text:
    Albert J. Schiff Associates, Inc., Appellant, v Alan B. Flack, As Lead Underwriter under Lloyd’s Policy Nos. LC 65458 and LC 65457, et al., Respondents.
    Argued November 17, 1980;
    decided December 22, 1980

      POINTS OF COUNSEL

      Burton I. Monasch, Arnold C. Stream and Gerry E. Feinberg for appellant.
    I. Lloyd’s cannot now claim noncoverage. (Draper v Oswego County Fire Relief Assn., 190 NY 12; Alsens Amer. Portland Cement Works v Degnon Contr. Co.,
      222 NY 34; O’Dowd v American Sur. Co. of N. Y., 3 NY2d 347; Matter of Empire Mut. Ins. Co. [Stroud - Boston Old Colony Ins. Co.], 43 AD2d 931, 36 NY2d 719; Appell v Liberty Mut. Ins. Co., 22 AD2d 906, 17 NY2d 519; Hubbell v Trans World Life Ins. Co. of N. Y., 54 AD2d 94; Beckley v Otsego County Farmers Coop. Fire Ins. Co., 3 AD2d 190; Schichman v Commercial Travelers Mut. Acc. Assn. of Amer., 267 App Div 389.) II. The Massachusetts suit is within the basic coverage of the Lloyd’s policies. (Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356; American Home Assur. Co. v Port Auth. of N. Y. & N. J., 66 AD2d 269; Lee v Aetna Cas. & Sur. Co., 178 F2d 750; Goldberg v Lumber Mut. Cas. Ins. Co. of N. Y., 297 NY 148; Morgan v Greater N. Y. Taxpayers Mut. Ins. Assn., 305 NY 243; International Paper Co. v Continental Cas. Co., 35 NY2d 322; McGroarty v Great Amer. Ins. Co., 36 NY2d 358; Cordial Greens Country Club v Aetna Cas. & Sur. Co., 41 NY2d 996; Utica Mut. Ins. Co. v Cherry, 38 NY2d 735; Sturges Mfg. Co. v Utica Mut. Ins. Co., 37 NY2d 69.) III. None of the exclusion clauses in the policy excuses Lloyd’s from defending the Massachusetts suit. (Sincoff v Liberty Mut. Fire Ins. Co., 11 NY2d 386; Bronx Sav. Bank v Weigandt, 1 NY2d 545; Monari v Surfside Boat Club, 469 F2d 9; Stern, Walter & Simmons v Seaboard Sur. Co., 308 F Supp 252; D’Aquilla Bros. Contr. Co. v Hartford Acc. & Ind. Co., 22 Misc 2d 733, 15 AD2d 509; Everlast Sporting Goods Mfg. Co. v Aetna Ins. Co., 23 AD2d 641; Exchange Mut. Ins. Co. v Blazey, 19 AD2d 682, 13 NY2d 601; White v Globe Ind. Co., 17 AD2d 240; United States v United States Fid. & Guar. Co., 601 F2d 1136; Monari v Surfside Boat Club, 469 F2d 9.)

      Roy E. Pomerantz and Sol Kroll for respondents.
    I. The provisions of the insurance policies do not apply to the claim and suit against the assured; no duty to defend or indemnify exists. (First Nat. Bank v National Sur. Co., 228 NY 469; Government Employees Ins. Co. v Kligler, 42 NY2d 863; Sperling v Great Amer. Ind. Co., 7 NY2d 442; Miller v American Eagle Fire Ins. Co., 253 NY 64; Shapiro v Glens Falls Ins. Co., 39 NY2d 204.) II. Defendants-respondents have neither waived, nor are they estopped from assorting, the question of whether the acts complained of fall within the insuring agreement. (Draper v Oswego County Fire Relief Assn., 190 NY 12; Davison v Klaess, 280 NY 252; Metropolitan Life Ins. v Childs Co., 230 NY 285; Kiernan v Dutchess County Mut. Ins. Co., 150 NY 190; O’Dowd v American Sur. Co. of N. Y., 3 NY2d 347; Prashker v United States Guar. Co., 1 NY2d 584; Moore Constr. Co. v United States Fid. & Guar. Co., 293 NY 119; Simpson v Phoenix Mut. Life Ins. Co., 30 AD2d 265, 24 NY2d 262; Miller v American Eagle Fire Ins. Co., 253 NY 64; Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427, 410 US 931.) III. The exclusions of the policies operate to preclude any defense or indemnity obligation.
   OPINION OF THE COURT

Fuchsberg, J.

The issue is whether a disclaimer of liability, based on specified exclusions in two professional “errors and omissions” indemnity insurance policies, waived the insurers’ defense that the claim was outside the scope of the insuring clause of the policy.

The plaintiff, Albert J. Schiff Associates, Inc., life insurance agents and employee benefit consultants, purchased two such insurance contracts from the defendants, who are Lloyd’s insurers. The “insuring agreement” clause of each policy provides that the insurer will pay “all sums which the Assured shall become legally obligated to pay by reason of liability for any error, omission or negligent act committed, or alleged to have been committed by the Assured * * * while in the performance of services in the professional capacity of the Assured as: (a) Actuaries, (b) Employee Benefit Plan Consultants, and (c) Life Insurance Agents or Brokers.” Under the rubric “exclusions”, for which the policy states it would not indemnify the assured, are listed policyholder conduct (1) “ [which is] Brought about by or contributed to by the dishonest [or] fraudulent * * * Act”, (2) “[which] involves any inability or failure to pay * * * [a] premium claim or tax”, or (3) “[from which] the Assured gained in fact any personal profit or advantage to which the Assured was not legally entitled”.

It was a letter of disclaimer based on these three exclusions that precipitated the dispute between the insured and its insurers. The disclaimer disavowed any obligation to defend or indemnify against a suit brought against the insured in a Massachusetts court. The complaint in that action, brought by a competitor of the insured, one Backman, charged the insured with what is reasonably to be construed, as it was by the majority at the Appellate Division, as a “willful and malicious usurpation of a trade or commercial secret”. Specifically, it alleged that Backman, the developer of a novel insurance program (the Double Dollar Plan), revealed it to Albert J. Schiff, concededly agent plenipotentiary for the corporation which bears his name. It goes on to describe how Schiff, despite the injunction of a written agreement which proscribed his disclosing the plan to others, except under conditions not relevant here, once privy to this information, converted it lock, stock and barrel for the benefit of his corporation, albeit under another name (the Executive Salary Protection Plan). So insistent was the pléader in his assertion that Schiff’s conduct was “willful” that only once in a 10-count complaint did any form of the qualitatively lesser word “neglected” appear, and then only to be preceded by the adjective “willfully”.

These facts are before us in the following procedural context. After the insured received the insurers’ disclaimer of liability, it commenced this action. Juxtaposing the Massachusetts complaint and the language of the insurance contracts (see Shapiro v Glens Falls Ins. Co., 39 NY2d 204), defendants moved under CPLR 3211 (subd a, pars 1, 7) to dismiss the complaint in our case, primarily on the ground that the policy language brought the claim they were being asked to defend squarely within the exclusions recited in their letter of .disclaimer. Focusing on the exclusions, but ñnding that they and the Backman complaint did not dovetail, Special Term denied the motion and, on the authority of Goldberg v Lumber Mut. Cas. Ins. Co. (297 NY 148) and other cases that hold that the duty to defend is broader then the duty to pay, granted plaintiff’s cross motion only to the extent that it ordered defendants to undertake the defense of the suit in Massachusetts.

On appeal to the Appellate Division, that court sharply divided, Justice Sullivan, writing for a majority of three, declined to reach the merits of the disclaimer, but, of the view that the Massachusetts claim did “not in any way suggest a negligent act, error or omission in the performance of any professional services”, held that the claim therefore was not within the policy coverage. Concordantly, the court reversed on the law. Of the two dissenters, Justice Kupferman, characterizing the Massachusetts claim as one based on “idea piracy” would have made no determination with respect to indemnity, but would have affirmed Special Term in providing a defense. For his part, Justice Birns, who also would have affirmed, expressed the opinion that, since the disclaimer relied solely on particular exclusions, it constituted “a waiver” of any unspecified grounds, including the insuring clause itself; since he thought the applicability of the named exclusions unclear, he too would have had the disposition of that issue await the resolution of the underlying Massachusetts action. For the reasons which follow, we believe the result reached by the Appellate Division should be upheld.

We start our analysis by noting that the coverage under the policies in this case is not merely what is found under the heading “insuring agreement”. Just as this clause affirmatively indicates the coverage which is included, so does the “exclusion” clause tell us expressly what is not. In policies so drawn, the protection the insured has purchased is the sum total, or net balance, however one labels it, of a coming together of the two. For it is not either alone, but the combination of both, which defines the scope of the protection afforded — no more and no less.

Now, failure to appreciate the relationship between the two clauses — that they are each part of a whole — has often led not only to misdescription of what is coverage and what is not, but also to consequent contextual misapplication of the concepts of waiver and estoppel as well (e.g., S & E Motor Hire Corp v New York Ind. Co., 255 NY 69; Beckley v Otsego County Farmers Coop. Fire Ins. Co., 3 AD 2d 190; Shichman v Commercial Travelers Mut. Acc. Assn., 267 App Div 389; see, generally, 16A Appleman, Insurance Law and Practice, § 9081).

Thus, for the insured to extend its coverage to more than it originally bargained, it would have had to enter into a supplemental contract expanding the insuring clause or contracting the exceptions. However, this extension of coverage cannot be attained by waiver, which is a voluntary and intentional relinquishment of a known right (Davison v Klaess, 280 NY 252, 261; Draper v Oswego County Fire Relief Assn., 190 NY 12, 16). Waiver evolved because of courts’ disfavor of forfeitures of the insured’s coverage which would otherwise result where an insured breached a policy condition, as, for instance, failure to give timely notice of a loss or failure to co-operate with the insured (16A Appleman, Insurance Law and Practice, § 9082). To defeat the forfeiture, courts find waiver where there is direct or circumstantial proof that the insurer intended to abandon the defense (Kiernan v Dutchess County Mut. Ins. Co., 150 NY 190, 195; see 16A Appleman, Insurance Law and Practice, § 9081). Further, though an insurer’s waiver of forfeiture be upon one ground, it is deemed to embrace unspecified grounds for forfeiture as well (see Appell v Liberty Mut. Ins. Co., 22 AD2d 906, affd without opn 17 NY2d 519 [insurer disclaimed on the sole ground of insured’s non-co-operation, thereby waiving late notice of accident]; Pensky v Aetna Life & Cas. Co., 84 Misc 2d 270 [insurer rejected claim for failure of insured to give notice in writing, thus waiving failure of injured party to give reasonable notice]; see, generally, 18 Couch, Insurance [2d ed], § 71:43). This, however, does not create coverage, for the underlying coverage must be subsisting if the forfeiture is to serve any purpose. So, where the issue is the existence or nonexistence of coverage (e.g., the insuring clause and exclusions), the doctrine of waiver is simply inapplicable (see Gerka v Fidelity & Cas. Co., 251 NY 51, 56; Draper v Oswego County Fire Relief Assn., supra, at p 17; see, generally, 18 Couch, Insurance [2d ed], § 71:39; 2 NY PJI, § 4:79, p 1059-1060; Doctrine of Estoppel or Waiver as Available to Bring Within Coverage of Insurance Policy Risks Not Covered by its Terms or Expressly Excluded Therefrom, Ann., 1 ALR3d 1139, 1144).

Distinguished from waiver, of course, is the intervention of principles of equitable estoppel, in an appropriate case, such as where an insurer, though in fact not obligated to provide coverage, without asserting policy defenses or reserving the privilege to do so, undertakes the defense of the case, in reliance on which the insured suffers the detriment of losing the right to control its own defense. In such circumstances, though coverage as such does not exist, the insurer will not be heard to say so (see O’Dowd v American Sur. Co. of N. Y., 3 NY2d 347; Gerka v Fidelty & Cas. Co., 251 NY 51, 57, supra).

Turning now to the coverage provided by the policies, it is axiomatic that, while a contract of insurance is to be construed liberally in favor of the insured, where its terms are clear and unambiguous, they must be so read (Government Employees Ins. Co. v Kligler, 42 NY2d 863, 864). For our task is to find, not to alter the intention of the parties. And, to be sure, here the intention is manifest. The policies, denominated professional indemnity insurance, obligated the insurer to pay for the insured’s liability arising out of any error, omission or negligent act committed while in the performance of services in its professional capacity as actuary, employee benefit plan consultant and life insurance agent or broker. Key to this clause are the words “performance of services in the professional capacity”. On its face, the Massachusetts case falls outside this coverage.

The insured, nevertheless, argues that, because the allegedly misappropriated plan presumably furthered one or more of the three insurance activities enumerated in the policies, the lawsuit pertaining to such misappropriation falls within the ambit of coverage. Disregarding for now the qualitative character of this alleged acquisition, surely this assertion stands on no firmer ground than would, let us say, a claim that the defendants’ coverage applies to a dispute arising out of a merger agreement between the assured and a former competitor, or one with the assured’s landlord over a commercial tenancy, or with an employment agent through which it secures its personnel, or even one with a computer company which services its office equipment.

The renting of an office, the engagement of employees, arrangements to expand the size of one’s activities, these may all have some connection with a covered business or profession. But, while they may set the stage for the performance of business or professional services, they are not the professional activities contemplated by this special coverage. An errors and omissions policy is intended to insure a member of a designated calling against liability arising out of the mistakes inherent in the practice of that particular profession or business (see Grieb v Citizens Cas. Co., 33 Wis 2d 552). After all, the plaintiff’s policy here was neither a standard general liability policy nor a standard general liability policy with a contractual liability indorsement. Nor was it one comprehensive enough to protect against all business vicissitudes. To hold otherwise, on a fair reading of the policies, would be to create additional coverage beyond that which was bought and paid for.

Having decided that the underlying litigation falls outside the scope of the policies, we now need state only that the insurers did not lose their right to the defense of noncoverage by their initial disclaimer of liability based on the three policy exclusions, since that defense is never waived by a failure to assert it in a notice of disclaimer. Further, there is no question of estoppel in this case since the insurers at all times denied liability to indemnify and refused to undertake to defend. Thus, the defense of noncoverage remained intact and was properly asserted on the motion to dismiss.

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

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

Order affirmed, with costs.

      . The insurance policies, which were obtained through Lloyd’s brokers in England, are identical except that one is primary and the other excess. The defendants here are the underwriters and other participants in the coverage so written.

      . Our court long ago made clear that it will not countenance the avoidance of the law of waiver by respecting the labeling as an exclusion of what, substantively is a condition. (Draper, at p 18.)


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Francis A. Lees, Respondent, v Frank X. Gargiulo et al., Constituting the Board of Elections of the City of New York, Respondents, and Frances Werner, Appellant.
    Submitted August 27, 1980;
    decided August 27, 1980
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie as of right.


text:
    In the Matter of John F. Sorli, Respondent, v Frank Coveney et al., Constituting the Board of Elections of the County of Suffolk, Respondents, and Raymond Furchak, Appellant.
    Argued August 27, 1980;
    decided August 28, 1980

      APPEARANCES OF COUNSEL

      Neil J. Abelson for appellant.

      John F. Sorli, respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the petition dismissed.

Petitioner commenced this proceeding by an order to show cause. Although the order required that service be effected on or before August 7, 1980, service was not completed until the next day at the earliest. Inasmuch as petitioner failed to follow the provisions for service specified in the order to show cause, the petition must be dismissed (see Matter of Bruno v Ackerson, 39 NY2d 718).

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

Order reversed, etc.


text:
    In the Matter of Frank D. De Cola, Appellant, v Joseph J. Previte, et al., Constituting the Board of Elections of the City of New York, and Michael R. Benedetto, Respondents.
    Argued August 27, 1980;
    decided August 28, 1980

      APPEARANCES OF COUNSEL

      Joseph A. Cascione for appellant.

      Peter J. Kiernan for Michael R. Benedetto, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Augustin Alamo et al., Respondents, v Robert S. Black et al., Constituting the Board of Elections of the City of New York, Respondents, and Denise Collins et al., Appellants.
    Argued August 27, 1980;
    decided August 28, 1980
    APPEARANCES OF COUNSEL

      Andrew M. Schnier for appellants.

      Nicholas J. Miglino and John C. Klotz for petitioners-respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the judgment of Special Term reinstated.

The "witness statement” in the designating petitions failed to include a declaration that the signatories had subscribed their names on the dates indicated in the spaces adjacent to their signatures, notwithstanding the clear language of section 6-132 of the Election Law requiring such a declaration. While section 6-132 by its terms permits "substantial compliance” with the statutorily prescribed format for designating petitions, it does not permit deviations from the statutorily prescribed content of such petitions (cf. Matter of Ruiz v Sachs, 43 NY2d 894).

The omission of the required declaration was a substantive departure from the mandates of the statute and not a mere error in form. Absent a declaration that the signatures had been obtained on the dates indicated, the petitions were deficient in much the same manner as they would have been had the witnesses failed to aver that the signatories had signed in their presence. In both cases, there is a fatal failure to include in the petition an element which the Legislature has deemed to be essential.

The substantive requirements of section 6-132 "are designed to facilitate the discovery of irregularities or fraud in designation petitions” (Matter of Rutter v Coveney, 38 NY2d 993, 994). Were we to permit deviation from these requirements in this case, we would be taking the first step toward unraveling the carefully conceived legislative scheme.

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

Order reversed, without costs, and the judgment of Supreme Court, Bronx County, reinstated in a memorandum.


text:
    In the Matter of Lou Wein, Appellant, v Guy V. Molinari et al., Respondents.
    Argued August 27, 1980;
    decided August 28, 1980

      APPEARANCES OF COUNSEL

      John K. Winter for appellant.

      Pascal A. Corbo for respondents.
   OPINION OF THE COURT

Memorandum.

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

Messrs. Molinari, Thompson, Hart and Petrides filed objections to appellant’s nominating petition which were upheld by the Board of Elections. In his subsequent special proceeding to validate his petition, appellant named and served only Molinari and Thompson. Accordingly his proceeding was fatally defective for failure to. name and serve Messrs. Hart and Petrides (Matter of Cappellazzi v Toto, 41 NY2d 1050).

It is irrelevant that Hart had not joined in the counterpart proceeding to invalidate appellant’s nominating petition; the necessity for making him a party to the validation proceeding stemmed from his status as an objector. Nor was the deficiency of parties respondent remedied by the circumstance that the attorney for Molinari and Thompson may also have been attorney for Hart and Petrides. It cannot be successfully contended that Hart and Petrides were brought into the proceeding in consequence of this attorney’s admission of service of the order to show cause instituting the validation proceeding; that admission of service, indorsed on the original order to show cause, is expressly limited to the named respondents, Molinari and Thompson.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Jerry S. Amalfitano et al., Respondents, v Anthony Sadowski et al., Constituting the Board of Elections of the City of New York, et al., Respondents, and Carmine A. Guadagnino, Appellant.
    Argued August 27, 1980;
    decided August 28, 1980

      APPEARANCES OF COUNSEL

      Robert D. Clark for appellant.

      Harry R. Pollak for petitioners-respondents.
   OPINION OF THE COURT

Memorandum.

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

Since the cover sheet of the nominating petition correctly specified the number of signatures collected for Assembly District Leader and Associate District Leader, the petition should not be invalidated as to those candidates (see Election Law, § 6-134, subd 2). The irregularities in the cover sheet, if any, with respect to candidates who were joined in the combined designating petition for other offices are not determinative with respect to the offices in question in this proceeding.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Mary A. Ogilvie, Appellant, v George D. Salerno et al., Constituting the Board of Elections of the State of New York, and William Pins et al., Respondents.
    Submitted August 28, 1980;
    decided August 28, 1980
   Motion for leave to appeal denied.

Judge Meyer taking no part.


text:
    In the Matter of Edward J. Kiley, Appellant, v Frank Coveney et al., Constituting the Suffolk County Board of Elections, and Neil Greene, Respondent.
    Argued August 28, 1980;
    decided August 29, 1980

      APPEARANCES OF COUNSEL

      Edward J. Kiley, appellant pro se.

      Steven M. Schapiro for respondent.
   OPINION OF THE COURT

Order affirmed, without 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 Lorne A. Bennett et al., Appellants, v Alan J. Justin et al., Respondents.
    Argued August 28, 1980;
    decided August 29, 1980

      APPEARANCES OF COUNSEL

      David E. Blabey for appellants.

      Timothy A. McCarthy for Alan J. Justin, respondent.
   OPINION OF THE COURT

Order affirmed, without 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 G. Thomas Moynihan, Jr., Respondent, v Arlene M. Street et al., Constituting the Board of Elections of Warren County, Respondents, and Harold W. Katz, Appellant.
    Argued August 28, 1980;
    decided August 29, 1980

      APPEARANCES OF COUNSEL

      Thomas J. Spargo for appellant.

      Justyn E. Miller for respondent.
   OPINION OF THE COURT

Order affirmed, without costs (see Matter of Higby v Mahoney, 48 NY2d 15).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg. Judge Meyer concurs on constraint of Matter of Higby v Mahoney (48 NY2d 15).


text:
    In the Matter of Calvin C. G. Williams, Respondent, v Leonard Vaughn, Appellant, et al., Respondents. In the Matter of Leonard Vaughn, Appellant, v Frank X. Gargiulo et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued August 28, 1980;
    decided August 29, 1980

      APPEARANCES OF COUNSEL

      Morrell I. Berkowitz for appellant.

      Thornton J. Meacham, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is modified, without costs, by providing that the application to validate the designating petition of Calvin C. G. Williams is granted only to the extent of directing that the name of Calvin C. G. Williams be placed on the ballot as a candidate for the position of Assembly District Leader, Liberal Party, from the 32nd Assembly District, and of reinstating so much of the order of Special Term as struck the names of all other candidates named in said petition from the ballot, and to dismiss as moot the petition to invalidate said designating petition, and, as so modified, the order should be affirmed. Petitioner Williams was not a proper party to bring a proceeding to validate the Williams petition as to candidates other than himself.

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

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


text:
    Fonda Manufacturing Corp., Appellant, v Lincoln Laminating Corp., Respondent. Princeton Knitting Mills, Inc., Appellant, v Lincoln Processing Corp., Respondent.
    Submitted June 30, 1980;
    decided August 29, 1980
   Motion for leave to appeal dismissed upon the ground that that part of the order of the Appellate Division sought to be appealed from does not finally determine the actions within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 39).


text:
    Gerald P. Harrington et al., Respondents, v Nello Homes, Inc., et al., Appellants, et al., Defendants.
    Submitted June 30, 1980;
    decided August 29, 1980
   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).


text:
    In the Matter of Patrick Henry, as District Attorney of the County of Suffolk, et al., Respondents, v Anthony Noto, as Presiding Officer of the Suffolk County Legislature, et al., Appellants.
    Submitted July 7, 1980;
    decided August 29, 1980
   Motion to amend remittitur and for remittal to the Appellate Division denied. [See 50 NY2d 816.]


text:
    The Rector, Churchwardens and Vestrymen of the Parish of Calvary, Holy Communion and St. George’s in the City of New York, Respondents, v Stephen Hopkins et al., Appellants, and Robert Abrams, as Attorney-General of the State of New York, Respondent.
    Submitted June 30, 1980;
    decided August 29, 1980
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellants’ motion to enlarge the record, dismissed upon the ground that said order does not finally determine the proceeding within the meaning of the Constitution; motion otherwise denied.


author: Fuchsberg, J.

text:
    In the Matter of Irma Rodriguez, Respondent, v Moses S. Harris, Appellant, et al., Respondents. In the Matter of Moses S. Harris, Appellant, v Anthony Sadowski et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued August 27, 1980;
    decided September 2, 1980

      APPEARANCES OF COUNSEL

      Harry Kresky for appellant.

      H. Spencer Kupperman for Irma Rodriguez, respondent.
   OPINION OF THE COURT

Memorandum.

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

It was the factual determination of Special Term that there was no proof of forgery , or fraud or that the candidate himself had participated in or had any knowledge of the irregularities in the designating petition. In this circumstance the conclusion that, among 4,336. signatures held valid by the Board of Elections (out of a total 6,000 signatures), 9 signatures were invalid because they had not been taken by the notary or by the subscribing witness is insufficient as a matter of law to establish fraud as to the method or on the part of the persons collecting the signatures or a pattern of irregularities, such as in either instance could be said to have permeated the entire designating petition.

Fuchsberg, J.

(concurring). I write separately because I believe we should note that, as the objectant conceded at argument, appellant’s so-called "team” method of gathering signatures was not per se improper or irregular. That said, I agree that, under the circumstances of this case, viewed either in the context of this modus operandi or by itself, it cannot be said that the disputed claim that the subscribing witnesses did not in fact administer oaths to 9 of the signators was sufficient to make out a case of permeation of the 6002-signature petition.

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

Order reversed, without costs, and the judgments of Supreme Court, Kings County, reinstated in a memorandum.


text:
    In the Matter of Osher Chechik, Appellant, v New York State Tax Commission, Respondent.
    Submitted July 14, 1980;
    decided September 2, 1980
   Motion, insofar as it seeks leave to appeal from the April 3, 1980 order of the Appellate Division, denied. Motion, insofar as it seeks leave to appeal from the June 2, 1980 order of the Appellate Division denying vacatur of the order of that court dated April 3, 1980, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Howard Davis, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted June 30, 1980;
    decided September 2, 1980
   Motion for leave to appeal, etc., dismissed upon the ground that relator has been released on parole and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    Stephen G. Glatzer, Appellant, v Francis X. Smith, as Deputy City Administrative Judge, Civil Branch for the Civil Court of the City of New York, Respondent.
    Submitted July 14, 1980;
    decided September 2, 1980
   Motion for leave to appeal denied.

Chief Judge Cooke taking no part.


text:
    Lentini Brothers Moving & Storage Co., Inc., Appellant, v New York Property Insurance Underwriting Association, Respondent, et al., Defendants.
    Submitted July 14, 1980;
    decided September 2, 1980
   Motion to dismiss the appeal denied.


text:
    In the Matter of Pyramid Company of Ithaca, Appellant, v Grievance Board of Review of Tompkins County et al., Respondents.
    Submitted. July 21, 1980;
    decided September 2, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 21).


text:
    In the Matter of Robert Torsney, Appellant, v Robert McGuire, as Police Commissioner of the City of New York, et al., Respondents. (And Another Title.)
    Submitted July 14, 1980;
    decided September 2, 1980
   Motion for leave to appeal dismissed upon the ground that the supporting papers, including the brief, record or appendix, and order sought to be appealed from, were not served at least eight days prior to the return date of the motion (22 NYCRR 500.9 [a]; Community School Bd. Dist. 6, Manhattan v Anker, 49 NY2d 997; Dellaratta v International House of Pancakes, 46 NY2d 936; see, also, Reminder Notice to the Bar [April 29, 1980], 49 NY2d 998; Notice to the Bar [June 11, 1979], NYLJ, June 15, 1979, p 6, col 2).


text:
    Avi Zubli et al., Appellants, v Community Mainstreaming Associates, Inc., et al., Respondents.
    Submitted July 21, 1980;
    decided September 2, 1980
   Motion to clarify denied, with $20 costs. [See 50 NY2d 1024.]

Judge Wachtler taking no part.


text:
    In the Matter of Mark GG, a Child Alleged to be Neglected. Clinton County Department of Social Services et al., Respondents; Anonymous (Prospective Adoptive Parents), Intervenors-Appellants.
    Argued September 2, 1980;
    decided September 4, 1980

      APPEARANCES OF COUNSEL

      John A. Lahtinen for appellants.

      Penelope D. Clute and John E. Clute for Franciska GG, respondent.

      John Dee, Assistant County Attorney, for Clinton County Department of Social Services, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (69 AD2d 311).

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


text:
    Vera Anker, as Executrix of Herbert Anker, Deceased, Respondent, v Frederick Brodnitz et al., Appellants.
    Submitted July 7, 1980;
    decided September 4, 1980
   Motions by appellants for leave to appeal dismissed, with $20 costs, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Cross motion denied.

Judge Fuchsberg taking no part.


text:
    Marie A. De Vries, Appellant, v William H. De Vries, Respondent.
    Submitted July 7, 1980;
    decided September 4, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, §§ 14, 39, 40).


text:
    Marie A. De Vries, Appellant, v William H. De Vries, Respondent. (And Two Other Actions.)
    Submitted July 7, 1980;
    decided September 4, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution. (Cohen and Karger, Powers of the New York Court of Appeals, §§ 38, 39.)


text:
    In the Matter of Eugene Gold, as District Attorney of Kings County, Respondent, v Stanley Gartenstein, as a Judge of the Criminal Court of the City of New York, Respondent, and Darry P., Appellant.
    Submitted July 14, 1980;
    decided September 4, 1980
   Motion by respondent Gartenstein for leave to file a notice of appeal nunc pro tunc dismissed (CPLR 5514, subd [c]).


text:
    Cecil Duverney, Appellant, v State of New York et al., Respondents.
    (Claim No. 60332.)
    Submitted July 14, 1980;
    decided September 4, 1980
   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., Herman Constr. Co. v State Univ. Constr. Fund, 41 NY2d 943.)


text:
    Dorothy Greenbaum, Appellant, v Prudential Insurance Company of America, Respondent.
    Submitted June 30, 1980;
    decided September 4, 1980
   Motion for leave to appeal and conditional cross motion for leave to appeal dismissed, each upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    In the Matter of Rose Matsis, Respondent, v Aristides Mat-sis, Appellant.
    Submitted July 14, 1980;
    decided September 4, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 43).


text:
    John Muth et al., Appellants, v J & T Metal Products Company, Inc., et al., Respondents.
    Submitted July 21, 1980;
    decided September 4, 1980
   Motion for leave to appeal dismissed upon the ground that plaintiffs are not parties aggrieved by the order sought to be appealed.


text:
    In the Matter of the Arbitration between New York City Transit Authority, Appellant, and Louis Thom et al., Respondents.
    Submitted July 14, 1980;
    decided September 4, 1980
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed the judgment of Supreme Court denying petitioner’s application to stay arbitration, granted. Motion, insofar as. it seeks leave to appeal from that portion of the Appellate Division order which affirmed the order of Supreme Court denying renewal, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution.


text:
    H. Allen Orshan, Appellant, v Frank J. Macchiarola, as Successor to Irving Anker, as Chancellor of the Board of Education of the City of New York, Respondent.
    Decided September 4, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that an appeal does not lie pursuant to CPLR 5601 (subd [d]) from the nonfinal order of the Appellate Division appealed from.


text:
    In the Matter of Jerome L. Steinberg, a Judge of the Civil Court of the City of New York, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Submitted August 11, 1980;
    decided September 4, 1980
   Motion for reargument, for a stay and for deletion of portions of the Per Curiam opinion herein denied in all respects. [See 51 NY2d 74.]


text:
    Irene A. Swanson, Appellant-Respondent, v Robert E. Swanson, Respondent-Appellant.
    Submitted July 21, 1980;
    decided September 4, 1980
   Motion to dismiss cross appeal granted and cross appeal dismissed, without costs, upon the ground that the cross appeal pursuant to CPLR 5601 (subd [d]) does not lie because the cross appellant is not a party aggrieved by the prior nonfinal order of the Appellate Division (CPLR 5511). Motion for a stay denied.


author: Chief Judge Cooke and Fuchsberg, J.

text:
    In the Matter of Gordon Haskell, Appellant, v Frank X. Gargiulo et al., Constituting the Board of Elections of the City of New York, and Barry Hurowitz, Respondent. In the Matter of Irma Rodriguez, Appellant, v Richard A. Izzo et al., Respondents.
    Argued September 5, 1980;
    decided September 5, 1980

      APPEARANCES OF COUNSEL

      Martin Connor for Gordon Haskell, appellant.

      Robert Allen Muir, Jr., for Irma Rodriguez, appellant.

      Jerome Seidell for Barry Hurowitz, respondent.

      Richard A. Izzo, respondent pro se.

   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be reversed, and the matters remitted to that court for consideration of the facts (CPLR 5613).

Special Term held that the petitions should be invalidated after finding that 12 of the signatories had not made the required affirmation. In addition, and more importantly, the court found that Steven Izzo, respondent’s brother, had misrepresented to a signatory, who did not speak English, that the petition related to a different candidate. The court also found that the candidate himself acted as a subscribing witness to at least one signature which had actually been taken by another person. Finally, the court noted that respondents failed to call subscribing witnesses under their control. Based on these factual determinations and the inferences expressly drawn therefrom the court concluded that all the petitions with signatures gathered by the subscribing witnesses involved in such fraud and irregularities were tainted and should be invalidated.

The Appellate Division erred in holding that this evidence was insufficient "as a matter of law” to support Special Term’s determination (cf. Matter of Mercorella v Benza, 37 NY2d 792). Here the instances of fraud found by Special Term go beyond the irregularities found in Matter of Rodriguez v Harris (51 NY2d 737; see, also, Matter of Caruso v Casciola, 27 NY2d 657) and permeate all the petitions obtained by the subscribing witnesses involved, reducing the number of valid signatures to less than that required.

Chief Judge Cooke and Fuchsberg, J.

(dissenting). Because we find this case indistinguishable from our recent decision in Matter of Rodriguez v Harris (51 NY2d 737) — where this court found the proof of permeation to be "insufficient as a matter of law” — we are compelled to dissent. The determination of the Appellate Division should be affirmed.

These two proceedings seek to invalidate petitions designating Democratic Party primary candidates for the offices of Representative to the United States Congress and Civil Court Judge. Special Term granted the petition to invalidate, relying heavily upon the failure of respondents to produce the subscribing witnesses to the designating petition. A unanimous Appellate Division reversed, and found insufficient proof of permeation as a matter of law. This court now reverses, on the basis of the testimony of no more than 12 signatories — out of a total of more than 1,500 signatories — who testified that no oath was administered to them. In so doing the court cites no evidence indicating a pattern of fraud or irregularities in the signature gathering method or on the part of the persons collecting the signatures. Absent such proof, a case of permeation has not been made out, as a matter of law (Matter of Rodriguez v Harris, supra).

The Harris case, decided but three days ago, is now effectively being discarded by the majority. In Harris, as here, there were comparatively few irregularities, no proof of a pattern of 'misconduct, and a person close to the candidate, the campaign manager, • participated in gathering signatures. Nonetheless, this court held the failure to prove a pattern of misconduct to be decisive.

There exists no justification for ignoring Harris, as it correctly reflects the interaction of the principles of law governing this area. The Harris case is premised on two settled rules: first, the petitioner in a proceeding to invalidate bears the burden of proof (e.g., Matter of Dilan v Carulli, 41 NY2d 1054); second, there is a presumption that the acts of a public official — a notary public or commissioner of deeds who administers oaths to signatories — are regular (e.g., Matter of Rittersporn v Sadowski, 48 NY2d 618, 619). The presumption is a strong one, and even applies where the commissioner of deeds is the candidate himself (id.). These postulates are well rooted in the reality that a drive for a large number of signatures in the compass of the limited petitioning period allowed by the statute almost inevitably will be accompanied by imperfections. A contrary expectation would border on the naive and unwarrantedly discourage access to the electoral process.

To allow permeation to be established without proof of a pattern of irregularities is to invert the presumption of regularity; it is, in effect, to presume irregularity based on proof of but a few isolated instances. Moreover, to draw any inference from the candidates’ failure to put in any evidence is to ignore the burden of proof.

Thus, the two fundamental legal principles reflected in the Harris decision dictate that a case of permeation is established only upon proof bot-h of irregularities and a pattern of misconduct. Here, only a few irregularities have been found, but there is no evidence of any pattern. For this reason, permeation has not been shown, as a matter of law.

Matter of Mercorella v Benza (37 NY2d 792), cited by the majority, is inapposite. There, it was stated that "[b]ased on the record in this case” the conclusion of the Appellate Division was erroneous — because as shown by the record, there was no transcript available on which the Appellate Division conclusion could be predicated. The record in the present case clearly reveals the failure of proof.

In sum, while ordinarily permeation questions are ones of fact, in this case, where in a petition containing over 1,500 signatures only 12 of the signatories were proved to have been unsworn, and no pattern of irregularities has been shown, the Appellate Division committed no error when it foupd that these and the other irregularities were insufficient to invalidate the petition as a matter of law (Matter of Rodriguez v Harris, 51 NY2d 737).

Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Chief Judge Cooke and Judge Fuchsberg dissent and vote to affirm in a dissenting memorandum.

In each case: Order reversed, without costs, and the matter remitted to the Appellate Division, Second Department, for furthér proceedings in accordance with the memorandum herein.

       While four signatures were found not to be genuine, there is no finding as to who was responsible for those signatures.


text:
    Christopher C. Blenman et al., Appellants, v Melville B. Herron et al., Respondents.
    Argued September 5, 1980;
    decided September 5, 1980

      APPEARANCES OF COUNSEL

      Leonard Brodsky for appellants.

      Agostinho Diaz Reis for respondents.
   OPINION OF THE COURT

Order affirmed, without costs. The exception carved out for candidates in Matter of Pell v Coveney (37 NY2d 494) does not apply to objectors (see Matter of Thompson v Wallace, 45 NY2d 803, 804).

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


author: Fuchsberg, J. Jasen and Jones, JJ.

text:
    Brigette Sewar, by Her Parent and Natural Guardian, Frances L. Barnes, et al., Respondents, v Gagliardi Brothers Service et al., Defendants, and Ridge Road Express, Inc., et al., Appellants.
    Argued May 28, 1980;
    decided September 9, 1980

      APPEARANCES OF COUNSEL

      Sheldon Hurwitz for appellants.

      Stanley Grossman, James J. Sansone and Morree M. Levine for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. It cannot be said that the evidence of each of the elements of negligence, the theory on which the case was tried, was insufficient to present a jury question. Nor were there any errors of law which would warrant reversal.

Fuchsberg, J.

(concurring). Posed for resolution on this appeal are questions of duty, negligence and legal causation in the context of a claim for damages against the owner and driver of a school bus, one of whose young charges was so seriously injured when she was struck by another vehicle shortly after her discharge from the bus that the jury evaluated her injuries at $2,000,000. At issue too is the applicability in the circumstances of this case of section 1174 of the Vehicle and Traffic Law, which, inter alia, speaks to safety in the transportation of children by school bus drivers.

In two extensive writings, the Appellate Division divided sharply. So now does this court. The dissenters, adopting so much of the minority opinion below "as concluded that appellants’ actions did not proximately cause the accident”, would dismiss. The plurality’s contrary view is, to say the least, summary. Under these circumstances, I believe it would be useful to outline the rationale for the conclusions I have reached. All the more so because of the confusion which too often accompanies the application of the fundamental but overlapping principles of tort law on which the outcome here depends.

Many of the controlling facts are conceded. Plaintiff Brigette Sewar, then a 12-year-old junior high school student, boarded a school bus owned by defendant Ridge Road Express and driven by defendant Kirk for her regular homebound trip a£ the close of the school day. The route designated by the local board of education took the bus eastbound along Route 31, a heavily trafficked major highway linking the child’s hometown of Lockport with the City of Rochester. As he neared the intersection closest to where the child’s family lived, the driver made a right-hand turn from Route 31 on to Wilson Road, a north-south street on the west side of which was located the official school bus stop at which Brigette and other children were to disembark. When it came to a halt, the front of the bus, which then faced south, was approximately 50 feet from Route 31, its rear no more than 10 feet away.

Other things are in sharp dispute. The b'us driver was to tell the jury that he informed the alighting pupils, who, as he was aware, lived east of Wilson Road and therefore at some point would have to cross that thoroughfare to reach their homes, to do so in front of the bus. He also testified that he did not drive off until they had- complied and that, .while he remained at the stop, the flashing red signals with which this "national school bus chrome”-colored vehicle was required to be equipped were in operation (Vehicle and Traffic Law, § 375, subds 20, 21). The best recollection of the children, on the other hand, was that, having received no such cautions when they stepped out of the bus, they walked along its right side toward the rear, the nearest place from which those who, like Brigette, had to cross Route 31 could navigate it.

It is unquestioned that Brigette had advanced some 10 or 15 feet beyond her classmates when she made a beeline for her home, which lay diagonally across the intersection on Route 31, only a little east of where Wilson Road met the highway. Before she reached the halfway mark, however, she was struck by a motor vehicle owned by Gagliardi Brothers Service and operated by defendant Gamillo Gagliardi heading east on Route 31. At the trial, he claimed that he never saw the school bus or its flashing lights as he approached the Wilson Road intersection. Our own examination of the photographic exhibits of the area which were put in evidence during trial reveals that the jury could have found that, had the brightly marked and lit bus still been at the stop, it would have been readily visible to one in Gagliardi’s position as he drove towards his unintended meeting with the child that afternoon.

On this evidence the trial court sent the case to the jury under instructions that it apply principles of common-law negligence to all the defendants and that, as to the bus driver and his employer, it additionally consider his alleged violation of subdivision (b) of section 1174 of the Vehicle and Traffic Law as "some evidence of negligence”. This subdivision requires that "[t]he driver of [a] school bus, when discharging pupils who must cross the highway, shall instruct such pupils to cross in front of the bus and the driver thereof shall keep such school bus halted with red signal lights flashing until such pupils have reached the opposite side of the highway”. The court went on, inter alia, to charge the jury that it was for it to determine whether a violation of any common-law or statutory duties owed by the defendants proximately caused the injuries. In this connection, he also advised the jurors, it was for them to say whether it was reasonably foreseeable that such violations might lead to the child’s being struck and whether plaintiff was free from contributory negligence.

The jury’s deliberations ended in a finding in favor of Brigette and her mother against the bus company and its driver. At the same time, it brought in a no cause as to the Gagliardis, whose defense had been that their vehicle had come upon the child too unexpectedly to escape the impact. A sharply divided Appellate Division has since upheld the judgment entered on these verdicts.

In their quest for a reversal of the order of affirmance, the appellants first urge that it was error for the trial court to charge subdivision (b) of section 1174. As their reasoning runs, that statute guards only against injuries sustained by pupils struck by motor vehicles traveling on the very highway on which a bus is stopped and therefore was inapplicable here, where Gagliardi was driving on Route 31 and the bus had dropped off the children on Wilson Road. On that premise, they erect a second contention: that, under a charge which presented an admixture of statutory and common-law theories of negligence, it was impossible to tell whether the jury reached its conclusions on common-law or statutory grounds, the impermissible statutory theory thus tainting the verdict irreparably. And, most sweepingly, in an argument which, though cast primarily in terms of proximate cause, commingles that concept with related considerations of duty and negligence, they insist the plaintiffs did not make out a prima facie case and that the complaint should therefore have been dismissed. For the reasons which follow, I disagree on all counts.

At the outset, it may be well to make clear that while, under Van Gaasbeck v Webatuck Cent. School Dist. No. 1 (21 NY2d 239), a violation of subdivision (b) of section 1174 of the Vehicle and Traffic Law may give rise to absolute liability, the case before us now was not decided on such a theory. Instead, as already indicated, the jury was plainly instructed that the driver’s violation of the statute was merely "some evidence” of negligence and any contributing fault on Brigette’s part would be an absolute bar to her recovery. Since there was no objection, no cognizance is to be taken of the clear error in so charging (see Martin v City of Cohoes, 37 NY2d 162).

Turning then at once to the question whether subdivision (b) provides protection only against motor vehicles traveling on the identical highway, the short answer is that there is nothing in its language which so confines the scope of the duty it defines. Appellant’s opposing view — that, since the companion subdivision (a) protects children only against vehicles which are on the same street as a stopped school bus, a so-called "logic of concomitant duties”, whatever , that entrancing phrase may mean, dictates that the same limitation apply to subdivision (b) — does not withstand analysis. Unlike subdivision (a), which focuses on the duty of a driver of a second vehicle "meeting or overtaking” a stopped school bus "from either direction”, subdivision (b) describes the bus driver’s far different obligations alone. And, while the single duty subdivision (a) imposes can only be triggered by "meeting or overtaking” a stopped bus, the many duties which are placed with the bus driver by subdivision (b) are in no way made to depend on the .presence or absence of another vehicle. In fine, our task being to find, not to alter, the legislative intent, I take subdivision (b) at its word (see Nanuet Nat. Bank v Eckerson Terrace, 47 NY2d 243).

Thus, in ordering the bus driver to direct his charges to cross in front of the bus, subdivision (b)’s unqualified command makes no distinction among such diverse circumstances as, for instance, whether a yet unseen and unseeing vehicle is about to arrive at the scene from around a blind corner, or whether one oncoming in plain view is about to pass the bus, or whether there is no other vehicle to be reckoned with at all. Similarly self-standing is the clear-cut requirement that, until the pupils have reached the opposite side of the street on which they have alighted, the bus continue at rest, its flashers going. And the same thing is to be said of the at least implicit compulsion that the bus driver inform himself as to "the pupils who must cross the highway”.

This said, the possibility that the jury found negligence on an impermissible theory disappears from this case. For, even absent the statute, and at a time when school busing and the dangers it entails were not as omnipresent as they are today, this court recognized a common-law duty in school bus drivers to exercise reasonable care for the protection of children who must cross a roadway after leaving the bus (McDonald v Central School Dist. No. 3, 289 NY 800). Consequently, assuming for the moment that there was sufficient proof of negligence and causation to take this case to the jury on those issues, it did not matter on which of the two theories submitted the jury reached its general verdict. Either the statutory or common-law ground would have served.

This brings us to the over-all question of whether plaintiffs made out a prima facie case. To that end, they had to demonstrate more than the existence of a duty. For, not only duty, but negligence and causality are, aside from damages, the basic elements germane to the determination of negligence cases (Green, Causal Relation Issue In Negligence Law, 60 Mich L Rev 543, 546). It therefore may be useful to the exposition of my analysis on this point, to essay, albeit briefly, some definition of the relevant concepts.

Duty, as we have seen, is essentially a legal term by which we express our conclusion that there can be liability. Simply, it tells us whether the risk to which one person exposes another is within the protection of the law. The determination of that question may take into account not only the facts in the particular case, but also, generally though not necessarily, foreseeability (Havas v Victory Paper Stock Co., 49 NY2d 381, 385-386; see, also, Pulka v Edelman, 40 NY2d 781). At times, as in the case before us now, it also may be spelled out in some detail by legislative history (see NY Legis Doc, 1954, No. 36, p 98). As Chief Judge Cardozo had occasion to put it, "the orbit of the duty” is "at times a question for the court, and at times, if varying inferences are possible, a question for the jury” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 343, 345).

Negligence, on the other hand, bespeaking as it does the quality of the conduct which precedes or accompanies an act or omission, in the consideration of which foreseeability is instinct (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507), calls for a finding that the defendant, exercising the foresight of an ordinarily prudent person in the circumstances presented by the case at hand, violated a duty one so positioned owed to the plaintiff. That is, did the defendant act with due care in the circumstances revealed by the evidence? Though the Trial Judge is not without power to examine the facts to determine in the first instance whether there are two sides to the question (Quinlan v Cecchini, 41 NY2d 686), the essentially factual nature of the issue means that its resolution most oft is for the jury (see Pound, Introduction to the Philosophy of Law [rév ed, 1954], p 71).

Finally, the element of causation may be said to provide the essential link between negligent conduct and its consequences, between the harm threatened and the harm done. It answers the question whether the evidence is sufficient to support a reasonable inference that the defendant’s conduct contributed to the injuries or, at least, whether, in the circumstances, reasonable men here too may differ in the inferences they draw. Though negligence and causation frequently flow into one another, they are not the same; for one thing, the foreseeability that is indigenous to negligence is not always the same as the foreseeability relevant to causality, since the latter essentially is to be viewed as of the time when the damage was done while the former relates to the time when the act or omission occurred (see Sheehan v City of New York, 40 NY2d 496, 501; Hogan v Comac Sales, 245 App Div 216, 219, affd 271 NY 562; Restatement, Torts 2d, § 435). However, as is to an even greater extent true in fixing the bounds of duty, not only logic and science but policy and philosophy play a role in determining whether the current of causation is to stop at one point or another (Becker v Schwartz, 46 NY2d 401, 408; Ventricelli v Kinney System Rent A Car, 45 NY2d 950; Pagan v Goldberger, 51 AD2d 508, 510; Ortiz v Kihoshita & Co., 30 AD2d 334, 336-337; Prosser, Torts [4th ed], § 42, pp 244-249).

These principles before us, I find ample evidence in the record of the present case to support the Trial Judge in his submission to" the jury and to sustain the findings on negligence and causation implicit in the verdict rendered on the basis of the charge so given.

Clearly, the proof permitted the jury to conclude that the bus driver did not tell the children to cross only in front of the bus and that they in fact did not do so. This would have been in direct violation of the statutory duty and could be found to be in violation of a common-law standard of reasonable care as well. For common sense alone could be found to be enough to have alerted one entrusted with children to be conscious of the propensity of youngsters, unrestrained by a guiding hand, to do the very thing Brigette did — take the shortest rather than the safest way home. Beyond that, there is Gagliardi’s testimony that he never saw the brightly colored bus at or near .the intersection although he was approaching it on a straightaway for at least some 500 feet before he arrived at the point of impact. To that can be added the fact that the record could permit a fact finder to determine that very little time — pérhaps measured in seconds — had elapsed during the interval in which the child, who had moved continuously from the time she alighted until the time she was struck, had traversed the relatively short distance she would have had to cover. Combining these two facts, it was surely within the province of the jury to infer that the bus had not waited until the children had reached a safe location, but had sped away to its next stop the instant Brigette and her companion had reached the street.

Furthermore, had the bus remained on the scene until Brigette had reached a place of safety, Gagliardi, though not within the embrace of subdivision (a) of section 1174 of the Vehicle and Traffic Law because he was proceeding along Route 31 whereas the bus had stopped on Wilson Road, may have been expected to see and appreciate the significance of the presence of the clearly identifiable school bus so close to the corner. So, the jury could have reasoned that, thus alerted to the probability that young children were about, Gagliardi would have been in a position to more readily respond by slowing his vehicle and bringing it under sufficient control to successfully avoid what would no longer have been a totally unexpected emergency.

To boot, in face, of the driver’s knowledge of the heavy traffic conditions on Route 31 and Brigette’s need to ultimately get to the northeast corner of the intersection, it was obvious that his failure to see her safely to the east side of Wilson Road would allow her to expose herself to the increased hazard of a longer and more irregular navigation of that busy highway. In any event, the Legislature had decided not to leave the matter to imagination or judgment. The statute was explicit. But, if it were not, the driver’s failure to accommodate to these foreseeable consequences could be found to run afoul of due care. So much for negligence.

Very little more need be added on causation. Here most of the facts that established the negligence phase of the case also sufficed to permit a logical finding that the conduct of the bus driver was at least a substantial factor in producing the injuries. Indeed, though closeness of time and place are not always essential to a finding of causality (cf. Bird v St. Paul, Fire & Mar. Ins. Co., 224 NY 47, 53-54; see 1 NY PJI 214-215; Restatement, Torts 2d, § 433, Comment f), there was nothing remote about the sequence of events or the spatial or temporal considerations that surrounded them (cf. Pratt v Robinson, 39 NY2d 554 [accident occurring three blocks from bus stop]). Ergo, it cannot be said that the presence of a vehicle on Route 31 was an interruption of the natural train of things set in motion by the bus driver’s failure to see the child across Wilson Road in front of the bus (see, generally, Sheehan v City of New York, 40 NY2d 496, 503-504, supra).

In all, the danger to the children was patent and the result was no more than might have been expected.

It is for all these reasons that I cast my vote for the result reached by the Appellate Division.

Jasen and Jones, JJ.

(dissenting). We would reverse the order appealed from for the reasons stated in so much of the dissenting opinion of Mr. Justice Stewart F. Hancock, Jr., at the Appellate Division (69 AD2d, at pp 294-296) as concluded that appellants’ actions did not proximately cause the accident and the injuries sustained by plaintiff Brigette Sewar.

Chief Judge Cooke and Judges Gabrielli and Wachtler concur in memorandum; Judge Fuchsberg concurs in a concurring opinion in which Judge Meyer concurs; Judges Jasen and Jones dissent and vote to reverse in another memorandum.

Order affirmed.

      . Subdivision (a) of section 1174 reads:
      "Overtaking and passing school bus.
      "(a) The driver of a vehicle upon a highway outside of the city of New York upon meeting or overtaking from either direction any school bus * * * which has stopped on the highway for the purpose of receiving or discharging any school children shall stop the vehicle before reaching such school bus when there is in operation on said school bus a red visual signal * * * and said driver shall not proceed until such school bus resumes motion, or until signaled by the driver or a police officer to proceed.”

      . The City of Lockport Board of Education had also been joined as a party defendant, but the plaintiffs (the infant and her mother, who also sued derivatively) settled their case against it before trial. However, at the end of the trial, a cross claim pleaded against the board for apportionment was submitted to the jury who decided it adversely to the appellants.

      . Comparative negligence does not apply to causes of action, such as that here, accruing prior to September 1, 1975 (CPLR 1411, 1413).

      . Appellants also claim that the Trial Judge’s tolerance of attempts to prove or argue that the bus stop might more safely have been located at another point was reversible error. In our view, this too lacks merit. Most important, the Trial Judge in his charge in no way included the location of the bus stop as an element which permissibly could be considered in arriving at a determination of whether appellants were liable. Moreover, only the board of education, who alone designated the bus stop, could be liable on the theory that it was inherently unsafe (see Pratt v Robinson, 39 NY2d 554) and, since the apportionment claim against it did not succeed (n 2, supra), it must be deemed to have been rejected substantively. We also agree with the observation at the Appellate Division that no proof that the bus stop was unsafe emanated.


text:
    In the Matter of William J. Mezzetti Associates, Inc., Appellant, v State Liquor Authority, Respondent.
    Submitted September 2, 1980;
    decided September 9, 1980

      APPEARANCES OF COUNSEL

      Abraham Walters, Abraham M. Buchman, Raymond Reisler, Joel Buchman and Mark A. Koslowe for appellant.

      Warren B. Pesetsky and John J. Hyland for respondent.

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

Upon reargument, judgment reversed, with costs, and the determination of the State Liquor Authority annulled (California Retail Liq. Dealers v Midcal Aluminum, 445 US 97).

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


text:
    In the Matter of Joseph Horton, Respondent, v Richard Hongisto, as Commissioner of Correctional Services, et al., Appellants.
    Submitted August 18, 1980;
    decided September 9, 1980
   Motion to dismiss the appeal granted and the appeal dismissed as moot, without costs.


text:
    In the Matter of Arlene R. Siegel, Individually and as Guardian of Alfred R. Siegel, Appellant, v Pearl K. Siegel et al., Respondents.
    Submitted July 21, 1980;
    decided September 9, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 36).


text:
    In the Matter of General Railway Signal Company, Appellant, v New York State Division of Human Rights et al., Respondents.
    Argued September 5, 1980;
    decided September 11, 1980

      APPEARANCES OF COUNSEL

      William E. McKnight and Robb M. Jones for appellant.

      Robert D. Goodstein and Ann Thacher Anderson for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. Prohibition does not lie (Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789, 791; see Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816, 818).

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


text:
    The People of the State of New York, Respondent, v Obie Riddick, Appellant.
    Submitted September 8, 1980;
    decided September 11, 1980

      APPEARANCES OF COUNSEL

      William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (Barry A. Schwartz of counsel), for respondent.
   OPINION OF THE COURT

Upon reargument, following remand by the Supreme Court of the United States, order reversed, motion to suppress granted and case remitted to Supreme Court, Queens County, for further proceedings on the indictment (Riddick v New York, 445 US 573).

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


text:
    The People of the State of New York, Appellant, v Elena Alirex, Respondent, et al., Defendant.
    Submitted September 2, 1980;
    decided September 11, 1980
   Motion to dismiss the appeal denied.


text:
    In the Matter of Susan Brenner, Respondent, v William A. Brenner, Appellant.
    Submitted August 18, 1980;
    decided September 11, 1980
   Motion, insofar as it seeks leave to appeal from the May 26, 1977 and July 3, 1980 orders of the Appellate Division, dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion, insofar as it seeks a stay of various orders, leave to proceed as a poor person, etc., dismissed as academic.


text:
    The People of the State of New York, Respondent, v Gregory Diaz, Appellant.
    Submitted August 11, 1980;
    decided September 11, 1980
   Motion to vacate the Court of Appeals order of dismissal, dated February 7, 1980, granted and appeal reinstated. Motion for continuation of stay of execution of judgment denied. [See 49 NY2d 760.]


text:
    Susan J. Lee, Respondent, v Paul H. Lee, Appellant.
    Decided September 11, 1980
   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 (CPLR 5601, subd [b], par 2).


text:
    In the Matter of Ernest D. Davis et al., Constituting the Board of Trustees of the Incorporated Village of Walden, Appellants, v Carl Helstrom et al., Constituting the Town Board of the Town of Montgomery, Respondents.
    Submitted August 18, 1980;
    decided September 16, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (cf. Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    Charles Miller, Respondent, v Joseph Perillo et al., Defendants, and Riverbay Corp., Also Known as Co-op City et al., Appellants.
    Submitted August 25, 1980;
    decided September 16, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 11, p 42 et seq.).


text:
    Joseph Murphy, Respondent, v County of Nassau, Appellant.
    Submitted July 28, 1980;
    decided September 16, 1980
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Judge Meyer taking no part.


text:
    In the Matter of William J. Mezzetti Associates, Inc., Appellant, v State Liquor Authority, Respondent.
    Submitted September 26, 1980;
    decided October 6, 1980
   Motion by State Liquor Authority for reargument denied. Motion for a stay dismissed. Motion, in alternative, for amendment of the remittitur denied. Motion by New York City Department of Consumer Affairs for leave to file a brief amicus curiae granted, there being no other submission in opposition to the motion of the State Liquor Authority. [See 51 NY2d 761.]


text:
    Luciano Arocho et al., Plaintiffs, v Town of Brookhaven, Defendant and Third-Party Plaintiff-Appellant. New York State Environmental Facilities Corporation, Third-Party Defendant-Respondent.
    Argued September 2, 1980;
    decided October 7, 1980

      APPEARANCES OF COUNSEL

      John V. Griffin, Jr., Edward J. Hart and Bruce M. Scher for third-party plaintiff-appellant.

      Robert Abrams, Attorney-General (John M. Farrar and Shirley Adelson Siegel of counsel), for third-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (71 AD2d 635).

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


text:
    In the Matter of Police Benevolent Association of the City of Yonkers, Inc., Respondent, v New York State Public Employment Relations Board, Appellant, and City of Yonkers, Respondent.
    Argued September 2, 1980;
    decided October 7, 1980

      APPEARANCES OF COUNSEL

      Richard A. Curreri and Martin L. Barr for appellant.

      David Schlachter and Richard Hartman for petitioner-respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the Public Employment Relations Board reinstated.

While we do not agree with appellant’s contention that union complicity may be presumed upon a mere showing that a significant number of union members have engaged in a strike, we believe that the statements of union leaders herein, combined with the fact of the strike itself and the other evidence adduced at the hearing provide substantial evidence from which a rational fact finder could infer that respondent caused, instigated, encouraged or condoned a strike in violation of subdivision 1 of section 210 of the Civil Service Law. This being so, our inquiry is at an end, and the determination of the administrative agency must be upheld. (CPLR 7803, subd 4; see Matter of Purdy v Kreisberg, 47 NY2d 354, 355; Matter of Pell v Board of Educ., 34 NY2d 222, 230-232.)

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

Judgment reversed, etc.


text:
    Margie Whitehead, Appellant, v State of New York, Department of Mental Hygiene, et al., Respondents.
    Argued September 3, 1980;
    decided October 7, 1980

      APPEARANCES OF COUNSEL

      Alan J. Azzara and Edwin Jacobson for appellant.

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

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 653).

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


text:
    Jack R. Ferber, Appellant, v Sterndent Corporation et al., Respondents, et al., Defendants.
    Argued September 2, 1980;
    decided October 7, 1980

      APPEARANCES OF COUNSEL

      I. Walton Bader for appellant.

      Douglas M. Kraus and Miriam L. Siroky for respondents.
   OPINION OF THE COURT

Memorandum.

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

As the court below found, plaintiff failed to produce any evidence to support his claim that the idea which he disclosed to defendants was novel either in the abstract or as to them. In order to successfully oppose a motion for summary judgment, plaintiff must come forward with some admissible proof that would require a trial of the material questions of fact on which his claim rests. Absent a showing of novelty, plaintiff’s action to recover damages for illegal use of "confidentially disclosed ideas” must fail as a matter of law. (See Downey v General Foods Corp., 31 NY2d 56.)

Moreover, prior to any alleged use of plaintiffs idea by defendants, two patents had been issued to unrelated third parties for devices which encompassed the very concepts plaintiff alleges he disclosed to defendants. Therefore, even if we were to assume that plaintiffs idea was novel when disclosed, all novelty was lost with the issuance of these patents because they caused plaintiffs idea to fall into the public domain. (See Platzman v American Totalisator Co., 45 NY2d 910.) Therefore, summary judgment for defendants was properly granted.

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

Order affirmed.


text:
    Ludwig Klein, Respondent, v John T. O’Hagan, as Commissioner of the New York City Fire Department, et al., Appellants.
    Argued September 3, 1980;
    decided October 7, 1980

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Alexander J. Wulwick and Carolyn E. Demarest of counsel), for appellants.

      Ronald H. Shechtman for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the determination of the commission reinstated for reasons stated in the dissenting memorandum by Mr. Justice Samuel J. Silverman at the Appellate Division (70 AD2d 514, 515-516).

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


text:
    Chinatown Apartments, Inc., Appellant, v Chu Cho Lam, Respondent.
    Argued September 2, 1980;
    decided October 7, 1980
    APPEARANCES OF COUNSEL

      Arthur Birnbaum for appellant.

      Roger K. Evans and Michael D. Kaufman for respondent.
   OPINION OF THE COURT

Memorandum.

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

Upon a breach by the tenant of one of the lease provisions, petitioner landlord was entitled to serve the tenant with a "Notice of Intention to Terminate Occupancy”; and, under the terms of the lease, the tenancy would terminate automatically after service of such notice unless the tenant acted within 10 .days to cure the alleged breach. Here, so far as is material to the issue in this appeal, the notice served upon respondent tenant alleged only that a "partition” had been erected on the premises in violation of certain specific clauses in the lease. However, respondent had not in fact erected a "partition”, but rather had constructed a freestanding, cube-like structure which stood in the center of one of his rooms.

Petitioner contends that respondent should have removed his "cube” when he was served with a notice complaining of the unauthorized erection of a "partition”. It has also been suggested that any confusion regarding the nature of the offending condition within the apartment should have been dispelled when the court made an on-site inspection of the premises and permitted petitioner to amend its dispossess petition to account for the presence of "a cube-shaped wooden and plasterboard structure”. Of course, since the right to terminate the tenancy pursuant to the terms of the lease was dependent upon service of an adequate notice, the subsequent amendment of the petition, which could not operate retroactively to cure a defect in the notice, did not enhance petitioner’s right to relief. Similarly, the trial court’s observation that the "cube” constituted a violation of certain city health and safety ordinances is of no analytic consequence, since the only substantial issue before this court is the sufficiency of petitioner’s notice.

With respect to this issue, even if we were to agree with petitioner, as some of the members of the court would, that, the allegation in the notice concerning the presence of a "partition” was sufficient to apprise respondent of the condition which petitioner wished to have cured, we would nevertheless be compelled to hold that the notice was ineffective and could not serve as the predicate for an automatic termination of the tenancy. The deficiency in the notice arises from its failure to cite any specific prohibition in the lease which had been violated by the construction of the "cube”. Although several covenants of the lease were mentioned in the notice, none of the cited clauses prohibited the erection of a freestanding structure such as that built by respondent. Since respondent could not be expected to take remedial action by removing the "cube” unless his landlord first demonstrated that such remedial action was required by the lease, the omission in the notice must be considered a fatal defect. Inasmuch as service of a proper notice of intention to terminate occupancy was a condition precedent to the termination of the tenancy under the lease, the deficiency in the notice deprived petitioner of a predicate for reclaiming possession of the premises. Accordingly, the petition to dispossess was properly dismissed.

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

Order affirmed.

       In addition to its claim that, as a consequence of the unheeded notice, the tenancy had terminated automatically by operation of the lease provisions, petitioner also sought relief directly on the basis of respondent’s alleged breach of certain substantive lease covenants. The amendment to the petition clarifying the nature of the offending condition on the premises may have been indirectly helpful with- respect to this latter claim, but the outcome was not affected, since the claim was ultimately rejected by the trial court on the ground that the offending condition had been removed by the time the litigation became ripe for disposition. Petitioner has not asked this court to review this aspect of the trial court’s ruling.


text:
    Rochester Telephone Corporation, Respondent, v Green Island Construction Corporation, Appellant.
    Argued September 3, 1980;
    decided October 7, 1980

      APPEARANCES OF COUNSEL

      George A. Schell and Samuel M. Hall for appellant.

      Alexander Geiger for respondent.
   OPINION OF THE COURT

Memorandum.

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

At the close of plaintiff’s evidence, defendant moved to dismiss the complaint, and the court reserved decision. Following the return of the jury’s verdict for plaintiff, defendant made a second motion, to set aside the verdict as against the weight of the evidence. Thereupon the trial court granted both motions, and judgment was entered dismissing the complaint.

The Appellate Division, reversing on the law and the facts, held that the trial court was in error both in granting the motion to dismiss and in granting the motion to set aside the verdict. 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, although appealable, is beyond the scope of our review (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). Accordingly, as to this branch of the appeal there must be an automatic affirmance (Pfohl v Wipperman, 34 NY2d 597).

Whether there was sufficient evidence to take the case to the jury and thus to require a denial of the motion to dismiss, however, presents a question of law which we may review. On this branch of the appeal we agree with the Appellate Division that there was sufficient evidence to go to the jury on the issues both of foreseeability and of contributory negligence.

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

Order affirmed.


text:
    Robert Tumolillo, Appellant, v Mercedes Tumolillo, Respondent.
    Argued September 3, 1980;
    decided October 7, 1980

      APPEARANCES OF COUNSEL

      Sidney Siller for appellant.

      Marjory D. Fields, John C. Gray, Jr., Natalie Albert and Karin Goldman for respondent.

      Robert Abrams, Attorney-General (Robert J. Schack and Shirley Adelson Siegel of counsel), intervenor pro se.

   OPINION OF THE COURT

Memorandum.

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

We have examined those contentions of appellant husband which are available on this appeal and find them to be without merit. In the first place the Appellate Division did not hold as a matter of law that the termination of alimony in futuro is always beyond the power of the divorce court, a proposition on which we express no view; it held only that as a matter of law "[t]here is no basis in the record [in this case] for the elimination of alimony in futuro”, a determination with which we agree. Nor was it error to deny the husband’s request for an adjournment because of his asserted inability to be in court on a date which had previously been set for further hearing without objection on his part. Additionally, ample opportunity was afforded him to respond to the testimony received that day. Similarly, he cannot now be heard to complain that the trial court, in accordance with the express agreement of counsel for both parties, conducted the trial in two stages, first as to the wife’s entitlement to a divorce and second as to her entitlement to alimony (cf. CPLR 603). Finally, the husband’s assertions that the awards of alimony and counsel fees were excessive present issues of fact only which lie outside the scope of our review.

We do not consider the husband’s contentions that sections 236 and 237 of the Domestic Relations Law are unconstitutional in light of the decision of the United States Supreme Court in Orr v Orr (440 US 268). This issue was not raised in the trial court. While we are told that it was raised by the husband in the Appellate Division, no notice thereof was then given the Attorney-General (CPLR 1012, subd [b]; Executive Law, § 71), nor did the Appellate Division entertain or address the husband’s constitutional contentions (71 AD2d 625). In this circumstance the constitutional arguments will not be considered in our court (Di Bella v Di Bella, 47 NY2d 828).

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

Order affirmed.


text:
    In the Matter of Travelers Indemnity Company, Respondent, v Patricia Kammer, as Executrix of Donald Kammer, Deceased, Respondent, and Commercial Union Assurance Companies, Appellant.
    Submitted September 4, 1980;
    decided October 7, 1980

      APPEARANCES OF COUNSEL

      Joseph C. Scibilia for appellant.

      Francis J. Donovan for petitioner-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (72 AD2d 817) and on the authority of Matter of Liberty Mut. Ins. Co. (Stollerman) (50 NY2d 895).

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


text:
    Michael Florence et al., Doing Business as National Record Plan, Appellants, v Merchants Central Alarm Co., Inc., Respondent.
    Argued September 3, 1980;
    decided October 7, 1980

      APPEARANCES OF COUNSEL

      Milton B. Pfeffer for appellants.

      Robert L. Horkitz for respondent.
   OPINION OF THE COURT

Memorandum.

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

The contract provided that "The sole duty of the Contractor is to notify the Police Department and the Subscriber by calling on the telephone if a signal is received in the Central Station which might indicate illegal entry” (par 4) and that "the Contractor assumes no responsibility whatsoever for the condition of said Police Alarm transmitter or for any loss sustained by the Subscriber through burglary or through any other cause, during the period within which the contract is in force. It is agreed that the Contractor is not an insurer and that the payments hereinbefore named are based solely on the value of the service described and, in case of failure to perform such service and a resulting loss, the Contractor’s liability hereunder shall be limited to and fixed at the sum of Fifty Dollars ($50.00) as liquidated damages and not as a penalty, and this liability shall be exclusive” (par 7).

Despite its erroneous reference to "liquidated damages” (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 197), defendant’s contract, unlike the sprinkler contract involved in Melodee Lane Lingerie Co. v American Dist. Tel. Co. (18 NY2d 57), is not one "affecting real property” or for "services rendered in connection with the construction, maintenance and repair of real property” within the meaning of section 5-323 of the General Obligations Law. Defendant was, therefore, free to limit its liability (ibid.; Ciofalo v Vic Tanney Gyms, 10 NY2d 294) without offering a greater liability for a greater charge, subject only to the requirement that the limitation be not so obscured (as, for example, a baggage check not in usual contract form, see Klar v H. & M. Parcel Room, 270 App Div 538, affd 296 NY 1044; Howard v Handler Bros. & Winell, 279 App Div 72, affd 303 NY 990) as to make it probable that it would escape plaintiffs’ attention. Here the type in which the contract was printed is uniform in size and contained entirely on the face of one sheet of paper, and there are no paragraph headings or subtitles that could mislead a reader. If plaintiffs read the contract at all they were aware of the limitation, and the law’s teaching since Pimpinello v Swift & Co. (253 NY 159) has been that if they could read it, the fact that they did not is immaterial, absent evidence of fraud.

In this commercial setting, where the language of the limitation is clear, there is no necessity to "resort to a magnifying glass and lexicon” (see Gross v Sweet, 49 NY2d 102, 107), no governing statute and no special relationship between the parties that would warrant relieving plaintiffs of their contract. The Appellate Division’s direction of summary judgment for plaintiffs in the amount of $50 was, therefore, correct.

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

Order affirmed.


text:
    In the Matter of Donald Barroncini et al., Respondents, v Carmen Shang, as Acting Commissioner of the New York State Department of Social Services, Respondent, and Antoinette Hyer, as Commissioner of the Oneida County Department of Social Services, Appellant.
    Submitted August 25, 1980;
    decided October 7, 1980
   Motion by Antoinette Hyer for leave to appeal dismissed upon the ground that she failed to appeal to the Appellate Division from the adverse judgment of Supreme Court (Cohen and Karger, Powers of the New York Court of Appeals, § 94).


text:
    In the Matter of Colette Guarno, Respondent, v Carmen Shang, as Acting Commissioner of the New York State Department of Social Services, Respondent, and Antoinette Hyer, as Commissioner of the Oneida County Department of Social Services, Appellant.
    Submitted August 25, 1980;
    decided October 7, 1980
   Motion by Antoinette Hyer for leave to appeal dismissed upon the ground that she failed to appeal to the Appellate Division from the adverse judgment of the Supreme Court (Cohen and Karger, Powers of the New York Court of Appeals, § 94).


text:
    Inland Credit Corporation, Respondent, v Inspiration Enterprises, Inc., et al., Appellants.
    Submitted August 25, 1980;
    decided October 7, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Chief Judge Cooke taking no part.


text:
    Lenora Pasternack, Appellant, v Norma Sokoloff, Respondent.
    Submitted August 18, 1980;
    decided October 7, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    Edward Rager, Appellant, v Martin Evans, as a Justice of the Supreme Court, et al., Respondents.
    Submitted August 18, 1980;
    decided October 7, 1980
   Motion for leave to appeal dismissed as untimely (CPLR 5513, subd [b]).

Chief Judge Cooke taking no part.


text:
    Carlos Sinhogar et al., Appellants, v Carol Parry, Individually and as Assistant Administrator of Special Services for Children, et al., Respondents.
    Submitted August 11, 1980;
    decided October 7, 1980
   Motion to vacate the Court of Appeals order of dismissal dated July 1, 1980 denied. [See 50 NY2d 1022.]


text:
    William Tockash et al., Respondents, v Charles E. Rockwell, Appellant.
    Submitted August 11, 1980;
    decided October 7, 1980
   Motion for leave to appeal and on the court’s own motion, appeal taken as of right dismissed, without costs, each upon the grounds: (1) that no appeal lies from the order of the Appellate Division insofar as it dismissed an appeal from the default judgment (CPLR 5511); and (2) that the order of the Appellate Division insofar as it affirmed an order denying a motion to vacate the default judgment does not finally determine the action within the meaning of the Constitution.


text:
    Albert Horton, Appellant, v Charles Smith, Respondent.
    Argued September 5, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      Joseph T. Kehoe for appellant.

      John Rittinger for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that the police officer’s testimony as to the point of impact was "without objection on the part of plaintiff”.

When a timely objection is not made, the testimony offered is presumed to have been unobjectionable and any alleged error considered waived. (CPLR 4017; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4017.05, at pp 40-87 to 40-88.)

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

Order affirmed.


text:
    Fashion Envelopes, Inc., Appellant, v Samuel Minsky, Appellant, and Michael Losquardo, Respondent. Samuel Minsky, Appellant, v Michael Losquardo, Respondent.
    Argued September 8, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      Sylvain R. Jakabovics for Fashion Envelopes, Inc., appellant.

      Daniel W. Krasner and Paul J. Dillon for Samuel Minsky, appellant.

      Samuel Kaufman and Beatrice Mamet Wagman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 514).

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


text:
    The People of the State of New York, Respondent, v Dorothy Williamson, Appellant.
    Argued September 4, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      Michael S. Winokur for appellant.

      John J. Santucci, District Attorney (Jeffrey A. Granat of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The only contention advanced by appellant is that she was subjected to a custodial interrogation, and that accordingly, in the absence of having been advised of her constitutional preinterrogation rights, all statements made by her should have been suppressed. Inasmuch as the determination by the suppression court that there was no custodial interrogation (generally a factual issue) has been affirmed by the Appellate Division we could overturn it only if we were to conclude as a matter of law that the proof was insufficient to establish that the interrogation was noncustodial (cf. People v Oden, 36 NY2d 382). This we cannot do on the record before us, particularly inasmuch as the police came to appellant’s home at her invitation.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Charles Williams, Appellant.
    Argued September 8, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      Brent K. Olsson and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (William Schrager of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

There was no error in the People’s cross-examination of defendant’s alibi witnesses with reference to their failure before trial to have come forward with the substance of their exculpatory testimony (People v Dawson, 50 NY2d 311). Nor is there any merit to the assertion that the sentencing court imposed a heavier sentence on defendant because he had chosen to go to trial rather than disposing of his case by plea as did his codefendants. The language of the sentencing court from which defendant would draw that conclusion was no more than a statement that the trial "afforded the Court an opportunity to get the background of the defendant and his involvement with the law” — information which was adverse to defendant and properly taken into account in determining the sentence.

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

Order affirmed.