author: Kaye, J.

text:
    In the Matter of the Estate of Bertha A. Collins, Deceased.
    Argued November 23, 1983;
    decided December 20, 1983

      POINTS OF COUNSEL

      Samual J. Civiletto for William G. Mayne, appellant.
    Sufficient proof was adduced before the Surrogate’s Court for the admission of the last will and testament of the decedent to probate. (Matter of Kellum, 52 NY 517; Matter of Sizer, 129 App Div 7, 195 NY 528; Matter of Pepoon, 91 NY 255; Matter of Katz, 277 NY 470; Matter of Santangelo, 10 Misc 2d 1002; Matter of Pascal, 309 NY 108.)

      Paul H. Reid, Jr., for Robert G. Hoffman and another, respondents.
    I. SCPA 1405 (subd 3) requires that if the attesting witnesses were alive and well, at least one of them must present evidence proving the due execution of a will. (Matter of Bright, 20 Misc 2d 789, 12 AD2d 745, 13 AD2d 629; Matter of Kleefeld, 55 NY2d 253.) II. Even disregarding the impact of SCPA 1405, the proof was totally insufficient to support probate of the will here. (Woolley v Woolley, 95 NY 231; Wilson v Hetterick, 2 Bradf 427; Wyman v Wyman, 118 App Div 109; Matter of Lynch, 57 Misc 2d 268; Matter of Daly, 93 Misc 2d 241.)
   OPINION OF THE COURT

Kaye, J.

A will may be admitted to probate notwithstanding the failed or imperfect memory of both attesting witnesses.

Bertha A. Collins died on June 4, 1981 leaving as her sole distributees respondents, Richard and Robert Hoffman, her nephews. The Hoffmans offered a 1951 will for probate, under which Mrs. Collins left her entire estate to her husband, who had predeceased her. Appellant, William Mayne, objected and offered a will dated January 17,1977, in which Mrs. Collins left $1,000 to each of her nephews, $100 to her sister-in-law, and the remainder to appellant, her “friend and advisor.” The will contained a printed form attestation clause, beneath which appeared the signatures of two witnesses, Mary Pedaci and Richard H. Skellen.

On September 11, 1981, at respondents’ request, a preliminary examination of witnesses was held before Surrogate Aldo L. Di Florio. Appellant produced five witnesses: the two attesting witnesses, a physician, and two persons supporting the authenticity of Mrs. Collins’ signature on the will. Mary Pedaci testified that, in January, 1977, she was the assistant manager of the Ransomville branch of Marine Midland Bank. Shown the 1977 will, she identified both her signature and that of Richard Skellen, but had no recollection of the circumstances surrounding the execution of the will. Richard Skellen, the branch manager, testified that he recalled signing his name to the document, that both of the attesting witnesses “were right there,” and that he had in his mind “an older lady.” Skellen, who had witnessed a number of wills previously, further recalled that he had read the heading on the instrument, “Will and Testament.” Otherwise he had no recollection of the event.

Dr. Clark Triftshauser, decedent’s physician, testified that on January 17, 1977 he examined Mrs. Collins to determine her mental and physical condition because she told him she intended to make a will that day, and he found her condition good. Edith Stanish, a legal secretary and notary who had witnessed Mrs. Collins’ signature in 1976, testified that her signature on the 1977 will was genuine, and Dorothy Eadie, a document examiner, rendered her expert opinion that the signature on the will was genuine.

Respondents moved to dismiss appellant’s petition to probate the 1977 will on the ground that he had not presented prima facie proof of due execution. The court denied the motion, holding that the formalities of due execution can be established despite the imperfect memory of both attesting witnesses. Relying on the attestation clause, the genuineness of the three signatures, and the testimony of the physician, the court found that the 1977 will had been duly executed. The Appellate Division reversed and dismissed appellant’s petition, holding that SCPA 1405 (subd 3) requires that at least one of the attesting witnesses confirm that the testatrix signed the instrument and intended it to be her will.

This appeal focuses on the import of SCPA 1405 (subd 3), which came into being September 1, 1967, with the adoption of the SCPA. The section provides: “Where an attesting witness has forgotten the occurrence or testifies against the execution of the will and at least 1 other attesting witness has been examined the will may be admitted to probate upon the testimony of the other witness or witnesses and such other facts as would be sufficient to prove the will.” The issue of first impression which is presented is whether, given SCPA 1405 (subd 3), a will may be admitted to probate where both attesting witnesses do not recollect the events surrounding execution of the will but the court is otherwise satisfied from all of the evidence that the will was properly executed. We conclude that the Legislature by this section did not intend the radical departure from prior statutory and decisional law urged upon us by respondents, and that a will may be admitted to probate even if both attesting witnesses cannot recall the will execution.

Neither SCPA 1405 nor its predecessor, section 142 of the Surrogate’s Court Act, directly addresses a situation where both attesting witnesses forget the details of the will execution. Section 142 of the Surrogate’s Court Act contained two paragraphs, each of which permitted the court to dispense with the fundamental statutory requirement that at least two of the attesting witnesses be examined. The first paragraph allowed the court to admit a will to probate on the testimony of one witness where the other witness was dead, incompetent, physically or mentally disabled, or absent from the State,, and provided for the taking of an out-of-State witness’s testimony by commission. The second paragraph provided: “If all the subscribing witnesses to a written will be dead, or incompetent, by reason of lunacy or otherwise, to testify, or unable to testify, or are absent from the state and their testimony has been dispensed with as provided in this section, or if a subscribing witness has forgotten the occurrence, or testifies against the execution of the will, or was not present with the other witness at the execution of the will; the will may nevertheless be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action.”

For more than a century, the courts have consistently interpreted section 142 of the Surrogate’s Court Act and its forbears to permit probate even where the attesting witnesses did not recall the event or testified against the will. “If the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution or what took place at the time.” (Matter of Kellum, 52 NY 517, 519; see, also, Matter of Katz, 277 NY 470; Matter of Sizer, 129 App Div 7, affd 195 NY 528; Matter of Cottrell, 95 NY 329, 333 [“execution of a will might be established by competent evidence, even against the positive testimony of the subscribing witnesses thereto”]; Matter of Pepoon, 91 NY 255, 259; Rugg v Rugg, 83 NY 592; Brown v Clark, 77 NY 369, 372; Trustees of Theol. Seminary v Calhoun, 25 NY 422; Orser v Orser, 24 NY 51, 52 [will may be admitted to probate “although none of the subscribing witnesses are able to swear, from recollection, that the formalities required by the statute were complied with”]; Lewis v Lewis, 11 NY 220, 224.) The purpose was to avoid the injustice otherwise resulting when witnesses honestly forgot the event or testified falsely, and there was otherwise sufficient proof to establish the will. (2A Warren’s Heaton, Surrogates’ Courts, § 177, par l[a].)

While the formalities of due execution did not have to be proved by the testimony of the attesting witnesses, witnesses were not excused from testifying because of failed memory or testimony against the will. Unless the testimony was otherwise dispensed with by statute, attesting witnesses still had to be “examined,” but a will could be admitted to probate even if, upon that examination, the witness had no recollection of the formalities of the execution, or testified against the will.

Respondents suggest that, in enacting SCPA 1405, the Legislature intended a major change. They argue that where both of the attesting witnesses are available to testify, at least one of them now must give testimony supporting due execution of the will or it cannot be admitted to probate. By this interpretation, a will could be defeated, however abundant the remaining proof, if both witnesses honestly forgot the occurrence or dishonestly testified that their memories failed. We do not believe that by the unheralded amendment to section 142. of the Surrogate’s Court Act the Legislature intended to sweep away the formidable body of law that preceded it.

Significantly, in all other respects the changes in section 142 of the Surrogate’s Court Act wrought by SCPA 1405 were minor and clarifying. The new SCPA 1405 divides the two paragraphs of section 142 into four subdivisions. The first two subdivisions of SCPA 1405 make no change in the substance of the first paragraph of section 142, and the fourth subdivision adopts provisions contained in the second paragraph of the former statute. We reject respondents’ contention that, without comment to this effect, the Legislature in the third subdivision of SCPA 1405 revolutionized prior practice. We believe that, consistent with the balance of the section, in subdivision 3 the Legislature also made only a clarifying amendment.

Under section 142 of the Surrogate’s Court Act, a will could be established upon proof of handwriting and other circumstances “if a subscribing witness has forgotten the occurrence, or testifies against the execution of the will”. Read literally, if one attesting witness forgot the occurrence, the statute dispensed with the necessity for examining any other attesting witness. By its revision in subdivision 3 the Legislature has made clear that the testimony of attesting witnesses may not be dispensed with merely because of the lapsed memory of one witness. Even where one attesting witness cannot recall the circumstances of execution, still at least one other attesting witness must be examined (see SCPA 1404, subd 1), and all relevant testimony elicited. The will may then be admitted to probate if the proof is sufficient to establish the will.

This interpretation is supported by the sparse legislative history. In its Memorandum to Members of the New York State Legislature, the Temporary Commission on Estates explained the amendment to section 142 with the following cursory comment: “The language of the provision permitting the court to dispense with the testimony of an attesting witness has been clarified” (McKinney’s Session Laws of NY, 1966, p 2773). In its final report, the commission noted: “The second paragraph §142 has been amended. It presently provides that where an attesting witness ‘has forgotten the occurrence or testifies against the execution of the will or was not present with the. other attesting witness at the execution of the will’, the will may be admitted to probate upon proof of handwriting and certain other circumstances. The section has been amended to require the testimony of the remaining attesting witness or witnesses and such other facts as would be sufficient to prove the will.” (Fifth Report of Temporary Comm on Estates, Legis Doc No. 19, 1966, Appendix M, p 1092; see, also, 2A Warren’s Heaton, Surrogates’ Courts, § 177, par 4[c], pp 31-45; and 1 Harris, NY Estates Prac Guide [3d ed], § 254, pp 482-483, both commentators so reading the amendment and concluding that a will can be probated despite the lapsed memory of both attesting witnesses.)

To be sure, the testimony of the attesting witnesses is entitled to great weight (Orser v Orser, 24 NY 51, 52, supra). Their failure to recollect the event may be significant in determining whether the formalities of execution were followed (Woolley v Woolley, 95 NY 231). A failure of their recollection intensifies the care and vigilance that must be exercised in examining the remaining evidence. (Matter of Kellum, 52 NY 517, 519, supra.)

Here, given the evidence, we cannot say that the Surrogate erred as a matter of law in admitting the will to probate. Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for a determination of whether the evidence is sufficient to prove the will.

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

Order reversed, with separate bills of costs payable out of the estate to all parties appearing separately and filing separate briefs, and matter remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the opinion herein.

      . The attestation clause provided: “We, whose names are hereto subscribed, Do Certify that on the 17th day of January 1977 the testatrix above named, subscribed her name to this instrument in our presence and in the presence of each of us, and at the same time, in our presence and hearing, declared the same to be her last Will and Testament, and requested us, and each of us, to sign our names thereto as witnesses to the execution thereof, which we hereby do in the presence of the testatrix and of each other, on the day of the date of the said Will, and write opposite our names our respective places of residence.”

      . Section 142 in relevant part, traces back to section 2620 of the Code of Civil Procedure, which similarly did not mention the situation where all the attesting witnesses suffer a lapsed memory. Like section 142, section 2620 permitted a will to be probated despite or against the testimony of one attesting witness upon proof of handwriting and circumstances sufficient to prove the will. The Revised Statutes that preceded the code contained no provision regarding the lapsed memory of attesting witnesses, but permitted other proof to establish the will where one or more subscribing witness was unavailable. (See 2 Rev Stat of NY [1st ed, 1836], part II, ch VI, tit I, §§ 13, 16.)

      . While the statutes spoke of the need to “examine” attesting witnesses, there was no definition of what constitutes the requisite examination. Since a will might be admitted to probate even if the attesting witness had no recollection of the execution or testified against the will, it is apparent that the requirement was fulfilled when the witnesses took the stand and related what they knew of the circumstances. (Cf. Matter of Huber, 181 App Div 635.)


source: Caselaw Access Project

author:
      Per Curiam.
     Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Charles F., Appellant.
    Argued October 25, 1983;
    decided December 20, 1983

      POINTS OF COUNSEL

      J. Michael Jones and Dennis R. Dawson for appellant. I.
    The State’s conduct of criminal trials, where defendant is subject to imprisonment upon conviction, violates the due process clause of the Fourteenth Amendment when such trials are presided over by Village and Town Justices who are not attorneys. (Matter of Legal Aid Soc. v Scheinman, 53 NY2d 12; Matter of Murchison, 349 US 133; Argersinger v Hamlin, 407 US 25; North v Russell, 427 US 328; Estes v Texas, 381 US 532; Rideau v Louisiana, 373 US 723; People v De Lucia, 20 NY2d 275; People v McIntyre, 31 AD2d 964; Oregon v Hass, 420 US 714.) II. The constitutionality of the New York criminal court system which grants authority to nonlawyer Judges to preside over misdemeanor cases, with the possible resulting criminal record and/or incarceration, can only be preserved by construing CPL 170.25 (subd 1) as providing divestiture on defendant’s motion as a matter of right. (Matter of Legal Aid Soc. v Sheinman, 53 NY2d 12; People v Skrynski, 42 NY2d 218; Matter of Simpson v Swartwood, 69 AD2d 954; People v Dean, 96 Misc 2d 781; North v Russell, 427 US 328; People v Nieves, 36 NY2d 396; People v Epton, 19 NY2d 496, cert den sub nom. Epton v New York, 390 US 29; People v Finkelstein, 9 NY2d 342; Matter of Bell v Waterfront Comm., 20 NY2d 54.) III. CPL 170.15 does not provide an adequate alternative to CPL 170.25. (Matter of Legal Aid Soc. v Scheinman, 73 AD2d 411.)

      Theodore E. Wiggins, Jr., District Attorney, for respondent.
    I. Where no specific or substantial error exists, defendant lacks standing to complain of a denial of due process. (North v Russell, 427 US 328; People v Rivera, 39 NY2d 519; People v Satloff 56 NY2d 745; People v Jones, 55 NY2d 771; People v Egan, 72 AD2d 239; People v Jones, 81 AD2d 22.) II. A defendant subject to imprisonment is not denied due process of law when his trial is conducted by a Justice who is not an attorney. (Kinsella v Singleton, 361 US 234; Matter of Murchison, 349 US 133; North v Russell, 427 US 328; Colten v Kentucky, 407 US 104; Coolidge v

      New Hampshire, 403 US 443; Missouri v Lewis, 101 US 22; Francis v State of Maryland, 459 F Supp 163; McGowan v Maryland, 366 US 420; People v Skrynski, 42 NY2d 218.) III. CPL 170.25 provides for discretionary divestiture of jurisdiction by indictment where defendant is charged with a crime, and thereby provides an adequate assurance of due process of the law. (People v Rosenberg, 59 Misc 342; North v Russell, 427 US 328; Goltra v Weeks, 271 US 536; People v Mandrachio, 79 AD2d 278; Stein v New York, 346 US 156.)

      Rene H. Reixach for Genesee Valley Chapter, New York Civil Liberties Union and another, amici curiae.

    An absolute right to choose trial before a lawyer Judge is required by due process where a defendant is subject to incarceration upon conviction. (People v Skrynski, 42 NY2d 218; Armstrong v Manzo, 380 US 545; Matter of Murchison, 349 US 133; Powell v Alabama, 287 US 45; Bruton v United States, 391 US 123; Jackson v Denno, 378 US 368; Johnson v Zerbst, 304 US 458; Gideon v Wainwright, 372 US 335; Argersinger v Hamlin, 407 US 25; People v Witenski, 15 NY2d 392.)
   OPINION OF THE COURT

Per Curiam.

Defendant has been found guilty of conduct which if done by an adult would constitute the crimes of menacing (Penal Law, § 120.15) and trespassing (Penal Law, § 140.05), offenses punishable by imprisonment. After a jury trial before the Conesus Town Court he was adjudicated a youthful offender and sentenced to a term of probation. His adjudication was affirmed subsequently by Livingston County Court. On this appeal he contends that his constitutional due process right to a fair trial has been violated because the charges were prosecuted before a lay Justice.

In People v Skrynski (42 NY2d 218) we held that the practice of employing laymen as Town and Village Justices was authorized by the State Constitution and that it did not violate the requirements of the Federal Constitution, citing North v Russell (427 US 328). In North, the appellant contended that an accused misdemeanant, facing possible incarceration, is entitled in all cases to trial before a law-trained Judge. Without passing on appellant’s claim, the Supreme Court determined that as long as an accused who is initially tried before a nonlawyer Judge has an effective alternative of a criminal trial before a court with a traditionally law-trained Judge or Judges, there is no violation of the due process clause of the Federal Constitution. We noted in Skrynski that CPL 170.25 provides such an effective alternative by establishing a discretionary procedure to divest town and village courts, of, and remove to a superior court, the power to try and determine a criminal case.

In Skrynski defendant had not moved for removal pursuant to CPL 170.25. In the present case defendant did, alleging in his motion papers that he had an “absolute right to be tried before a lawyer judge.” No other reason for removal nor any claim of possible prejudice was stated. County Court denied defendant’s applications. In this post-trial appeal, defendant assigns no trial errors requiring reversal nor any specific prejudice resulting from the conduct of .the trial by a lay Judge. Indeed, the District Attorney claims that defendant did not register a single objection or protest during the trial. Thus, defendant neither anticipated any errors by reason of his trial before a lay Judge nor suffered any. His claim is the same as that advanced in Skrynski that he is entitled to a law-trained Judge, in any event, if the possibility of incarceration exists upon conviction of the charges and that the motion to remove necessarily had to be granted.

A defendant is constitutionally entitled to receive a fundamentally fair trial (see North v Russell, supra, at p 337) but the mere allegation that a Judge lacks legal training does not mandate removal. A defendant has no absolute due process right under New York or Federal law to trial before a law-trained Judge and defendant having asserted no other cause for removal here, County Court properly denied his pretrial motion and affirmed the judgment entered after trial.

Accordingly, the order of County Court should be affirmed.

Kaye, J.

(dissenting). While lay Judges unquestionably make a significant, valued contribution to the functioning of our judicial system, defendants facing imprisonment, with a complex array of constitutional and statutory rights, must have the option to be tried before law-trained Judges. This position is compelled by the holding of the United States Supreme Court in North v Russell (427 US 328), and consistent with the decision of this court in People v Skrynski (42 NY2d 218, 221).

In May, 1981 three informations were issued by the Conesus Town Court, charging appellant with criminal mischief in the fourth degree (a class A misdemeanor), menacing (a class B misdemeanor), and trespass (a violation). If convicted, he faced incarceration for up to one year. Given the charges, appellant had the constitutional right to representation by counsel, and to have such counsel assigned at public expense if necessary (CPL 170.10, subd 3, par [c]), and he was by law entitled to a trial by jury (Baldwin v New York, 399 US 66, 73-74; People v Dargan, 27 NY2d 100,102, cert den 400 US 920). Appellant pleaded not guilty and demanded a jury trial. Through counsel, he filed a demand to produce together with motions for Brady materials, a bill of particulars, and a Sandoval hearing. These were all returnable in the Conesus Town Court, where neither Judge was law trained.

Appellant also moved in County Court for an order removing the action to a court where the Judges must be law trained. The basis for appellant’s motion was that, as he had been charged with offenses carrying potential penalties of up to one year’s imprisonment, he had an absolute right to be tried before a lawyer Judge.

In January, 1982, the County Court denied appellant’s motion. In its memorandum decision, the court stated that, unlike the defendant’s rights to trial de novo in North v Russell (427 US 328, supra), which was “absolute, unconditional and available in all instances,” the New York removal procedure under CPL 170.25 does not entitle a defendant to removal as of right but rather requires a showing of good cause and rests with the discretion of the County Court. The fact that appellant was charged with offenses that could result in incarceration did not, in the court’s view, constitute the “good cause” required for removal under CPL 170.25, since this court in People v Skrynski (42 NY2d 218, supra) and Matter of Legal Aid Soc. v Scheinman (53 NY2d 12) declined to rule that a lawyer Judge is required in such circumstances.

Appellant proceeded to trial in Town Court before a jury and lay Judge. No record was made. In March, 1982, he was convicted of menacing and, having been adjudicated a youthful offender, was placed on one year’s probation, a violation of which would in itself have been punishable by incarceration. The County Court affirmed the conviction “in accordance with” its earlier decision denying appellant’s removal motion, and we granted leave to appeal.

The conclusion reached by the County Court is not dictated by our prior decision in People v Skrynski (42 NY2d 218, supra) or Matter of Legal Aid Soc. v Scheinman (53 NY2d 12, supra). In Skrynski, on appeal from a conviction and sentence of incarceration by a lay Judge, we concluded that “there is no evident Federal infirmity in the New York State system of town and village courts with lay Justices” because the procedure to remove a case under CPL 170.25 provided the “effective alternative of a criminal trial before a court with a traditionally law-trained Judge” required by North v Russell (supra; People v Skrynski, 42 NY2d 218, 221, supra). But the defendant in Skrynski had not requested removal, so there was no basis for our holding that removal to a court with a law-trained Judge would not have been available to him. In Scheinman, because of the procedural posture of the case, we did not reach the issue of the constitutionality of trial before a lay Judge when a defendant facing incarceration requests, and is denied, removal under CPL 170.25. (Matter of Legal Aid Soc. v Scheinman, 53 NY2d 12, 16, supra.) The issue clearly is presented here.

As this case demonstrates, the removal procedure provided by CPL 170.25 is not an “effective alternative of a criminal trial before a court with a traditionally law-trained Judge,” unless that statute is read to require removal upon request of a defendant where incarceration is an available penalty. The statute should be so read: the threat of imprisonment should itself constitute “good cause” for removal, and denial of a request for removal in these circumstances should be deemed an abuse of discretion under CPL 170.25.

Appellant, facing the possible deprivation of his liberty, had the right to trial before a law-trained Judge (see North v Russell, 427 US 328, supra). The right to effective assistance of counsel and the right to trial by jury, both so jealously guarded, lose force without a law-trained Judge to insure that motions are disposed of in accordance with the law, that evidentiary objections are properly ruled on, and that the jury is correctly instructed. Lay Judges are an important segment of the judicial system of this State. But “a lay person, regardless of his educational qualifications or experience, is not a constitutionally acceptable substitute for a member of the Bar.” (People v Felder, 47 NY2d 287, 293 [right to law-trained counsel]). Because of the technical knowledge required to insure that defendants facing imprisonment are afforded a full measure of the rights provided to them, use of non-law-trained Judges is a procedure that “involves such a probability that prejudice will result that it is deemed inherently lacking in due process.” (See Estes v Texas, 381 US 532, 542-543.) No particular trial error need be shown.

The considerations favoring law-trained Judges are all the more compelling where, because of the nature of the charges, a jury trial has been provided by law. While lay Judges bring a welcome sense of community values and practical wisdom to the courtroom, when a trial is conducted before a jury, those perspectives are furnished by the jury. The Judge’s role in a jury trial is necessarily more technical. The Judge must assure that the rules of evidence are complied with, and that the jury is correctly instructed on the law. Despite the courses prescribed for nonlawyer Town and Village Justices, their training in the law, and especially their exposure to the complexities of a criminal jury trial, do not approach a law school education and experience at the Bar.

In view of the requirements and discretionary nature of a motion under CPL 170.25, that procedure, as it stands, “requires too much and protects too little.” (Ward v Village of Monroeville, 409 US 57, 61.) In keeping with our policy of construing statutes, if possible, so as to uphold their constitutionality (People v Nieves, 36 NY2d 396, 400; Matter of Bell v Waterfront Comm,., 20 NY2d 54, 62; McKinney’s Cons Laws of NY, Book 1, Statutes, § 150, subd c), we should construe CPL 170.25 to provide for mandatory removal of cases to County Courts when requested by defendants who are scheduled to proceed to trial before lay Judges in Town or Village Courts on charges which could lead to imprisonment. (See Silberman, Non-Attorney Justice: A Survey and Proposed Model, 17 Harv J Legis 505, 543.) As such, the order of the County Court herein was an abuse of discretion under CPL 170.25.

The argument that it would be difficult throughout the State to find law-trained persons to serve as Judges cannot preclude what is constitutionally required. Indeed, this court rejected a similar argument regarding the assignment of counsel in People v Witenski (15 NY2d 392, 397-398): “The dissenting opinion in this court suggests that a requirement for assignment of counsel in Special Sessions Courts is impracticable because the Judges would have difficulty in finding lawyers to assign. We do not think this fear well grounded. There are about 54,000 registered lawyers in this State, or one lawyer to every 300 inhabitants. Each county of the State, including Rockland County where these defendants were sentenced, has a substantial number of resident attorneys and the New York State Bar Association has 96 members living in that county. In the Village of Spring Valley, where this Justice of the Peace has his office, there are 40 resident lawyers”. The dissenters there also argued unsuccessfully that the requirement of assigned counsel in outlying lower courts would be a change in the criminal process “unworkable without extensive implementation” and “accompanied by an appropriation of public money” and ought therefore to be in the form of a legislative enactment. (15 NY2d, at p 398.) Any similar argument here that a requirement of law-trained Judges must come from the Legislature should likewise be rejected.

Accordingly, the order of the County Court should be reversed, appellant’s adjudication should be vacated, and the case should be remitted to County Court with instructions to grant appellant’s motion to remove pursuant to CPL 170.25.

Judges Jasen, Jones, Meyer and Simons concur in Per Curiam opinion; Judge Kaye dissents and votes to reverse in a separate opinion in which Chief Judge Cooke and Judge Wachtler concur.

Order affirmed.

      . CPL 170.25 (subd 1) provides: “At any time before the entry of a plea of guilty to or commencement of a trial of a local criminal court accusatory instrument containing a charge of misdemeanor, a superior court having jurisdiction to prosecute such misdemeanor charge by indictment may, upon motion of the defendant made upon notice to the district attorney, showing good cause to believe that the interests of justice so require, order that such charge be prosecuted by indictment and that the district attorney present it to the grand jury for such purpose.”

      . While the majority rests its holding on the fact that no specific trial errors were identified, this court has not in the past hesitated to recognize important individual rights irrespective of a showing of particular prejudice by defendant. (See, e.g., People v Jones, 47 NY2d 409, 417, cert den 444 US 946; People v Felder, 47 NY2d 287, 295-296; People v Crimmins, 36 NY2d 230, 238; People v De Lucia, 20 NY2d 275, 280.)

      . Nonlawyer Town and Village Justices are required to attend training courses prescribed by the chief administrator of the courts (UJCA 105, subd [a]; Judiciary Law, § 212, subd 1, par [r]). The basic training consists of six days of classes, only three of which are spent on courses relating to criminal cases. Successful completion of the training requires attendance at only 80% of such classes. (22 NYCRR 17.2.) This is hardly a substitute for the education and experience of a lawyer. In the proposed revision of 22 NYCRR 17.2 of the Rules of the Chief Judge relating to the education and training of Town and Village Justices, even lawyer-Justices will be required to supplement their skills by attending training courses.

      . On a motion pursuant to CPL 170.25, defendant has the burden to show good grounds for removal. (People v Cannizzario, 17 Misc 2d 839,841.) A defendant must show that his case presents particularly intricate questions of law or fact, that property rights are involved, that the decision will have far-reaching precedential value, or that there are particular facts that show defendant could not get a fair trial in the lower court. (People v Rosenberg, 59 Misc 342, 343-344; Matter of Hewitt, 81 Misc 2d 202, 204.) The court’s decision on a CPL 170.25 motion is seen as an exercise of discretion normally not subject to appellate review. (Matter of Cross [Kiliani], 275 App Div 719, app dsmd 299 NY 680, cert den 338 US 859.)

      . We do not now pass on whether other legislative schemes to provide for the mandatory right to a trial by a law-trained Judge at some point in the judicial process would also be constitutional. Under the present statutory scheme, CPL 170.25 must be interpreted according to this opinion in order to meet Federal constitutional standards.


author: Kaye, J. Simons, J.

text:
    In the Matter of Century Operating Corporation, Appellant, v Emanuel Popolizio, as Chairman of the New York City Conciliation and Appeals Board, Respondent.
    Argued November 21, 1983;
    decided December 20, 1983

      POINTS OF COUNSEL

      Jeffrey L. Braun, Elizabeth A. Shollenberger, Perry L. Lubov and Susan J. Schwartz for appellant.
    I. The determination of the Conciliation and Appeals Board was erroneous as a matter of law and without rational basis or warrant in the record. (Matter of David v New York City Conciliation & Appeals Bd., 59 NY2d 714; Halprin v 2 Fifth Ave. Co., 55 NY2d 937; O’Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50; Farrell Lines v City of New York, 30 NY2d 76; Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211; Matter of Loew’s Buffalo Theatres, 233 NY 495; Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16; Loba v Carey, 29 NY2d 302; Heller v Pope, 250 NY 132.) II. The tenant’s unreasonable delay, to the prejudice of the present landlord, bars the relief which he has been granted. (Marcus v Village of Mamaroneck, 283 NY 325; Lincoln Sq. Apts. v Davis, 58 Misc 2d 292, 64 Misc 2d 859; Alcoa Residences v Association of Tenants of Lincoln Towers, 28 AD2d 831; Seligson v Weiss, 222 App Div 634; Meyer v Meyer, 74 AD2d 945; Schreier v Cummings, 250 App Div 808; Feldman v Metropolitan Life Ins. Co., 259 App Div 123; Groesbeck v Morgan, 206 NY 385; Matter of Fisch, 58 Misc 2d 193.)

      Mary Ellen Cronly and Ellis S. Franke for respondent.
    Based on the clear mandate contained in section 60 of the Rent Stabilization Code requiring an owner to renew upon the same conditions contained in the expiring lease, the board properly directed the owner to include in all renewal leases the provision contained in the initial lease whereby the tenant was granted a concession of rent for the first two months of the lease term. The board order is thus supported by a rational basis and in accord with law and was properly affirmed by the courts below. (Matter of David v New York City Conciliation & Appeals Bd., 91 AD2d 581, 59 NY2d 714; Matter of La Barbera v Housing & Dev. Auth., 44 AD2d 835; Matter of Kliegman v McGoldrick, 285 App Div 1064; Fresh Meadows Assoc. v New York City Conciliation & Appeals Bd., 88 Misc 2d 1003, 55 AD2d 559, 42 NY2d 925; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Colton v Berman, 21 NY2d 322; Matter of Sovereign Apts. v New York City Rent Conciliation & Appeals

      Bd., 81 AD2d 769, 54 NY2d 905; Matter of East 56th Plaza v New York City Conciliation & Appeals Bd., 80 AD2d 389, 56 NY2d 544; Appleton v National Park Bank, 211 App Div 708, 241 NY 561.)
   OPINION OF THE COURT

Kaye, J.

In December, 1965, while the Lincoln Towers complex in Manhattan was still incomplete, Maurice Rosenberg signed a three-year lease for an apartment there. His lease included a “modification-of-lease rider” containing a two-month rent concession which he received at the outset of his tenancy. Several lease renewals later, Rosenberg complained to the Conciliation and Appeals Board (CAB), of which respondent is chairman, that the two-month rent concession should, by operation of the Rent Stabilization Law, have carried forward to his subsequent renewal leases and because this was not done he had been overcharged. The CAB ruled in his favor. In an article 78 proceeding brought by appellant, Century Operating Corporation, managing agent of Lincoln Towers, Special Term upheld the CAB determination and the Appellate Division affirmed. Because the CAB’s determination was based on a construction of the rider that was without rational basis, we now reverse.

The rider in issue stated that the landlord would not be liable for failure to give possession of the apartment at the commencement of the specified term if building construction had not yet been completed, and further provided: “Tenant shall not be required to pay rent for the two months period commencing on the date on which possession of the apartment is given or the apartment is available for occupancy by Tenant. The installment of rent paid by Tenant upon the execution of the Apartment Lease shall be applied, on a prorated basis, first to the rent for the remainder of the calendar month immediately following such two months period and then towards the rent for the next calendar month (the balance of which rent for said next calendar month after such application shall be paid by Tenant on the first day of said next calendar month), or if such two months period expires on the last day of a calendar month, to the rent for the calendar month which immediately follows such two months period.”

Upon passage of the New York City Rent Stabilization Law in May, 1969 (Administrative Code of City of New York, § YY51-1.0 et seq.), Rosenberg’s apartment became subject to rent stabilization. Under subdivision b of section YY51-4.0 of the Rent Stabilization Law, all future rent increases were to be computed on the basis of a “base rent” charged on May 31,1968: here $313. Section 60 of the Code of the Rent Stabilization Association of New York City, Inc. (the Rent Stabilization Code), further required that an owner offer a stabilized tenant a renewal lease on the same terms as the expiring lease, except for the authorized rent increase.

Rosenberg renewed his lease with appellant’s predecessor for three successive three-year terms, in February, 1969, 1972 and 1975. On each occasion, the rent in the renewal lease was calculated on the basis of the $313 base rent allowed with increases. Also on each occasion, the renewal lease did not contain the modification-of-lease rider and Rosenberg was not allowed two months’ free rent. Rosenberg executed each renewal without protest.

In September, 1976, appellant became managing agent for the Lincoln Towers complex. Shortly after Rosenberg executed his fourth renewal lease for the period February, 1978 to January, 1981, he submitted an overcharge complaint to the CAB. Rosenberg alleged that the proper base rent was not $313, but rather $313 multiplied by 34/36 (to account for the actual number of months in which rent was paid in the original lease), or $295.61, and he averred that, as the rent increases in his renewal leases were all based on the $313 base rent, he had been overcharged. Rosenberg sought both back rent and future adjustments. Appellant responded by contending that the free-rent period in the original lease was a one-time concession intended to attract tenants to the then-unoccupied apartment complex, and therefore could not be employed to reduce Rosenberg’s rent.

In October, 1978 the CAB ruled that appellant had violated section 60 of the Rent Stabilization Code by not including a two-month concession in each renewal lease, citing Matter of La Barbera v Housing & Dev. Auth. (44 AD2d 835), and awarded Rosenberg a refund of past rentals paid to appellant for the “free months.” Two CAB members dissented from the reasoning of the majority, and one additional member from the result, on the ground that Rosenberg was estopped from asserting his claims by reason of laches.

Appellant then commenced this article 78 proceeding in May, 1980 seeking to set aside the CAB determination as “arbitrary, capricious and erroneous as a matter of law.” In September, 1981, Special Term dismissed appellant’s petition on the ground that the CAB determination was rationally based and not arbitrary or capricious. The Appellate Division, with one dissent, affirmed in November, 1982, concluding that “although we might have reached a different conclusion, this court may not substitute its judgment for that of the board.” (90 AD2d, p 732.)

Unquestionably, the modification-of-lease rider, as a condition of the original lease, should by virtue of section 60 of the Rent Stabilization Code be deemed incorporated in Rosenberg’s renewal leases. The issue presented is whether that rider, once incorporated, can be construed to require two months’ free rent on the occasion of each renewal.

The CAB’s interpretation of the modification-of-lease rider is arbitrary and capricious in that it is without sound basis in reason, and in disregard of the terms of the contract and the facts in this action. (Matter of Pell v Board of Educ., 34 NY2d 222, 231.) The explicit terms of the rider, including that the tenant “shall not be required to pay rent for the two months period commencing on the date on which possession of the apartment is given or the apartment is available for occupancy”, limit the rent concession to the commencement of the original vacancy lease. The terms “possession * * * is given” and “available for occupancy” have no rational relation to a renewal lease, where the tenant already is in possession and occupancy of the apartment. The rider must be read “in the light of the circumstances existing at its making” (Becker v Frasse & Co., 255 NY 10, 14), and examination of the language of the rider as a whole confirms that the two-month rent concession is tied to the other rider provisions concerning the possibility that building construction would not be complete by the beginning of the specified term. The provision for proration of the free rent in case the period would not begin on the first day of a calendar month applies peculiarly to the initial vacancy lease, when the building was not yet available for occupancy, and would have no meaning in the context of renewal leases.

Respondent suggests that the parties’ intent, and therefore principles of contract construction, are irrelevant in cases of leases subject to rent stabilization, citing Matter of East 56th Plaza v New York City Conciliation & Appeals Bd. (56 NY2d 544). In Matter of East 56th Plaza, we held that, since section 60 of the Rent Stabilization Code requires that terms and conditions of expiring leases be incorporated in renewal leases, the fact that a landlord may not have intended to incorporate a term or condition is immaterial. Here it is undisputed that the modifieation-oflease rider was incorporated in Rosenberg’s renewal lease. But on the question of the meaning to be given to a contractual term or condition once incorporated in a renewal lease, the parties’ intent is, as always, a touchstone of contract construction.

Matter of La Barbera v Housing & Dev. Auth. (44 AD2d 835, supra), cited by the CAB in support of its determination and by respondent for the proposition that rent concessions in original leases are perforce carried over into renewal leases by the Rent Stabilization Code, does not support the CAB’s result here. In that case, a lease term providing that the tenant would pay no rent “for January of each year” was, once incorporated in a renewal lease by virtue of section 60 of the Rent Stabilization Code, properly construed to provide a rent concession in January for years under renewal leases as well. The concession under consideration, fixed as it was to the giving of possession and assumption of occupancy in the uncertainty of building completion, cannot be construed to carry forward to renewal leases.

The CAB’s determination, therefore, is without rational basis and must be annulled. (Matter of Swalbach v State Liq. Auth., 7 NY2d 518, 522.) Accordingly, the order of the Appellate Division should be reversed, with costs, and appellant’s petition to set aside the CAB’s determination should be granted.

Simons, J.

(dissenting). The order of the Appellate Division should be affirmed. The majority has substituted its judgment for that of the agency charged with administering the rent control laws contrary to familiar rules limiting the scope of the courts’ review of administrative determinations.

The New York City Conciliation and Appeals Board (CAB) is the administrative body charged with the responsibility of interpreting the provisions of leases and applying the rent stabilization laws to them (see Rent Stabilization Law [Administrative Code of City of New York], § YY51-6.0). The Code of the Rent Stabilization Association of New York City, Inc. (Rent Stabilization Code), was adopted to implement that law and pursuant to section 60 of it, the landlord of rent-stabilized premises is required to offer a tenant a renewal lease on the same terms as the expiring lease except for authorized rent increases. Applying that provision, the Conciliation and Appeals Board determined the rent applicable to the leasehold in this case by reference to a statutorily fixed base rent, i.e., the rent chargeable May 31, 1968, and ordered the landlord to renew the lease for the term commencing in 1978 on the same terms. Finding that the lease in existence in 1968 granted two months’ free rent at the commencement of the term, the board ordered renewal of the tenant’s lease on the same terms.

The CAB is the agency empowered to construe the provisions of the Rent Stabilization Law and the courts are obliged to accord due weight to its decisions (Fresh Meadows Assoc. v New York City Conciliation & Appeals Bd., 55 AD2d 559, 560, affd 42 NY2d 925). Consequently, the CAB’s determination interpreting the lease terms and section 60 of the Rent Stabilization Code must be upheld by the court if it has support in the record, a reasonable basis in law, and is not arbitrary or capricious (Matter of Park East Land Corp. v Finkelstein, 299 NY 70, 75). It is not for the courts to search out the appropriate interpretation of these provisions, for once a rational basis for the administrative agency’s determination is exposed, the judicial function is exhausted.

Here the CAB concluded that section 60 of the code requires that an owner renew a lease on the same conditions as the expiring lease, including a concession of free rent for the first two months of the lease term. This construction of section 60 has a reasonable basis in law because it is founded upon the literal wording of the statute which explicitly requires renewals on identical terms. Further, the CAB’s decision to view the rider containing the renewal as part of the lease agreement has a rational basis, notwithstanding the fact that it spoke of the giving of possession and assumption of occupancy. The rider was physically annexed to the lease and, as the majority concede, must be considered a part thereof. Interpretation of the instrument’s terms was a matter for the agency’s expertness (see Matter of David v New York City Conciliation & Appeals Bd., 59 NY2d 714; Matter of Park East Land Corp. v Finkelstein, supra), and inasmuch as the construction placed upon them was not irrational, the court must abide by it. A contrary rule would produce needless additional litigation and force this court to second-guess administrative disputes.

Judges Jasen, Jones and Meyer concur with Judge Kaye; Judge Simons dissents and votes to affirm in a separate opinion in which Chief Judge Cooke and Judge Wachtler concur.

Order reversed, with costs, and petition granted.


author: Meyer, J.

text:
    Northern Westchester Professional Park Associates, Appellant, v Town of Bedford, Respondent.
    Argued November 22, 1983;
    decided December 20, 1983

      POINTS OF COUNSEL

      Stuart R. Shamberg arid Robert F. Davis for appellant. I.
    The decision of the court below is replete with error and totally disregards the trial record. (Hammond v Van Riper, 156 App Div 290; Ditmars v Renz, 269 NY 191; Zappolo v Lanigan, 246 App Div 443, 272 NY 584; Jankoski v Azaro, 246 App Div 557; Johnson v R. T. K. Petroleum Co., 289 NY 101, 646; Housman v Waterhouse, 191 App Div 850; Prime v City of Yonkers, 131 App Div 110, 199 NY 542; O’Brien v Birnbaum, 251 App Div 895, 278 NY 662; Ilasi v City of Long Beach, 38 NY2d 383.) II. The current zoning designation of plaintiff’s property for residential use is unconstitutional as it causes significant economic injury to plaintiff and deprives plaintiff of all reasonable use of its property. (Dobson Jamaica Realties v Town of Brookhaven, 96 Misc 2d 722; Stevens v Town of Huntington, 46 Misc 2d 604, 25 AD2d 890, 20 NY2d 352; Matter of Eaton v Sweeny, 257 NY 176; Shepard v Village of Skaneateles, 300 NY 115; Koffman v Town of Vestal, 23 AD2d 199, 18 NY2d 855; Matter of Style Rite Homes v Zoning Bd. of Appeals, 54 Misc 2d 866; Udell v McFadyen, 40 Misc 2d 265; Attoram Realty Corp. v Town of Greenburgh, 8 AD2d 937; Vigilant Investors Corp. v Town of Hempstead, 34 AD2d 990.) III. The trial court and the court below erred in denying an award of monetary damages to plaintiff pursuant to section 1983 of title 42 of the United States Code notwithstanding the fact that plaintiff’s proof of his monetary damages were unrebutted at trial. (People v Hawkins, 157 NY 1; Nieves v New York City Tr. Auth., 91 Misc 2d 214; Monell v New York City Dept. of Social Servs., 436 US 658; Owens v City of Independence, 445 US 622; Turpin v Mailet, 579 F2d 152, 591 F2d 426; Smith v Ambrogio, 456 F Supp 1130; Muzquiz v City of San Antonio, 586 F2d 529; Morrow v Igleburger, 584 F2d 767; Baskin v Parker, 588 F2d 965; Hernandez v City of Lafayette, 643 F2d 1188.) IV. The trial court erred in denying plaintiff an additional cost allowance pursuant to CPLR 8303 (subd [a], par 2). (American Electronics v Neptune Meter Co., 30 AD2d 117, 33 AD2d 157; Sterling Opt. Co. v University of State of N. Y., 56 Misc 2d 54; Scola v Morgan, 66 AD2d 228.)

      James F. Donohue, Town Attorney (Henry J. Smith and James G. Fine of counsel), for respondent.
    I. The order of the court below stands up under appellant’s scattershot attack. (Matter of City of New York [A. & W. Realty Corp.], 1 NY2d 428; People ex rel. MacCracken v Miller, 291 NY 55; York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128; Agati v Agati, 59 NY2d 830; Matter of Hime Y., 54 NY2d 282; Udell v Haas, 21 NY2d 463; Matter of Golden v Planning Bd., 30 NY2d 359; Chusud Realty Corp. v Village of Kensington, 40 Misc 2d 259, 22 AD2d 895; Curtiss-Wright Corp. v Town of East Hampton, 82 AD2d 551; Matter of Grimpel Assoc. v Cohalan, 41 NY2d 431.) II. Plaintiff did not prove the residential zoning of its premises to be invalid under the exacting standards of a constitutional case. (Lighthouse Shores v Town of Islip, 41 NY2d 7; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 450 US 1042; Blitz v Town of New Castle, 94 AD2d 92; De Sena v Gulde, 24 AD2d 165; Shepard v Village of Skaneateles, 300 NY 115; Ulmer Park Realty Co. v City of New York, 270 App Div 1044, 297 NY 788; Brick Hill Constr. Corp. v Zoning Bd. of Appeals, 53 NY2d 621.) III. The court below applied the correct burden of proof principles applicable to a constitutional challenge against current zoning. (Dauernheim, Inc. v Town Bd., 33 NY2d 468; Socha v Smith, 33 AD2d 835, 26 NY2d 1005; Matter of Fulling v Palumbo, 21 NY2d 30; Matter of National Merritt v Weist, 41 NY2d 438; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338; Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61; Marcus Assoc. v Town of Huntington, 45 NY2d 501; Wiggins v Town of Somers, 4 NY2d 215; Lighthouse Shores v Town of Islip, 41 NY2d 7; Blitz v Town of New Castle, 94 AD2d 92.) IV. Plaintiff was properly denied an award of damages. (Sharapata v Town of Islip, 56 NY2d 332; Paul v Davis, 424 US 693; Parratt v Taylor, 451 US 527; Jensen v City of New York, 42 NY2d 1079; Matter of

      Charles v Diamond, 41 NY2d 318; French Investing Co. v City of New York, 39 NY2d 587, 429 US 990; Lutheran Church v City of New York, 35 NY2d 121; Modjeska Sign Studios v Berle, 43 NY2d 468, 439 US 809; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 438 US 104.) V. Special Term did not abuse its discretion in denying the motion for an extra allowance. (Shiels v Wortmann, 126 NY 650; Dudley v Perkins, 235 NY 448; Abbott v Page Airways, 23 NY2d 502; Metropolitan Sav. Bank v Tuttle, 293 NY 26; Morse v Palatine Ins. Co., 33 Misc 2d 205, 17 AD2d 657.) VI. Special Term erred in usurping the legislative function and directing the method of rezoning. (Matter of County of Nassau, 47 Misc 2d 593; Nelkin v Town of Oyster Bay, 14 Misc 2d 764; Lusk v Town of Eastchester, 60 AD2d 645; Stibell Realty Corp. v City of New York, 54 AD2d 962; Woodbury Props. v Burke, 44 AD2d 728; Emjay Props. v Town of Brookhaven, 42 AD2d 907; Berenson v Town of New Castle, 67 AD2d 506.)
   OPINION OF THE COURT

Meyer, J.

In an action to have a zoning ordinance declared unconstitutional as applied to plaintiff’s property, the issue is not whether other zoning would be appropriate or whether the property is zoned for its highest and best use but whether the existing zoning classification deprives the owner of any use to which it is reasonably adapted. To be successful in such an action, the property owner must overcome the presumption of constitutionality of the ordinance by establishing beyond a reasonable doubt that he cannot obtain a reasonable return on the property under any of the uses, other than public or quasi-public uses, permitted by the ordinance. Because plaintiff’s proof was insufficient, under that standard, to establish that the present zoning of plaintiff’s property is confiscatory, the order of the Appellate Division should be affirmed, with costs.

I

Plaintiff owns an irregularly shaped 12.6-acre parcel of land which bridges the line between the Town of Bedford and the Town/Village of Mount Kisco. The Mount Kisco portion is along part of the western edge of the tract, is .9 acres in size, is undeveloped and is zoned Research-Office (R-O). The 11.7 acres in the Town of Bedford fronts on Route 172 for 218.47 feet of its southerly perimeter and on McLain Street for 970.79 feet of its easterly perimeter. It is zoned two-acre residential (R-2A) and is improved by a large two-story residence and a smaller dwelling.

To the west and south of the Bedford portion lies another parcel, also owned by plaintiff, which fronts on Route 172, which is zoned Planned Business-Office (PB-O) and on which are situated two medical buildings and two office buildings. Opposite those buildings on the south side of Route 172 is land within Mount Kisco which is zoned for limited office use and on which there are two commercial office buildings. Opposite the plaintiff’s property on the south side of Route 172, also in Mount Kisco, the land is zoned for multifamily residential use and a marsh preserve.

To the north of the plaintiff’s property on the west side of McLain Street the land is zoned for, and has been developed as, two-acre residential use. Along the east side of McLain Street and running north from Route 172 is a 296-acre estate, zoned for two-acre and four-acre residential use, on which is situated a large mansion presently occupied by a charitable foundation, under a five-year special use permit granted by the Town of Bedford in 1979, as a study center.

The property was acquired by plaintiff in 1978 for $265,000. In February, 1979, plaintiff petitioned the Town Board of the Town of Bedford to rezone the property as a new planned business-office park district, similar to the town’s PB-0 classification, but including as a permissible use a conference center and incidental service businesses, access to the property to be from Route 172 only. The Bedford Planning Board recommended rezoning as PB-0 rather than plaintiff’s proposed new park district, on condition that a buffer of not less than 100 feet be provided adjacent to adjoining residential property. After two public hearings held by the town board, at which, among other objectants, the Mount Kisco Planning Board and the Westchester County Planning Board objected that the traffic impact of rezoning would be greater than Route 172 could accommodate and that the proposed buffer zone was inadequate, the town board on November 28, 1979 denied the request for rezoning.

Plaintiff then commenced the instant action for a declaratory judgment and for damages, alleging that because of the development of abutting lands its property cannot be used for any purpose permitted by R-2A zoning and that, therefore, continuation of that zoning classification denied it due process of law and entitled it to damages for the denial of its constitutional and civil rights. After trial Supreme Court in an opinion which noted that development of plaintiff’s property for office use would have no significant traffic effect on Route 172, that plaintiff had demonstrated significant economic injury, and that the town had failed to establish that R-2A zoning was required by public interest, declared the zoning unconstitutional. It held, however, that plaintiff was not entitled to damages. The judgment entered dismissed plaintiff’s cause of action for damages but on the due process causes of action declared the zoning unconstitutional as applied to plaintiff’s property.

The Appellate Division held that plaintiff had failed to sustain its burden of proof in a number of respects, that the Trial Judge had incorrectly applied the area variance standard of proof stated in Matter of Fulling v Palumbo (21 NY2d 30), and that his traffic finding was unsupported by the record. It, therefore, modified, on the law and the facts, struck from the judgment everything other than the denial of damages, added a provision declaring the zoning as applied to plaintiff’s property not unconstitutional, and, as so modified, affirmed.

Plaintiff appeals as of right on both constitutional (CPLR 5601, subd [b], par 1) and modification (CPLR 5601, subd [a], par [iii]) grounds. It argues that the Appellate Division, not the Trial Judge, applied the wrong standard of review, that it sufficiently demonstrated both the value of the property at time of purchase and the fact that the property cannot be used for any purpose permitted by the present classification, that the confiscatory nature of the present zoning and the town board’s refusal to rezone entitle it not only to a declaration of unconstitutionality but also to damages, and that the Trial Judge erred in denying plaintiff an additional allowance under CPLR 8303. The last is not reviewable by our court (Abbott v Page Airways, 23 NY2d 502, 515) and the damage issue need not be reached in view of our conclusion that the present zoning is constitutional. On the other questions, we agree essentially with the reasoning of the Appellate Division but write to emphasize that agreement and in the interest of clarifying the applicable rules.

II

Concerning standard of review, plaintiff argues first that on evidence which conflicts or from which conflicting inferences may be drawn, the Appellate Division cannot reverse unless the trial court’s decision is so clearly erroneous that it can be said that it is not supported by the evidence. For more than 50 years, however, since the 1925 amendment to the Constitution (art VI, § 5), the rule has been that the power of the Appellate Division is not so limited, that its authority is as broad as that of the trial court (Jacques v Sears, Roebuck & Co., 30 NY2d 466, 471; O’Connor v Papertsian, 309 NY 465, 471-472) and that as to a bench trial it may render the judgment it finds warranted by the facts, taking into account in a close case “the fact that the trial judge had the advantage of seeing the witnesses” (York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 133-134; accord Cohen v Hallmark Cards, 45 NY2d 493, 498; Bernardine v City of New York, 294 NY 361, 366-367; People ex rel. MacCracken v Miller, 291 NY 55, 62; see Miller v Merrell, 53 NY2d 881, 883; Siegel, NY Prac, § 529, pp 731-732; Cohen and Karger, Powers of the New York Court of Appeals, § 112).

The second branch of the argument is that the trial court referred to Matter of Fulling v Palumbo (21 NY2d 30, supra) only as to the sequence of going forth with the evidence in the case, not in contravention of the reasonable doubt standard and that, in any event, what the courts really do is balance the interests of the public against the interests of the property owner. The Trial Judge’s decision refutes the argument for its conclusion that the zoning classification is confiscatory turned not on plaintiff’s demonstration that it could not obtain a reasonable return on the property under the present zoning but on “the defendant’s inability to demonstrate that the public health, safety and welfare of the community is threatened if existing zoning regulations fall”.

Nor should our affirmance in Socha v Smith (26 NY2d 1005) or our decisions in Salamar Bldrs. Corp. v Tuttle (29 NY2d 221) or Stevens v Town of Huntington (20 NY2d 352) be read as revising the burden-of-proof rules applicable to a claim of confiscatory zoning or adopting a balancing test for such cases. A zoning ordinance may be an invalid exercise of the police power because not reasonably related to the public health, safety, morals or general welfare or because, even though reasonably related to a legitimate public purpose, it renders the property affected by it so unsuitable for any purpose for which it is reasonably adapted as effectively to destroy its economic value (French Investing Co. v City of New York, 39 NY2d 587, 596). In the first situation diminution in value is of limited significance; in the second it is crucial. In either case, however, the burden is upon the property owner seeking to have an ordinance declared unconstitutional as applied to his property to overcome the presumption of constitutionality which enshrouds the ordinance by proof beyond a reasonable doubt (Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 344; Marcus Assoc. v Town of Huntington, 45 NY2d 501, 505; McGowan v Cohalan, 41 NY2d 434, 436).

That does not mean that in a confiscation case the municipality does not run a risk if in reliance upon the burden of proof on the property owner it introduces no proof. As in every case, when the proponent presents proof sufficient to permit the trier of fact to decide in his or her favor, the opponent must counter that proof or risk an adverse determination. Only in that general sense can it be said that there is any obligation on the municipality to go forward with proof (see Matter of Spears v Berle, 48 NY2d 254, 263; Matter of Charles v Diamond, 41 NY2d 318, 327). There is, however, no rule in a confiscation case, such as was recognized in Matter of Fulling v Palumbo (21 NY2d 30, supra) with respect to area variance cases, that a showing of significant economic injury by the property owner will, without further proof, entitle him or her to relief, absent the presentation by the municipality of evidence showing that the public health, safety or welfare will be served by denial of the requested variance.

This is because area variance applications seek to relax one or more incidental limitations relating to a permitted use whereas confiscation cases are brought to upset the legislatively adopted use restriction in favor of a less restrictive use classification. In area variance cases financial hardship is one of the factors to be considered but, by itself, is not determinative (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 315). In confiscation cases, on the other hand, the fact that the property would have a much greater value if zoned for less restrictive use, or even that the established zoning has caused significant diminution in the value of the property owner’s investment, is not enough (Marcus Assoc. v Town of Huntington, 45 NY2d 501, 506, supra; Matter of Charles v Diamond, 41 NY2d 318, 326, supra; McGowan v Cohalan, 41 NY2d 434, 436, supra). Only if the zoning deprives the owner of “any reasonable income productive or other private use for which it is adapted and thus destroys its economic value, or all but a bare residue of its value” (French Investing Co. v City of New York, 39 NY2d 587, 596, supra) will it be held confiscatory. The heavy burden of establishing that no reasonable return may be obtained from the property under the existing zoning remains upon the property owner throughout the case and is not shifted, in a confiscation case, by proof of economic injury.

The Socha and Salamar Bldrs. cases, upon which plaintiff relies, are not to the contrary. Although the Fulling burden-shifting discussion was referred to by the Appellate Division in Socha (33 AD2d 835, 836) and by our court in Salamar Bldrs. (29 NY2d, at p 226), our memorandum in Socha made no reference to it and the discussion in Salamar was unnecessary to the conclusion there reached, which was that “despite the absence of proof by the town on the issue, plaintiff has failed to demonstrate that the ordinance was tantamount to a confiscation” (29 NY2d, at p 227).

Nor does the reference in Stevens to disparity in value warrant the conclusion that the process is, except in a very limited sense, one of balancing. Much more is required than a showing that the zoning classification is fairly debatable. As the Stevens opinion notes, upon such a showing “the classification * * * must be allowed to stand” (20 NY2d, at p 355). There is balancing, therefore, only in the sense that to succeed the property owner must establish that the classification is “so one-sided as to be unreasonable and arbitrary, unnecessary to the preservation of the scheme and purpose as a whole, approaching the point where an owner is deprived of any beneficial or profitable use of his property” (Matter of Eaton v Sweeney, 257 NY 176, 183), before a court will afford relief (see 1 Rathkopf, Zoning and Planning, § 6.07, p 6-21). And, with but few exceptions, this is the nationwide rule (1 Williams, American Land Planning Law [1983 Supp], § 7.04, pp 180-181; § 7.04a, p 18).

Ill

Whether the existing zoning permits of a reasonable return requires proof from which can be determined the rate of return earned by like property in the community and proof in dollars and cents form of the owner’s investment in the property as well as the return that the property will produce from the various uses permissible under the existing classification (Matter of Village Bd. v Jarrold, 53 NY2d 254; see Matter of Crossroads Recreation v Broz, 4 NY2d 39).

The owner’s investment is, however, neither limited to nor exactly the same as the amount paid upon purchase of the property. Taxes, expenses and other carrying charges to the extent they exceed income may properly be added, as may improvements made (see Matter of Crossroads Recreation v Broz, supra, at p 44; Town of Hempstead v Lynne, 32 Misc 2d 312; 3 Rathkopf, Zoning and Planning, § 38.03, pp 38-33 — 38-36). But it must also be shown that the purchase price did not include a premium over fair market price at time of purchase in the expectation that the property would be downzoned, lest the purchase alone make the expectation a self-fulfilling prophecy (Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1, 9; Chusud Realty Corp. v Village of Kensington, 40 Misc 2d 259, 260-261, affd 22 AD2d 895; see 1 Williams, American Land Planning Law, § 6.17, pp 144-145). The owner’s investment as thus computed multiplied by the rate of return found reasonably to be expected will then provide the measure against which is to be assessed the claim that the existing zoning is confiscatory.

The other side of the equation is the return obtainable from the uses permitted by the existing zoning. That does not require a showing that the property is not suitable for public or quasi-public uses permitted by the zoning, such as for a church, school, college, public library, municipal building or park (Matter of Village Bd. v Jarrold, 53 NY2d 254, 258, n 1, supra; Matter of Grimpel Assoc. v Cohalan, 41 NY2d 431, 433; McGowan v Cohalan, 41 NY2d 434, 436, supra). It does, however, require a showing that the property will not provide a reasonable rate of return if used as otherwise permissible under the existing zoning, whether absolutely or only conditionally permitted under the ordinance or, indeed, permissible only as a nonconforming use pre-existing the zoning classification (Matter of Village Bd. v Jarrold, supra; Peekskill Suburbs v Morabito, 51 NY2d 941, 942; Matter of Spears v Berle, 48 NY2d 254, 263, n 4, supra).

Whether the property will provide a reasonable rate of return involves consideration of factors such as its topography, the zoning and use of nearby properties even though not within the same municipality, traffic on adjoining streets, and the length of time since structures of the type permitted have been erected in the area, among others (Vernon Park Realty v City of Mount Vernon, 307 NY 493, 499; Arverne Bay Constr. Co. v Thatcher, 278 NY 222, 230; Dowsey v Village of Kensington, 257 NY 221, 226, 230). Existing conditions, not what may occur in the future, are what the court is to assay (Mary Chess, Inc. v City of Glen Cove, 18 NY2d 205, 211; Arverne Bay Constr. Co. v Thatcher, supra, at p 232), except perhaps for a particular condition that is “ Imminent or a factual certainty’ ” (Kropf v City of Sterling Hgts., 391 Mich 139,151; see 1 Rathkopf, Zoning and Plánning, § 4.05, p 4-34). It is, moreover, with respect to the whole tract that reasonableness of return is to be measured, at least where the tract is uniformly zoned (Chase Manhattan Bank v Incorporated Vil. of Flower Hill, 28 NY2d 694, affg 29 AD2d 655, 656; see Penn Cent. Transp. Co. v New York City, 438 US 104, 130-131; 1 Rathkopf, Zoning and Planning, § 6.11, p 6-41; cf. American Sav. & Loan Assn. v County of Marin, 653 F2d 364). An owner will not have sufficiently established his confiscation claim, therefore, if the adverse factors demonstrated affect but a part of the property but do not prevent a reasonable return from the tract as a whole.

IV

It is against that background that we are to determine the correctness of the order appealed from. We agree with the Appellate Division that plaintiff’s proof was deficient in several respects and, to the extent that its decision may be regarded as evaluating the facts differently than did Special Term, conclude that it is the Appellate Division’s decision which “‘is conformable with the weight of evidence’ ” (Rorie v Woodmere Academy, 52 NY2d 200, 204, quoting Matter of City of New York [Coogan], 20 NY2d 618, 623).

The deficiencies in proof related to special permit uses and the price paid by plaintiff for the property. Much of the testimony to which plaintiff points as satisfying its burden relating to special permit uses related to public and quasi-public uses and was, therefore, irrelevant. Although there was testimony touching on use for a club, sanitarium and landscape nursery, use as a nursing home was not considered. Moreover, club use was said to be unsuitable “Because it doesn’t represent highest and best use. A tennis club would never return the income that office use, office building use, would.” But there is no constitutional requirement that the highest and best use or the greatest income obtainable be allowed (Dauernheim, Inc. v Town Bd., 33 NY2d 468, 472). A zoning classification will be held confiscatory only, as already noted, if no reasonable return can be obtained from the property as zoned.

Concerning the price paid by plaintiff for the property, plaintiff’s argument that “[tjhere was no evidence in the instant case to indicate that Plaintiff’s original purchase of the property was anything but an arms-length transaction” misses the mark in at least two respects. First, it was plaintiff’s burden to establish the investment base against which confiscation is to be measured, including the part played in the purchase negotiations of the potential rezoning of the property. Second, that the transaction was arm’s length does not exclude the possibility that a premium over fair market value was paid.

With respect to weight of the evidence, we note simply that plaintiff relied heavily on the fact that its property fronts on Route 172 and, it is claimed, is. surrounded on three sides by nonresidential uses. The evidence presented when the trial was reopened shows, however, that although the property to the west is zoned for research office use, its owner, American Ultramar Limited, had submitted to the Mount Kisco Planning Board a proposal for construction of an office building but never followed up on it and had no present plan to build and that a taking of the property for street use was under consideration. It showed also that the 296-acre property east of McLain Street is being used under a time-limited conditional permit and is zoned two-acre and four-acre residential, and that the properties to the north of plaintiff’s parcel are improved with residences. Although traffic on Route 172 and the commercial buildings along its route may well affect so much of plaintiff’s property as fronts for 218 feet on Route 172, when we consider plaintiff’s property as a whole in relation to its surroundings, as we must, we have no difficulty in concluding that the weight of the evidence supports the decision of the Appellate Division rather than that of Special Term.

For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed, with costs.


author: Jones, J.

text:
    Gail Schelberger, Respondent, v Eastern Savings Bank, Appellant.
    Argued November 22, 1983;
    decided December 15, 1983

      POINTS OF COUNSEL

      William E. Kelly, Manuel H. Quintana and Gianni Donati for appellant.
    I. The presumption against suicide does not bar the dismissal of respondent’s complaint as a matter of law. (Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178; Begley v Prudential Ins. Co., 1 NY2d 530; Prink v Rockefeller Center, 48 NY2d 309; Darrow v Family Fund Soc., 116 NY 537; Meacham v New York State Mut. Benefit Assn., 120 NY 237; Mallory v Travelers’ Ins. Co., 47 NY 52; Matter of Storar, 52 NY2d 363, 454 US 858; Blum v Fresh Grown Preserve Corp., 292 NY 241; White v Prudential Ins. Co., 120 App Div 260; Pagett v Connecticut Mut. Life Ins. Co., 55 App Div 628.) II. The jury charge was not in accord with New York law. (Coury v Safe Auto Sales, 32 NY2d 162; De Gogorza v Knickerbocker Life Ins. Co., 65 NY 232; Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178; Axelrod v Armitstead, 36 AD2d 593; Martorella v Prudential Ins. Co., 268 NY 586; Weil v Globe Ind. Co., 179 App Div 166; Begley v Prudential Ins. Co., 1 NY2d 530.) III. Errors in the course of trial entitled appellant to a new trial. (Cassidy v Gannett Co., 173 Misc 634; Kobert v

      National Mach. Co., 233 App Div 234, 258 NY 586; McGovern v Attie, 30 AD2d 559; Sarconi v 122 West 26th St. Corp., 241 NY 340; Delaney v Philhern Realty Holding Corp., 280 NY 461; Rivera v W. & R. Serv. Sta., 34 AD2d 115; Clark v Donovan, 34 AD2d 1099; Corcoran v O’Brien, 21 AD2d 838; Simmons v Stiles, 43 AD2d 417; Kenneth v Gardner, 36 AD2d 575.)

      Bernard Meyerson, William J. Fitzgerald and Edward P. Dean for respondent.
    I. The verdict of the jury in favor of plaintiff is supported by the overwhelming credible evidence in the record. (Merwin v City of Utica, 172 App Div 51; Merced v Harris, 26 AD2d 523.) II. The charge to the jury was correct. III. The trial court committed no substantial error. (Sinkevich v Cenkus, 24 AD2d 903; People v Hampton, 38 AD2d 772; Masterson v Solomon, 275 App Div 861, 300 NY 545; People v McNally, 58 NY2d 1029.)
   OPINION OF THE COURT

Jones, J.

In this action to recover the proceeds of a life insurance policy the jury was properly instructed with respect to the presumption against suicide and the evidence warranted submission of the issue to the jury. The contention of the insurer that the time has come to change the law with respect to the operation of such presumption is rejected.

The insurance policy on the life of Edward Schelberger on which the present action is predicated was issued by defendant bank as insurer on May 1, 1978. Respondent, wife of the insured, was designated primary beneficiary. The policy contained the standard provision, authorized under section 155 (subd 2, par [d]) of the Insurance Law, that, “[i]f the Insured dies as a result of suicide within two years after the date of issue of this policy, the liability of the Savings Bank shall be limited to an amount equal to the premiums paid.” The insured died on December 25, 1979, well within the two-year period. The insurer tendered the amount equal to the premiums paid, but denied respondent’s claim to proceeds in the face amount of the policy on the ground that the insured’s death was a suicide.

At trial before a jury, the court denied the insurer’s motion for a directed verdict, and the jury returned a verdict for the named beneficiary. On appeal, the Appellate Division, two Justices dissenting, affirmed. We agree with the majority at the Appellate Division.

Appellant insurer argues before us that the instruction given by the trial court with respect to the presumption against suicide was not in accord with the pertinent law in the State of New York. In the first alternative, the insurer argues that if the instruction is found to have been in accord with current law, the time has come when such law should be changed. In a second alternative, the insurer contends that it was entitled to a directed verdict in its favor even under the law as stated in the instruction that was given. Finally, reversal of the order of the Appellate Division is sought on the basis of asserted errors in the course of the trial.

With respect to the presumption against suicide, the trial court charged the jury as follows:

“Now, there is a presumption against suicide since self-destruction is contrary to the general conduct of mankind. In making your determination, whether the defendant has sustained its burden of proving that plaintiff’s husband committed suicide, you should consider that presumption and of course, all of the evidence in this case. If your finding is that the circumstances are consistent with either a finding of accidental death or a finding of suicide, then your finding must be that the death was accidental and your verdict will be for the plaintiff.

“You may make a finding of suicide only if you are satisfied from the evidence, and taking into consideration the presumption against suicide, that no conclusion other than suicide may reasonably be drawn.”

In so charging, the trial court tracked the language of the charge set forth in charge 4:57 of New York Pattern Jury Instructions. This charge accurately stated the present law of New York (Begley v Prudential Ins. Co., 1 NY2d 530). The pertinent authorities are identified and discussed in the opinion of Justice Bentley Kassal writing for the majority at the Appellate Division (93 AD2d 188), and no useful purpose would be served by our paraphrase of that opinion.

We perceive no sufficient reason to accept appellant insurer’s alternative invitation to modify the law of our State with respect to the presumption against suicide. The presumption springs from strong policy considerations as well as embodying natural probability (see Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178, 184-185). The evidence submitted by the insurer as to current statistical data with respect to the incidence of suicide as a major cause of death does not warrant a shift in our law, nor does the fact that neither suicide nor attempted suicide is proscribed by our criminal law. It is relevant, too, that the subject of presumptions and their operational significance is now before our Legislature as it considers the Proposed Code of Evidence. Section 303 addresses the subject, and the comment to that section cites the present law of New York with respect to the presumption against suicide (as embodied in NY PJI 4:57) with apparent approval. The presumption constitutes a statement of public policy of broad application rather than prescribing a means for resolving the competing claims to justice in an individual case. Should the Legislature desire to address the pertinent issues of public policy, consideration of the Proposed Code of Evidence offers at least an oblique opportunity for it to do so.

No evidence is tendered that the life insurance industry confronts financial distress or is otherwise faced with compelling reasons which would persuade it to seek a revision of the present operation of the presumption against suicide. Indeed, were that shown to be the state of affairs, recourse would better be had to the Department of Insurance as the governmental agency vested by the Legislature with responsibility for oversight of the industry and the proper protection of the interests of policyholders.

The insurer’s contention that it was entitled to a directed verdict in its favor must likewise be rejected. As the jury was instructed, a finding of suicide is warranted only if the jury is satisfied from the evidence, and taking into account the presumption against suicide, that no conclusion other than suicide, may reasonably be drawn. The insurer is entitled to a directed verdict only if, as a matter of law, the evidence compels the conclusion that the death was a suicide. That conclusion is not compelled by the proof in this record.

The evidence was that the insured had died in consequence of the ingestion of 30 to 40 Tuinal capsules — a barbiturate composed of equal parts of secobarbital and amobarbital. Countervailing the significance which might be attached to such ingestion by a person unfamiliar and unaccustomed to such drugs was evidence that the insured was a frequent user of the drug and that three months prior to his death he had taken a dose of perhaps 40 Tuinal capsules from which, after emergency hospitalization, he had recovered. It would not be unreasonable in this circumstance to conclude that the insured had taken the capsules which led to his death for self-indulgence only, with no intention of causing his own death. The fact that the telephone had been pulled off the wall, without more, was nonindicative of self-destruction. The autopsy and death certificates listing suicide as the cause of death which were admitted in evidence represented no more than the opinion of the subscribing physician, were not conclusive, and were of limited probative value in view of what the jury may have considered was the effective cross-examination of the subscriber.

Not to be ignored was the absence of any evidence that the insured had left a suicide note, that he was suffering from any debilitating physical condition or facing any financial hardship or adverse business prospects or reversals. There was evidence which might have been credited by the jury that, although there had been stormy occasions in their married life, on the night of his death, after returning from a Christmas Eve exchange of presents with her mother his wife expected to celebrate Christmas with the insured and their children. A neighbor testified that she had seen the insured between 7 and 8 o’clock in the evening before his death, that he appeared friendly and happy, and that they exchanged Christmas greetings. She testified further that she saw him again between 11 and 11:30 talking to her husband and that he was then happy and smiling. The witness last saw the insured after 2 o’clock in the morning when he was talking and laughing with another neighbor, although he then looked exhausted and went right into his house.

On this state of the record the question whether the insured’s death was a suicide was properly submitted to the jury and there is no basis in law for disturbing its verdict that it was not.

We advert briefly to the assertions of trial error advanced by the insurer, none of which call for a reversal. The fact that the autopsy report was annexed to the complaint did not constitute a judicial admission that the death was a suicide. By like token, it was not an abuse of discretion to refuse to permit counsel for the insurer to use the complaint and attached autopsy report on cross-examination of the beneficiary. Nor was it an abuse of discretion not to permit counsel to exhibit a bottle of Tuinal capsules to the jury. Finally, the claims of prejudicial conduct on the part of plaintiff’s counsel, to the extent that they were preserved, do not constitute grounds for reversal.

Accordingly, for the reasons stated, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed, with costs.