant to section 310. No such distinction, however, had been made in appeals taken to the commissioner prior to the amendment of section 3020-a by chapter 82 of the Laws of 1977. Accordingly, it cannot be concluded that, when the Legislature by that amendment expressly conferred the right to section 310 appeals from the findings of section 3020-a hearing panels, it intended in any way to restrict what had been the commissioner’s broad scope of review.

In the present case the commissioner was fully justified in finding that petitioner had knowingly exhibited a pornographic film to his students. The testimony of three of the witnesses clearly establishes this fact, and the hearing panel offered no explanation for its rejection of that portion of their testimony. Under the circumstances, nothing prevented the commissioner from rejecting the panel’s finding as to petitioner’s knowledge of the film and imposing the sanction of dismissal.

The petitioner’s constitutional question was not presented in the petition and thus is not properly before this court (Matter of Mingo v Pirnie, 55 NY2d 1019).

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

Judgment affirmed, with costs, in a memorandum.


text:
    Joanne M. Rudes, as Administratrix of the Estate of Lyle M. Rudes, Jr., Deceased, Appellant, v Raymond G. Walrath et al., Respondents.
    Decided May 6, 1982

      APPEARANCES OF COUNSEL

      Victor J. Ciabotti for appellant.

      Leonard H. Amdursky for Raymond G. Walrath and another, respondents.

      Henry S. Fraser for Guy V. Marcinko, 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 [b]), order affirmed, with costs. The determination by the Appellate Division which reverses Trial Term’s setting aside of a jury verdict as being against the weight of the credible evidence is beyond this court’s power of review (Goehle v Town of Smithtown, 55 NY2d 995; Rochester Tel. Corp. v Green Is. Constr. Corp., 51 NY2d 788; Gutin v Mascali & Sons, 11 NY2d 97, 99; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 148, p 588). As to the defects in the charge discussed in the dissent at the Appellate Division, no question of law was preserved for review by this court.

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


text:
    Michael A. Gurda, Respondent, v Orange County Publications Division of Ottaway Newspapers, Inc., et al., Appellants, et al., Defendant. Michael A. Gurda, Jr., Respondent, v Orange County Publications Division of Ottaway Newspapers, Inc., et al., Appellants, et al., Defendant.
    Argued March 25, 1982;
    decided May 6, 1982

      APPEARANCES OF COUNSEL

      Joseph Sluzar for appellants.

      John S. McBride and Michael Davidoff for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the judgments of Supreme Court, Orange County, reinstated for reasons stated in the concurring in part and dissenting in part opinion of Presiding Justice Milton Mollen and Justice Vito J. Titone at the Appellate Division (82 AD2d 120, 126-133). Question certified answered in the negative.

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


text:
    Anna Lisi et al., Plaintiffs, v Melo Nepola et al., Defendants. Employers Insurance Company of Wausau, Respondent, v Hartford Accident & Indemnity Company, Appellant.
    Decided May 6, 1982

      APPEARANCES OF COUNSEL

      John S. Zachary for appellant.

      Francis P. Bensel 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 [b]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (84 AD2d 560).

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


text:
    Anthony Grace & Sons, Inc., et al., Appellants, v New York Telephone Company et al., Respondents.
    Decided May 6, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judges Gabrielli and Fuchsberg taking no part.


text:
    The People of the State of New York, Respondent, v James David Bruckman, Appellant.
    Submitted April 19, 1982;
    decided May 6, 1982
   Motion for reargument dismissed upon the ground that it was not timely made (22 NYCRR 500.9 [b]). [See 46 NY2d 1020.]


text:
    Dean Tarry Corp., Respondent, v Stanley L. Friedlander et al., Constituting the Planning Board of the Village of Tarry town, Appellants.
    Decided May 6, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that, insofar as taken pursuant to CPLR 5601 (subd [b], par 1), no substantial constitutional question is directly involved and, insofar as taken pursuant to CPLR 5601 (subd [d]), the appeal does not lie to review an order of the Appellate Division made on an appeal in an earlier proceeding.


text:
    Gillette Shoe Co., Inc., et al., Appellants, v City of New York et al., Respondents, et al., Defendant. (And Five Other Actions.)
    Submitted March 29, 1982;
    decided May 6, 1982
   Motion to dismiss the appeals taken as of right denied (CPLR 5601, subd [a], par [iii]; Dalrymple v Shults Chevrolet, 39 NY2d 795, 796).


text:
    Hartwood Syndicate, Inc., Appellant, v Passaic Valley Council, Boy Scouts of America, Respondent.
    Submitted April 5, 1982;
    decided May 6, 1982
   Motion for extension of time within which to move for reargument of motion for leave to appeal granted. Motion for reargument of motion for leave to appeal denied, with $20 costs. [See 53 NY2d 1029.]

Chief Judge Cooke taking no part.


text:
    In the Matter of Donald R. Jermosen, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted April 5, 1982;
    decided May 6, 1982
   Motion for leave to appeal, etc., denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie (CPLR 5601).


text:
    John T. Brady & Company, Appellant, v City of New York, Respondent.
    Submitted April 19, 1982;
    decided May 6, 1982
   Motion for leave to appeal dismissed upon the ground that the nonfinal order sought to be appealed from was entered in an action, not a proceeding, and therefore is not one which comes within the provisions of CPLR 5602 (subd [a], par 2). (See, e.g., Cosme v Town of lslip, 50 NY2d 878.)


text:
    Stella Manolakos, Appellant, v Theodore Manolakos et al., Respondents.
    Submitted April 19, 1982;
    decided May 6, 1982
   Motion for reargument of motion for leave to appeal granted. Upon reargument, motion for leave to appeal denied. Motion for a stay dismissed as academic. [See 56 NY2d 591.]


text:
    Naclerio Contracting Co., Inc., Appellant, v Environmental Protection Administration et al., Respondents.
    Decided May 6, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    Newport Apartments Co., Respondent, v George H. Collins et al., Appellants.
    Submitted April 26, 1982;
    decided May 6, 1982
   Motion for leave to appeal dismissed upon the ground that this court does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]). Motion for a stay dismissed as academic.


text:
    New York City Transit Authority et al., Respondents, v William Lindner et al., Appellants.
    Submitted April 12, 1982;
    decided May 6, 1982
   Motions for reargument of motions for leave to appeal, etc., denied, with $20 costs and necessary reproduction disbursements. A motion to hold a party in contempt for failure to comply with a prior determination results in a nonfinal order (Cohen and Karger, Powers of the New York Court of Appeals, § 43, subd [d], p 176), and no appeal to this court lies as of right or by leave of this court. [See 56 NY2d 536.]


text:
    In the Matter of Raymond Tinsley, Appellant, v Ivan Warner, as a Justice of the Supreme Court of the State of New York, Respondent.
    Submitted May 3, 1982;
    decided May 6, 1982
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. On the court’s own motion, leave to appeal granted. Motion to consolidate the appeal herein with the appeal in the case of People v Tinsley granted. Motion for assignment of counsel granted and William E. Hellerstein, Esq., The Legal Aid Society, 15 Park Row — 18th Floor, New York, NY 10038, assigned as counsel to the appellant on the appeal herein.


author: Fuchsberg, J.

text:
    Sami I. Boulos, as Administrator of the Estate of Saad I. Boulos, Deceased, et al., Appellants, v State of New York, Respondent.
    (Claim No. 60331.)
    Argued March 22, 1982;
    decided May 11, 1982
    APPEARANCES OF COUNSEL

      Daniel H. Mahoney, Paul T. Reliar and Norman Kellar for appellants.

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

Memorandum.

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

Decedent was fatally injured on the afternoon of June 23, 1974, when his 1968 Oldsmobile went off a curve on Route 208 and struck several trees. Claimant, the administrator of decedent’s estate, brought an action against the State for wrongful death and pain and suffering. The Court of Claims found that the State negligently constructed and maintained the highway and that this negligence was the proximate cause of the accident. The Appellate Division reversed, on the law and the facts, and dismissed the claim.

The weight of the evidence supports the determination of the Appellate Division that the roadway was not improperly constructed or maintained. Although there had been a number of prior accidents on the same section of highway, the record indicates that the bulk of these accidents were caused by such factors as excessive speed, alcohol, driver error, or tire failure.

Claimant introduced testimony by local residents that they occasionally experienced difficulty controlling their cars while negotiating the curve. In addition, claimant’s expert testified that the road was not properly banked. The State, however, presented evidence to the contrary through its own expert, who had conducted extensive tests of the road before decedent’s accident in response to complaints by local officials and residents. Not only was the testimony of the State’s expert extensive and detailed, but claimant’s expert stated on cross-examination that the difference between the actual “super-elevation” of the roadway at the point where the accident occurred and what was called for under the required construction standard was only one-quarter inch. Under the circumstances, disturbance of the determination of the Appellate Division is not warranted.

Claimant also argues that the State negligently failed to timely repair the guardrails along the curve. The guardrails were knocked down on a Friday night and decedent’s automobile went through the gap on the following Sunday afternoon. Claimant, however, did not raise the absence of guardrails in his original claim and did not develop this point at trial. Indeed, plaintiff introduced no evidence as to whether repairs reasonably should have been made within that time. Thus, there was no basis for liability in this regard.

Fuchsberg, J.

(dissenting). Exercising the choice permitted between the determination in the trial court and that at the Appellate Division (NY Const, art VI, § 3, subd a; CPLR 5501, subd [b]), I would reinstate the judgment the administrator recovered on behalf of the decedent’s surviving wife and children.

In doing so, I, of course, am alert to the legally necessitous circumstance that, because he was killed in the accident, the decedent, who would have been in the best position to describe the event from plaintiff’s point of view, was unavailable to do so. Lest a tort-feasor who inflicts personal injury be insulated from liability simply because the injuries so produced are fatal, it is well settled that the victim’s representative is not held to “ ‘the high degree of proof required in a case where the injured person may take the stand and give his version’ ” (Noseworthy v City of New York, 298 NY 76, 80 [Desmond, J.]).

This sound rule in mind, I first note, as the majority concedes, that the condition of the curve in question was perilous enough to have become the focus of complaints by local residents. Even more significant, because it reflected general community concern, were the complaints by local officials.

That the deviation from maximum “super-elevation” was not mathematically large does not overcome the fact that it did not meet the State’s own minimum safety standard. When, as the old saw puts it, “the straw broke the camel’s back”, it must have been of little comfort to the camel that it was a straw rather than a ton that wreaked the havoc. This is not pure rhetoric; it is pure law. The defendant was not to be held to any particular degree of negligence. Required only was proof of some and not all possible negligence (see, generally, Prosser, Torts [4th ed], § 34). And the burden of proving contributory negligence, if any, in such a case is always on the defendant (EPTL 5-4.2).

Moreover, the repeated prior accidents bore specific and impressive witness to how dangerous this roadway was to vehicular travelers in actual operation. That some — and only some — of these occurrences also involved additional causative factors was not a vindication of the hazard it presented. It can hardly have been a coincidence that operators of these vehicles — or of vehicles of local residents which passed this point in their everyday comings and goings — would experience remarkable difficulty in controlling their cars on this curve of the road.

In short, I am persuaded that the decision of Court of Claims Judge Edward M. Murray, who, as Trial Judge, had the further advantage of seeing and hearing the conflicting expert witnesses, is most closely in accord with what is revealed by a most searching and insightful survey of the record.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Lower East Side Joint Planning Council, Individually and on Behalf of Its Member Organizations, et al., Appellants, v New York City Board of Estimate, Respondent.
    Argued March 26, 1982;
    decided May 11, 1982

      APPEARANCES OF COUNSEL

      Kenneth Kimerling and Cesar A. Perales for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Marjorie E. Bornes and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Before approving an urban renewal plan for the Seward Park Extension area of New York City, respondent amended the proposal by redesignating 100 out of a much larger number of units of family housing to housing for the elderly. This alteration, in a project containing 1,341 units, is not major and does not alter the essential nature of the project. Consequently, it was within respondent’s power to make the modification (see Margulis v Lindsay, 31 NY2d 167; Fisher v Becker, 32 AD2d 786, affd no opn 26 NY2d 938).

The amendment and the proposed plan were introduced at the same meeting. The amendment was approved by a simple majority, but the entire plan, as amended, was approved by a vote of 9 to 2. Subdivision c of section 62 of the New York City Charter requires a three-fourths vote of approval to pass a “resolution or amendment of any resolution * * * at the same meeting of the board at which it is originally presented.” Otherwise, only a simple majority is required (New York City Charter, § 62, subd b). Designed to protect against hasty action, the section’s policy is not defeated by permitting a majority to approve an amendment, but requiring the three-fourths vote if the amended resolution is to be passed at the same meeting. Thus, the legislative procedure here was proper.

Finally, there was an adequate opportunity for public comment on the question whether housing for families or the elderly should be built.

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

Order affirmed, with costs, in a memorandum.