text:
    Russell L. Egleston, Appellant, v John J. Kalamarides, Respondent.
    Decided November 18, 1982

      APPEARANCES OF COUNSEL

      Andrew S. Fusco for appellant.

      Richard K. Hughes for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by denying the motion as to so much of the complaint as is directed toward the slander alleged to have occurred on February 9, 1980. As so modified, the order of the Appellate Division should be affirmed, with costs to plaintiff.

The slander alleged to have been uttered in November, 1979 was barred by the applicable one-year Statute of Limitations (CPLR 215, subd 3) by the time plaintiff commenced his action on February 2, 1981. The alleged reutterance of the slander on February 9, 1980 measured the time within which an action based on that utterance could be brought, but it did not start the time running anew for the one which had occurred the previous November. Therefore the action was timely only as to the second occurrence.

As to the surviving slander, the .affidavit of Chatfield, which indicated Ricketson’s name, the occasion for the interview with Ricketson,. the substance of the slander Ricketson told Chatfield he had heard the defendant utter and, most important, which explained, on Chatfield’s direct knowledge, that Ricketson now refused to give an affidavit as to these facts (thereby supplying acceptable excuse for failure to meet the strict requirement of tender in admissible form), was sufficient to defeat defendant’s summary judgment motion (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified, with costs to plaintiff, in accordance with the memorandum herein and, as so modified, affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Board of Education of Tri-Valley Central School District at Grahamsville, Respondent, v Celotex Corporation et al., Defendants, and Perkins & Will, Appellant.
    Decided November 18, 1982

      APPEARANCES OF COUNSEL

      Donald D. Brown, Jr., for appellant.

      Michael R. Gottlieb for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, and question certified answered in the negative for reasons stated in the memorandum at the Appellate Division (88 AD2d 713).

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


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    Board of Higher Education in the City of New York, Respondent, v Bass & D’Alessandro Enterprises, Inc., Appellant.
    Argued November 9, 1982;
    decided November 18, 1982
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


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    The People of the State of New York ex rel. Kevin Wilson, Appellant, v New York State Division of Parole et al., Respondents.
    Argued November 9, 1982;
    decided November 18, 1982
   Appeal dismissed, without costs, 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:
    Blue Cross and Blue Shield of Greater New York, Respondent-Appellant, v State Division of Human Rights, Appellant-Respondent, et al., Respondents.
    Submitted November 1, 1982;
    decided November 18, 1982
   Motion to dismiss cross appeal taken as of right granted and cross appeal dismissed, without costs, and cross motion for leave to appeal dismissed, each upon the ground that petitioner is not a party aggrieved (CPLR 5511).


text:
    Town of Evans, Respondent, v Robert R. Catalino et al., Appellants.
    Submitted October 18, 1982;
    decided November 18, 1982
   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. On the court’s own motion, appeal taken as of right pursuant to CPLR 5601 (subd [c]) dismissed, without costs, upon the ground that the order appealed from does not grant a new trial (see Guthartz v City of New York, 57 NY22d 635).


text:
    In the Matter of Pherbo Realty Corporation, Respondent-Appellant, v Board of Assessors of the Town of Fishkill et al., Appellants-Respondents.
    Submitted November 1, 1982;
    decided November 18, 1982
   Motion to dismiss appeal taken by appellants-respondents granted and appeal dismissed, without costs, upon the ground that appellants-respondents are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Owen Quinn, Respondent, v Alfred E. Werner, as Commissioner of Aviation and Transportation of the Town of Islip, et al., Appellants.
    Submitted August 16, 1982;
    decided November 18, 1982
   Motion to dismiss the appeal granted to the extent of dismissing, without costs, the appeal from so much of the order of the Appellate Division as vacated the statutory stay, upon the ground that that part of the order does not finally determine the proceeding within the meaning of the Constitution. Motion to dismiss the appeal denied insofar as it seeks dismissal of the appeal from that portion of the order of the Appellate Division which amended the prior order of the Appellate Division and thus finally determined the article 78 proceeding (CPLR 5601, subd [a], par [ii]).


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    William Mayers, Respondent, v Nicholas D’Agostino et al., Appellants.
    Argued November 8, 1982;
    decided December 2, 1982

      APPEARANCES OF COUNSEL

      William F. Larkin and Benjamin Purvin for appellants.

      Morgan Kennedy and Morris J. Eisen for respondent.
   opinion of the court

Memorandum.

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

CPLR 3211 (subd [e]) provides, inter alia, that a defense based upon the doctrine of collateral estoppel is waived unless raised either in a responsive pleading or in a motion made before service of the responsive pleading is required.

Defendants raised the defense of collateral estoppel for the first time during the trial. Consequently, defendants waived this defense unless they could obtain leave to amend their answer to include the affirmative defense.

The decision to grant or deny leave to amend an answer is within the trial court’s discretion (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 150, pp 595-596; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.14). Since one of the purposes upon which the doctrine of collateral estoppel is premised is to conserve the resources of the courts and litigants (Gilberg v Barbieri, 53 NY2d 285, 291) and since defendants failed to move to amend their answer until plaintiff had presented nearly all his evidence, we cannot say, as a matter of law, that the trial court, in denying the motion, abused its discretion.

In view of defendants’ waiver of the defense of collateral estoppel, we need not pass on the question of the propriety of raising that defense under the circumstances present here.

We have also considered the evidentiary issues raised by defendants and find no basis for reversal.

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

Order affirmed, with costs, in a memorandum.


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    Stephen Gaynor et al., Appellants, v Town of Hoosick et al., Respondents.
    Argued November 12, 1982;
    decided December 2, 1982

      APPEARANCES OF COUNSEL

      Gerald A. Harley for appellants.

      H. Ward Hamlin, Jr., and Hubert D. Mills for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (85 AD2d 844; see, also, Pierson v City of New York, 56 NY2d 950).

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


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    The People of the State of New York ex rel. Office of Rent Administration, Division of Housing and Community Renewal, Respondent, v Berry Estates, Inc., et al., Appellants. (Action No. 1.) Berry Estates, Inc., et al., Appellants, v Victor Marrero, as Commissioner of the State of New York of Housing and Community Renewal, et al., Respondents. (Action No. 2.)
    Argued November 10, 1982;
    decided December 2, 1982

      APPEARANCES OF COUNSEL

      Donald Tirschwell for appellants.

      Martin A. Shlufman and Joseph B. Goldman for respondents.

      Robert Abrams, Attorney-General (Daniel M. Cohen and Peter H. Schiff of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

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

Insofar as appellants seek relief under subdivision (a) of section 9 of the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, §4), their claim is precluded by their failure to file an application for rent adjustment within 60 days of the local effective date of Resolution No. 4, whether that date be January 1,1979 or June 1,1979 (as calculated from this court’s dismissal of the motion for leave to appeal in the Mack case [People ex rel. Office of Rent Admin., Div. of Housing & Community Renewal v Mack, 88 Misc 2d 1047, affd 65 AD2d 681, mot for lv to app den 47 NY2d 706, 800]). To the extent that appellants seek “unusual remedies” predicated on our decision in Mayer v City Rent Agency (46 NY2d 139), the courts below found that the requisite “calculated action” on the part of the municipality designed to frustrate appellants’ rights was not present in this instance. This affirmed finding cannot be overturned on appeal to this court. Nor does this case fall within the scope of Matter of Our Lady of Good Counsel R. C. Church & School v Ball (38 NY2d 780, affg 45 AD2d 66, 73). Finally, we agree with the Appellate Division that section 9 of the Emergency Tenant Protection Act comports with constitutional principles of equal protection and due process.

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

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Appellant, v Joseph Harris, Also Known as Saharabe, Respondent.
    Argued November 12, 1982;
    decided December 2, 1982

      APPEARANCES OF COUNSEL

      Martin R. Goldberg, Special District Attorney, for appellant.

      Lisabeth Harrison for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum of the Appellate Division (85 AD2d 742; see, also, People v Sawyer, 57 NY2d 12).

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


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    Granada Buildings, Inc., Respondent, v City of Kingston et al., Appellants.
    Argued November 8, 1982;
    decided December 2, 1982

      APPEARANCES OF COUNSEL

      Paul L. Gruner and Brian L. Findholt for appellants.

      Kristina A. Burns and Robert C. Weisenberger for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and judgment granted in defendants’ favor declaring that the February, 1977 resolution passed by the City of Kingston limiting the tax levy on plaintiff’s housing project is a nullity, and is not, and has never been, binding on defendants.

Municipal contracts which violate express statutory provisions are invalid (Seif v City of Long Beach, 286 NY 382; Kelly v Cohoes Housing Auth., 27 AD2d 463, affd 23 NY2d 692; Albany Supply & Equip. Co. v City of Cohoes, 25 AD2d 700, affd 18 NY2d 968). Applying this principle, the city’s 1977 resolution granting respondent a partial tax exemption was a nullity since it was not authorized under the express terms of section 125 (subd 1, par [a]) of the Private Housing Finance Law, which allows municipalities to contract for such exemptions only with “any redevelopment company”; concededly, respondent was not a “redevelopment company” at that time. Furthermore, because a governmental subdivision cannot be held answerable for the unauthorized acts of its agents (Albany Supply & Equip. Co. v City of Cohoes, supra; People v Baldwin, 197 App Div 285, 291, affd 233 NY 672), we have frequently reiterated that estoppel is unavailable against a public agency (e.g., Public Improvements v Board of Educ., 56 NY2d 850; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88).

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

Order reversed, with costs, and judgment granted in favor of defendants in accordance with the memorandum herein.


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    Kuan Sing Enterprises, Inc., Appellant, v T. W. Wang, Inc., et al., Respondents.
    Argued November 8, 1982;
    decided December 2, 1982

      APPEARANCES OF COUNSEL

      Sidney A. Weisberg for appellant.

      Barbara M. Roth and Andrew L. Hughes for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (86 AD2d 549).

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


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    In the Matter of Consolidated Edison Company of New York, Inc., Appellant, v State Board of Equalization and Assessment, Respondent and Village of Pleasantville et al., Intervenors-Respondents.
    Argued November 9, 1982;
    decided December 2, 1982

      APPEARANCES OF COUNSEL

      Mark S. Tulis, Ernest J. Williams, Martin B. Cowan and Suzanne E. Hawkins for appellant.

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

      Melvin H. Osterman, Jr., Michael Whiteman and Kevin Young for Westchester Municipalities, intervenors-respondents.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (John P. MacArthur of counsel), for City of New York, intervenor-respondent.

      G. Robert Witmer, Jr., David M. Lascell, John B. Hood and Gary J. Jakaitis for National Fuel Gas Distribution Corporation and another", amici curiæ.

   OPINION OF THE COURT

Memorandum.

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

The only question before us on this appeal is whether the Appellate Division erred in holding that Special Term abused its discretion as a matter of law in allowing the filing by petitioner of a supplemental appraisal, the original appraisal filed by it under 22 NYCRR 839.2 not having included data concerning reproduction cost new less depreciation. It is not claimed that the decision to file the appraisal in that form was not a deliberate one on petitioner’s part, or that any cause for supplementing it existed other than the decision of Special Term, now overruled by the Appellate Division, that the special franchise properties, the valuation of which petitioner seeks by this proceeding to have reduced, are specialties to be valued only on the basis of reproduction cost new less depreciation.

Whether the Appellate Division was correct in overruling Special Term as to the method of valuation is not before us on this appeal, nor need we consider whether had the Special Term valuation ruling not been overruled its existence would provide good cause under the Third Department’s rule. The sole predicate for the allowance by Special Term of the filing of a supplemental appraisal having been the valuation ruling and the Appellate Division having held that ruling erroneous,-it necessarily follows that there was not only not good cause for allowing supplemental filing, there was no cause. Without Special Term’s valuation ruling, its authorization of a supplemental appraisal was without basis and, therefore, an abuse of discretion as a matter of law.

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

Order affirmed, etc.


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    In the Matter of Brooklyn Union Gas Company, Appellant, v State Board of Equalization & Assessment et al., Respondents.
    Argued November 9, 1982;
    decided December 2, 1982

      APPEARANCES OF COUNSEL

      F. Peter O’Hara, Lewis Orgel and Herman Meltzer for appellant.

      Robert Abrams, Attorney-General (Dennis Hurley and Peter H. Schiff of counsel), for State Board of Equalization and Assessment, respondent.

      Frederick A. O. Schwarz, Jr. (John P. MacArthur of counsel), for City of New York, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative, for the reasons set forth in the memorandum in Matter of Consolidated Edison Co. of N. Y. v State Bd. of Equalization & Assessment (58 NY2d 710 [decided herewith]). In view of the additional arguments advanced by petitioner in this proceeding, we add that the Third Department’s rule (22 NYCRR 839.2) is not inconsistent with CPLR 3140, which authorizes its adoption and involves neither an improper delegation of legislative power, nor, petitioner having been afforded the opportunity to file appraisal reports on any ground or grounds it saw fit, any denial of due process of law.

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

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


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    In the Matter of the Claim of Robert R. Ranni, Respondent. Philip Ross, as Industrial Commissioner, Appellant.
    Argued October 15, 1982;
    decided December 8, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Rochelle Abou El Khier, Peter H. Schiff and Paul S. Shemin of counsel), for appellant.

      Robert R. Ranni, respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the decision of the Unemployment Insurance Appeal Board reinstated.

Claimant was a hearing officer employed by the State Department of Social Services. He was charged with insubordination, and the matter went to binding arbitration pursuant to the collective bargaining agreement. After a full hearing, the arbitrator found that claimant was guilty of insubordination and approved the penalty of discharge.

Claimant’s subsequent application for unemployment benefits was denied because he was found to have been discharged for misconduct. An administrative law judge, stating that he was bound by the arbitrator’s factual finding of insubordination, concluded that claimant was discharged for misconduct and confirmed the decision to deny claimant’s application.

It is settled that the doctrine of res judicata is applicable to arbitration awards and may serve to bar the subsequent relitigation of a single issue or an entire claim (see Matter of American Ins. Co. [Messinger Aetna Cas. & Sur. Co.], 43 NY2d 184, 189-190). “Claim preclusion” refers to the bar against relitigating a claim or cause of action (see id., at p 189, n 2). “Issue preclusion” is more limited, barring only the relitigation of a discrete factual or legal issue (see id.).

Claim preclusion is not applicable here. The initial arbitration was concerned with the propriety of claimant’s dismissal whereas the instant controversy focused on claimant’s entitlement to unemployment insurance benefits. The ultimate issues are different, and the latter proceeding was therefore not barred by the former.

Issue preclusion is pertinent, however. In the present controversy, the administrative law judge was specifically concerned with determining whether claimant was guilty of misconduct and, hence, disqualified for benefits (see Labor Law, § 593, subd 3). In making this determination, the question of claimant’s conduct leading to his termination necessarily had to be considered. Claimant’s commission of the underlying acts had been decided in the previous proceeding, and claimant was precluded from relitigating this factual issue. The fact of insubordination being established, there was no error in the administrative law judge’s making the legal conclusion that claimant was discharged for misconduct.

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

Order reversed, etc.


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    Board of Education, Half Hollow Hills Central School District No. 5, Towns of Huntington and Babylon, Respondent, v Statewide Vending Corporation, Also Known as Statewide Industrial Catering of Dix Hills, Inc., Appellant, et al., Defendant. International Fidelity Insurance Company, Third-Party Plaintiff; Al Hirschberger et al., Third-Party Defendants-Appellants. (Action No. 1.) Statewide Industrial Catering of Dix Hills, Inc., Appellant, v Half Hollow Hills Central School District of Huntington and Babylon, Respondent. (Action No. 2.)
    Argued November 9, 1982;
    decided December 8, 1982

      APPEARANCES OF COUNSEL

      Solomon M. Lowenbraun for appellants.

      Jonathan Heidelberger for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (84 AD2d 754). Question certified answered in the affirmative. Appeals taken as of right dismissed, without costs, upon the ground that the orders appealed from do not finally determine the actions within the meaning of the Constitution.

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


text:
    In the Matter of Austin Erwin, Appellant, v Edward V. Regan, as Comptroller of the State of New York, Respondent.
    Decided December 8, 1982

      APPEARANCES OF COUNSEL

      Frank H. Penski for appellant.

      Robert Abrams, Attorney-General (Alan W. Rubenstein of counsel), for respondent.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (89 AD2d 753).

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


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    Samuel Wittlin, Respondent, v Rent Control Division, Department of Housing Preservation and Development of the City of New York, Appellant, et al., Respondent.
    Decided December 8, 1982

      APPEARANCES OF COUNSEL

      Harry Michelson and Stephen H. Deutschmeister for appellant.

      Allen Lituchy for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (89 AD2d 603).

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


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    In the Matter of the Estate of Jay B. Rappaport, Deceased. Monroe Chapin, Appellant; Alfred D. Rappaport, Respondent.
    Decided December 8, 1982

      APPEARANCES OF COUNSEL

      Mark Abramowitz for appellant.

      Richard W. Brewster for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, order of the Surrogate’s Court reinstated and matter remitted to the Surrogate’s Court, Nassau County, for determination of the time within which respondent may purge himself of the contempt. Question certified answered in the negative. By contesting the contempt application on the merits and failing to object in a timely manner to the omission of the notice and warning required by section 756 of the Judiciary Law, respondent waived the protections afforded by the statute.

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


text:
    In the Matter of Albert Friedman, Doing Business as Century 21 Capitol Homes, a Division of Capitol Real Estate, Inc., Appellant, v Basil A. Paterson, Individually and as Secretary of State, Respondent.
    Decided December 8, 1982

      APPEARANCES OF COUNSEL

      Joseph T. Hopkins for appellant.

      Robert Abrams, Attorney-General (Lew A. Millenbach of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (89 AD2d 701).

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


text:
    The People of the State of New York ex rel. Michael Barrett, Appellant, v New York State Board of Parole et al., Respondents.
    Submitted November 15, 1982;
    decided December 8, 1982
   Motion, treated as one for reargument, granted; upon reargument, determination of this court dated October 12, 1982 vacated, and motion for leave to appeal dismissed, without costs, upon the ground that relator, having escaped from custody, is no longer restrained of his liberty to such a degree as to entitle him to the extraordinary writ of habeas corpus (People ex rel. Wilder v Markley, 26 NY2d 648). [See 57 NY2d 608, 860.]


text:
    Chase Manhattan Bank, N.A., Respondent-Appellant, v Peter Fritz, Individually and as Agent for Warren Holding Co., et al., Appellants-Respondents.
    Submitted November 1, 1982;
    decided December 8, 1982
   Motion by the Fritz defendants and by defendant Warren Holding Co. 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. Motion by defendant Karbiner for leave to appeal dismissed for untimeliness.


text:
    Marsha Hollander, as Administratrix of the Estate of Carrie Hollander, Deceased, Appellant, v University of Rochester et al., Respondents.
    Submitted November 8, 1982;
    decided December 8, 1982
   Motion to vacate the Court of Appeals order of dismissal dated September 22, 1982 denied. [See 57 NY2d 777.]


text:
    L & M House of Jeans, Inc., Respondent, v Communication Control Systems, Inc., Appellant.
    Submitted November 22, 1982;
    decided December 8, 1982
   Motion to vacate the Court of Appeals order of dismissal dated October 29, 1982 denied. [See 57 NY2d 956.]


text:
    Myrna Labow, Respondent, v Ronald Labow, Appellant.
    Submitted November 22, 1982;
    decided December 8, 1982
   Motion to dismiss the appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that no substantial constitutional question is directly involved and upon the further ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Mimnorm Realty Corporation, Respondent, v Sunrise Federal Savings and Loan Association, Appellant.
    Submitted November 22, 1982;
    decided December 8, 1982
   Motion for reargument denied, with $20 costs and necessary reproduction disbursements. [See 57 NY2d 859.]

Judge Meyer taking no part.


text:
    Anthony P. Russo, Respondent, v Paul Dumont, Appellant.
    Submitted November 1, 1982;
    decided December 8, 1982
   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, § 17).


text:
    Marianne McGloin, Appellant, v John C. Austin, Respondent.
    Decided December 14, 1982

      APPEARANCES OF COUNSEL

      Austin Titus for appellant.

      Martin S. Rothman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (89 AD2d 583).

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


text:
    Arthur J. Levy, Appellant, v State of New York, Respondent.
    (Claim No. 62145-A.)
    Argued November 12, 1982;
    decided December 14, 1982

      APPEARANCES OF COUNSEL

      Arthur J. Levy, appellant pro se.

      Robert Abrams, Attorney-General (Peter H. Schiff and Richard J. Dorsey of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. The Special Prosecutor, and thus the State, was entitled to absolute immunity from a libel action based on an affirmation submitted in the course of a judicial proceeding (Imbler v Pachtman, 424 US 409, 421-423; see Toker v Pollak, 44 NY2d 211, 220).

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


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    In the Matter of Patti Ann H., Appellant-Respondent, v New York Medical College, Respondent-Appellant.
    Decided December 14, 1982

      APPEARANCES OF COUNSEL

      Leonard N. Flamm for appellant-respondent.

      Richard J. Concannon for respondent-appellant.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. The determination of the Appellate Division is correct in view of that court’s finding that New York Medical College’s dismissal of petitioner for academic cause was made in good faith and on the basis of the exercise of sound academic judgment (see Matter of Olsson v Board of Higher Educ., 49 NY2d 408; Tedeschi v Wagner Coll., 49 NY2d 652; Matter of Sofair v State Univ. of N. Y. Upstate Med. Center Coll. of Medicine, 44 NY2d 475). Respondent medical college’s cross appeal dismissed, without costs, upon the ground that the cross appellant is not a party aggrieved (CPLR 5511).

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


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    The People of the State of New York, Appellant, v Pasquale Montesano, Respondent.
    Argued November 12, 1982;
    decided December 14, 1982
    APPEARANCES OF COUNSEL

      Edward J. Kuriansky, Deputy Attorney-General (Bonnie H. Stein and Arthur G. Weinstein of counsel), for appellant.

      Salvador J. Capecelatro, Jr., Angelo N. Felice and Earle C. Bastow for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

Following a Medicaid fraud investigation defendant was indicted on one count of grand larceny in the third degree and multiple counts of offering a false instrument for filing. It was the prosecution’s theory that in the period from January to May, 1979 defendant stole in excess of $250' by filing false claim forms which grossly overstated the number of visits defendant had with Medicaid patients. After a jury trial defendant was convicted. On appeal the Appellate Division reversed and granted a new trial on the ground that testimony of an auditor of the Medicaid Fraud Unit, introduced by the prosecution, had been erroneously admitted into evidence.

The auditor, offered as an expert witness in accounting, testified over objection with respect to each of the claims filed by defendant. The appellate court based the reversal on its acceptance of each of three grounds advanced by defendant on appeal in support of its contention that the auditor’s testimony had been improperly received — “because its subject matter did not require expertise; because it impermissibly bolstered the credibility of other witnesses; and because it had the effect of invading the province of the jury” (84 AD2d 369, 370). Examination of the record discloses, however, that protest to the admission of the testimony was made on one ground only, that the testimony was an “improper intrusion of the province of this jury”.

In this circumstance, the determination of reversal at the Appellate Division did not satisfy the jurisdictional predicate that it be made on the law alone or on the law and such facts as, except for the determination of law, would not have led to the reversal (CPL 450.90, subd 2). Although the order states that the reversal was “on the law” the court’s opinion reveals that it was based in part on the appellate court’s conclusions that the subject matter of the auditor’s testimony did not require expertise (“simple arithmetic computations”) and because the testimony impermissibly bolstered the credibility of the patient witnesses. Timely objection was not taken on either of these two grounds.

Inasmuch as there is, therefore, no jurisdictional predicate, we have no choice but to dismiss the appeal (People v Dercole, 52 NY2d 956).

“In view of the dismissal thus mandated, this court, of course, has not reached the merits. It therefore goes without saying that our disposition does not reflect indorsement of the rulings contained in the opinion below (see Panico v Young, 46 NY2d 847).” (People v Dercole, 52 NY2d 956, 957, supra.)

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

Appeal dismissed in a memorandum.


text:
    In the Matter of Kenneth A. Kuczka, Appellant, v John V. Clark, as Commissioner of the Erie County Department of Personnel, et al., Respondents.
    Argued November 12, 1982;
    decided December 14, 1982

      APPEARANCES OF COUNSEL

      Barbara R. Heck James for appellant.

      Eugene F. Pigott, Jr., County Attorney (Justyn E. Miller of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (86 AD2d 980). Nor do we find any basis to disturb the determination implicit in the disposition in that court that appellant’s allegations of delay on the part of respondent commissioner in establishing the civil service list do not provide equitable grounds for the relief that he seeks.

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


author: Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Curtis Bolden, Appellant.
    Argued October 15, 1982;
    decided December 14, 1982
    APPEARANCES OF COUNSEL

      Martin Diennor for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

We do not reach the question of negative identification argued by defendant. On defendant’s attorney’s cross-examination of one of the victims, he asked whether she had ever said she did not get a good look at the perpetrator. Her unresponsive answer was that she had been shown a number of photographs at the time she made that statement. By failing to move to strike that unresponsive answer, defendant’s attorney opened the door to an explanation by the People concerning the circumstances under which she had seen the photographs (cf. People v Melendez, 55 NY2d 445, 451-452).

Gabrielli, J.

(concurring). The majority, by concluding that defense counsel opened the door to admission of negative identification testimony in this case, fails to address the legal question presented. Inasmuch as I believe this issue was properly presented for our review and because I believe that such testimony is relevant and should be received in evidence, I am compelled to concur in the result reached by the majority and to reach the main question of law argued by the parties. A brief review of the facts in this case is necessary to place the negative identification issue in its proper context and focus.

The defendant was convicted, inter alia, of two counts of rape in the first degree arising from two separate incidents. The modus operandi in both instances was similar. In each case, as the victim opened the door to enter her apartment, the defendant emerged from the hallway, forced his way inside, and then raped his victim. Defendant’s fingerprints were discovered in the apartment of Evelyn B., his second victim. His first victim, Anne L., was able to identify defendant at a pretrial lineup and again at trial. In addition, at trial, Detective Arthur Sheehy of the Bronx sex crimes squad testified that before defendant was apprehended, he showed Anne L. a photo array, which did not contain a picture of the defendant, and that Anne L. failed to identify any of the photographed individuals as the perpetrator of the crime. The issue on appeal is whether this negative identification testimony was properly admitted at trial.

It has long been the rule in New York that a witness cannot testify at trial that he overheard an eyewitness make a pretrial identification of the defendant (e.g., People v Trowbridge, 305 NY 471; People v Caserta, 19 NY2d 18; People v Malloy, 22 NY2d 559). Thus, in Trowbridge, we held that a police officer could not testify that he heard the victim of a robbery identify the defendant, then being held at police headquarters, as the person who had committed the crime. In contrast, GPL 60.30 provides that the identifying witness himself can take the stand and testify that, prior to trial, he identified the defendant in a lineup or under other circumstances.

The rationale behind the Trowbridge rule is twofold. First, the statement of the third-party witness is hearsay. An out-of-court statement of the declarant, communicated at trial by a third party, is generally hearsay if it is offered for the truth of the fact asserted in the statement (Richardson, Evidence [Prince, 10th ed], § 200). In the Trowbridge situation, the out-of-court declaration of the eyewitness is offered primarily for the truth of the identification statement.

The second reason underpinning the Trowbridge rule is that such third-party testimony improperly bolsters the identification testimony of an eyewitness (e.g., People v Trowbridge, supra; People v Malloy, supra). There is the possibility that mere repetition by a third party that an identification was made will improperly influence the jury’s belief in the reliability of the identification. Furthermore, there is also a danger that the jury will become confused by the testimony and will reason that both the eyewitness and the third-party witness could not be wrong about the identification (see Sobel, Eyewitness Identification, § 30). The testimony of the third party is not probative of whether the defendant was the person who committed the crime, but it could at best establish that the eyewitness, prior to trial, identified the defendant in the presence of others.

Third-party negative identification testimony is fundamentally different from the third-party identification testimony prohibited by Trowbridge and its progeny. First, negative identification testimony is not hearsay. Such testimony by a third-party witness is not offered in evidence for the truth of the statement made by the declarant eyewitness. Rather, it is offered only to prove that the eyewitness possesses the ability to distinguish the particular features of the perpetrator of the crime. In this case, the statement of Detective Sheehy that Anne L. failed to identify her assailant from a group of photographs, none of which showed the defendant, is not hearsay because it was offered in evidence solely to demonstrate the victim’s powers of perception, memory and reasoning.

In addition, negative identification testimony does not bolster the identification made by the eyewitness. Rather, it merely vouches for the credibility of the eyewitness. Negative identification testimony does not involve the continued repetition of evidence that an identification was made, and there is virtually no danger that it will lead the jury mistakenly to believe that someone other than the eyewitness himself positively identified the defendant as the perpetrator. On the contrary, this testimony is likely only to assist the jury in evaluating the credibility of the eyewitness.

That third-party identification testimony and third-party negative identification testimony are fundamentally different does not end our inquiry. For any evidence to be admissible, it must also be relevant to the issues presented at trial (1 Wigmore, Evidence [3d ed], § 9; Proposed Code of New York Evidence, § 401).

As a general proposition, negative identification evidence will be relevant in certain circumstances. When the reliability of an eyewitness identification is at issue, negative identification evidence can tend to prove that the eyewitness possessed the ability to distinguish the particular features of the perpetrator. Furthermore, it may also be useful in demonstrating that the eyewitness was unwilling simply to select anyone offered to him by the police. The common lineup, a fundamental part of the criminal identification process, unquestionably involves a form of negative identification evidence inasmuch as the selection by the eyewitness is evaluated in conjunction with his failure to identify the other participants in the lineup.

For these reasons, I do' not believe that a wholesale rejection of this form of evidence is either required or desirable. Instead, the admissibility of negative identification evidence must be evaluated in each individual case in terms of its relevance to the identification issue and with a view toward other pertinent considerations.

In each case, the relevance of negative identification testimony will depend largely on the extent to which there is some similarity between the features of the individuals the eyewitness declined to identify and the features of the defendant. If the appearance of the defendant is dissimilar to the appearance of the others, the negative identification testimony is of limited probative value and should be rejected.

Ordinarily, when evidence of a negative photo identification is sought to be introduced, the People should provide the court with the photographs that the eyewitness viewed and rejected. When it is not possible to produce these photographs, or where the negative identification was made of live suspects, the probative value of the negative identification testimony should be ascertainable through the testimony of witnesses. If the probative value of the evidence cannot otherwise be established, it should be deemed inadmissible.

It has also been suggested that one of the dangers inherent in the acceptance of negative identification testimony is that this form of evidence is susceptible of being manufactured for trial (see People v Moss, 103 Misc 2d 245, 248). Of course, our courts should not countenance such behavior, and in the event that it appears that a negative identification was motivated by anything other than the sincere efforts of the police to facilitate the identification of the perpetrator of the crime, testimony concerning that negative identification should be rejected.

Turning to the facts of the present case, it is evident that the trial court did not err in admitting the third-party negative identification testimony given by Detective Sheehy. The ability of Anne L. to identify her assailant was clearly in issue. Although Detective Sheehy was unable to produce the photographs viewed by this eyewitness, he was able to give substantial testimony on cross-examination concerning the similarity of the individuals in the selected photographs to the description given by the eyewitness of the perpetrator. Detective Sheehy testified that all of the photographed individuals were male blacks having short afro haircuts and no beards. Defense counsel might have been able to draw out further evidence of similarity, or possibly established dissimilarity, but the record reveals that at this juncture he chose not to continue this line of inquiry. It cannot be said on the basis of this record that the negative identification testimony given by Detective Sheehy should have been excluded as irrelevant.

In addition, there is no basis in the record for concluding that the photographs were shown to the eyewitness to “shore-up” her identification testimony at trial. Such being the case, there appears to have been no impediment to the admission of this testimony in evidence.

For all of the foregoing reasons, I would affirm.

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

Order affirmed.

      . The eyewitness may not testify, however, to making a pretrial photographic identification of the defendant (e.g., People v Cioffi, 1 NY2d 70).

      . The fact that an eyewitness cannot testify that he made a pretrial photographic identification of the defendant is irrelevant in this instance (see, e.g., People v Caserta, 19 NY2d 18; People v Cioffi, 1 NY2d 70). A primary concern in the use of such testimony is that the identification of the defendant from among a group of mug shots will indicate to the jury that the defendant has a prior criminal record. In' the present case, in contrast, Detective Sheehy merely testified that the defendant was not identified from a group of mug shots.

      . Detective Sheehy apparently pulled mug shots from police files which showed individuals having characteristics similar to those described by Anne L: When she failed to identify her assailant from among these photographs, Detective Sheehy returned them to the files without keeping a record of which photographs had been viewed.


text:
    The People of the State of New York, Respondent, v Angel Claudio, Appellant.
    Submitted November 29, 1982;
    decided December 14, 1982
   Motion to vacate the Court of Appeals order of dismissal dated November 1,-1982 granted, the appellant’s papers on appeal to be served and filed on or before January 15,1983. [See 58 NY2d 690.]


text:
    In the Matter of Yvonne B. Foss, Appellant, v Edward V. Regan, as State Comptroller, Respondent.
    Submitted November 15, 1982;
    decided December 14, 1982
   Motion for enlargement of time dismissed upon the ground that the Court of Appeals does not have power to enlarge the time within which to move for leave to appeal. CPLR 5520 (subd [a]) does not apply to the omission of failure to serve in view of movant’s failure to timely file the required papers on the motion for leave to appeal. Motion for leave to appeal dismissed for untimeliness.


text:
    Samuel L. Kountz et al., Appellants, v State University of New York et al., Respondents.
    Submitted October 25, 1982;
    decided December 14, 1982
   Motion for leave to appeal denied. On the court’s own motion, plaintiffs’ appeal taken as of right pursuant to CPLR 5601 (subd [d]) dismissed, without costs, upon the ground that the Appellate Division order, entered February 27,1978 [61 AD2d 835], sought to be reviewed does not necessarily affect the final order appealed from.


text:
    Rita M. La France, as Administratrix of the Estate of Andrew A. La France, Deceased, Appellant, v Niagara Mohawk Power Corporation, Respondent.
    Decided December 14, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    New York City Transit Authority et al., Respondents, v William Lindner et al., Appellants.
    Submitted November 8, 29, 1982;
    decided December 14, 1982
   Motions for leave to appeal dismissed upon the ground that the order of the Appellate Division [83 AD2d 573] sought to be reviewed does not necessarily affect the judgment sought to be appealed from (CPLR 5602, subd [a], par 1, cl [ii]).


text:
    Jeffrey Poitier, Respondent, v Fimag Realty Corp. et al., Appellants.
    Submitted October 25, 1982;
    decided December 14, 1982
   Motion for leave to appeal dismissed for failure to demonstrate timeliness of the motion as required by rule 500.9 (a) (1) of the Rules of the Court of Appeals (22 NYCRR 500.9 [c] [1]) (see Manolakos v Manolakos, 56 NY2d 591).


text:
    Barbara F. Spindel, Also Known as B. R. Fox, Appellant, v New York Telephone Company et al., Respondents.
    Decided December 14, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not a party aggrieved by the order of the Appellate Division (CPLR 5511; Cohen and Karger, Powers of the New York Court of Appeals, § 91, pp 393, 394).


text:
    The People of the State of New York, Respondent, v Marvin Ellis, Appellant.
    Argued November 11, 1982;
    decided December 15, 1982

      APPEARANCES OF COUNSEL

      Allen S. Stim for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, motion to suppress statements made by defendant in response to police interrogation at the 24th Precinct granted, and a new trial ordered:

Defendant, at the request of police investigating a homicide, notified the local precinct house by telephone that he, accompanied by his attorney, would report for questioning. On arriving at the precinct, defendant asked whether his attorney was there and was told that he had not yet arrived. Defendant then met with the officer in charge of the investigation, who had received defendant’s earlier message. Defendant told the officer that he was awaiting his attorney’s arrival, and gave the officer the attorney’s business card. The officer informed defendant of his Miranda rights and asked whether he would answer questions. In response to the interrogation, defendant made inculpatory statements. Defendant’s pretrial suppression motion was denied with respect to these statements. The statements were admitted at trial. He was convicted of manslaughter in the first degree.

Defendant’s acts adequately apprised the police that he had retained an attorney with respect to the matter under investigation and that he wished his attorney to be present during questioning. Thus, defendant, although not in custody, had affirmatively acted to interpose an attorney between himself and the police during questioning (see People v Skinner, 52 NY2d 24). Inasmuch as defendant’s right to counsel had attached, and the right could not be waived in the absence of counsel, defendant’s statements made in response to the police interrogation were improperly obtained and should have been suppressed. The fact that defendant’s attorney had not directed that the police cease interrogation, as was the case in Skinner, is immaterial. We note that although Skinner, which requires reversal in this case, was decided well after the trial court denied defendant’s motion to suppress, we nevertheless are required to apply the rule retroactively to those cases in the appellate process (see People v Pepper, 53 NY2d 213).

Defendant also argues that the statement he blurted out to police while in the holding pen prior to his arraignment should have been suppressed. Both courts below found this statement to have been spontaneous, and this court finds no basis to disturb this finding as a matter of law (cf. People v Lanahan, 55 NY2d 711).

Defendant’s other claims have been considered and are found to be without merit.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v John Perniciaro, Appellant.
    Argued November 12, 1982;
    decided December 15, 1982

      APPEARANCES OF COUNSEL

      Paula G. de Dominici and Charles F. Murphy for appellant.

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

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed and the indictment dismissed.

Defendant was convicted, after a nonjury trial, of reckless endangerment in the second degree and harassment. The Appellate Division modified by reversing the conviction for harassment and dismissing that count of the indictment on the ground that it was not proved beyond a reasonable doubt.

The conviction for reckless endangerment should also be reversed and the count of the indictment charging that crime should be dismissed. Viewed in a light most favorable to the prosecution, the evidence is legally insufficient to support defendant’s conviction for reckless endangerment in the second degree. The evidence established merely that defendant was a passenger in an automobile that stopped several times behind the complainant’s truck, making it difficult for complainant to move the truck, and that defendant was part of a group of five men when an unidentified member of the group directed threatening statements at the complainant.

There was no evidence that defendant recklessly engaged in conduct that created a substantial risk of serious physical injury to complainant (see Penal Law, § 120.20), or that defendant solicited, requested, commanded, importuned, or intentionally aided the driver of the car to engage in such conduct (see Penal Law, § 20.00). Thus, the statutory elements of the crime were not proved.

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

Order, insofar as appealed from, reversed, etc.


author: Fuchsberg, J. Meyer, J.

text:
    County of Broome, Respondent, v Travelers Indemnity Company, Appellant.
    Argued November 12, 1982;
    decided December 15, 1982

      APPEARANCES OF COUNSEL

      John P. Rittinger for appellant.

      John E. Murray, County Attorney (Alfred Paniccia, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (88 AD2d 720).

Concur: Judges Jasen, Gabrielli, Jones and Wachtler. Judge Fuchsberg concurs in an opinion. Judge Meyer dissents and votes to reverse in another opinion in which Chief Judge Cooke concurs.

Fuchsberg, J.

(concurring). This is a very close case, both on the merits and in its litigation history. The Appellate Division’s order of reversal was accompanied by an unsigned memorandum to which one Judge filed a partial dissent and a second a full dissent. In our own divided court, the two dissenters support their views in a carefully molded opinion which critically analyzes the reasoning and authorities on which the majority at the Appellate Division acted. In this circumstance, instead of joining in the majority’s summary adoption of the memorandum below, I prefer to articulate the reasons for my vote.

At issue in this declaratory judgment action is plaintiff County of Broome’s entitlement to a defense and indemnification under a “premises and operations” policy of liability insurance issued by defendant The Travelers Indemnity Company. The claim on which The Travelers disclaimed was one brought against the county by the owner of an automobile which was damaged when it unauthorizedly was moved by a third party on an exhibition floor of the county’s Veteran’s Memorial Arena, where it had been placed for exhibit at the direction of licensees of the county who were sponsoring a one-day show. The pivotal point is whether, under the circumstances in this case, an exclusionary clause, under which property in the “care, custody or control of the Insured or as to which the Insured is for any purpose exercising physical control” relieved the carrier of responsibility. The sponsors of the show, in obtaining permission to use the arena for the occasion, had agreed, inter alia, to secure property damage insurance for the protection of the county. It presumably was in alleged fulfillment of this obligation that, naming the county as an additional insured, the sponsors purchased the policy which contained the clause in controversy.

The arrangement for the use of the arena was memorialized in a written rental agreement, which, in form required by the county, also provided that the show was to take place on the weekend day of January 6, 1980 and, in preparation for its opening, granted the sponsors access to the premises on the previous day, January 5, when their displays could be brought in and set up by the sponsors and their fellow exhibitors. In addition to the rental fee per se, the agreement also called for payment of so-called “reimbursement expenses” by way of “all expenses for security in relation to the Licensee’s performance, and all usual expenses incurred by the Arena in connection with said performance”.

It was on the evening of January 5, after the automobile, which the show’s sponsors had obtained from a local dealer, had been brought in and located at the direction of the sponsors, that the car, whose keys had been left in its ignition by those who placed it there, was damaged. At the time, the only county employee on duty at the arena was its regular backdoor guard, who, attracted by a bright light on the exhibition floor, came upon the automobile and the fleeing individual who had crashed it; it is undisputed that the backdoor guard’s assignment was keyed to the arena as such rather than to the activities or wares of exhibitors, for he was kept on duty around the clock on weekends regardless of whether a show or other event was being carried on by others. Also not controverted is that, while other security guards whose duties went beyond the limited ones of a backdoor guard were engaged, these were only for those hours on January 6 during which the public was to be admitted to the show. It is noteworthy, therefore, that, at an examination before trial in the underlying action brought for the damage to the automobile, while the spokesperson for the licensee testified that she had asked the arena about security on the move-in day, when asked whether it was to be provided specifically for the items being exhibited, her answer in the end was a conclusory “I would have understood that to be so. Otherwise why would I need security?”

Essentially on this record, Special Term opined that the automobile, at the time it was damaged, was, within contemplation of the exclusionary clause, in the care and custody of the county. On cross motions, it thereupon granted summary judgment to the plaintiff. However, the Appellate Division, of the view that the county had no meaningful “right to exercise physical dominion over the vehicle”, modified the order appealed from by granting summary judgment to the county instead. For the reasons which follow, I agree with the result it reached.

At the outset of my analysis, I recognize that an exclusion of coverage does not occupy a subordinate position in an insurance policy. For it is established that the protection afforded an insured is spelled out by the net balance which results from a calculation in which a policy’s insuring and exclusionary provisions are each entitled to full weight. Just as the former indicate what coverage is included, so, with equal force, the latter indicate what is not (Schiff Assoc. v Flack, 51 NY2d 692, 699).

Concomitantly, of course, when any ambiguity lurks in the language of an exclusion, as in all other parts of a contract of insurance, it is to be liberally construed in favor of the insured, and no less so if this benefits an unnamed rather than a named assured.

So examined, since the clause before us does not specify whether the “care, custody or control” of which it speaks is that of the arena and its contents as a whole or of each of its contents taken separately, the Appellate Division’s conclusion that its applicability was “dependent upon the insured’s rights and acts concerning the specific damaged property out of which the claim of liability arises” appears eminently correct. All the more is this so in the context of a policy designed, as this one was, to cover, among other things, “exhibitions”, comprised, as these most often are, of a miscellany of objects. I therefore focus on the county’s relationship to the automobile.

In that connection, one first must look to see not only whether, in the literal language of the exclusion, the county ever assumed physical “care, custody or control” of the car, but whether it did so “for any purpose”. Realistically reviewed, I cannot find that it did. Unlike the arena for whose use the sponsors of the show had contracted, at all relevant times the vehicle belonged to the automobile agency and the arrangements for its display at the arena were those made and carried out solely as agreed between the agency and the sponsors, and without the particular permission or participation of the county at all. Indeed, before it arrived, the county had no knowledge that an automobile would be part of the exhibit. Moreover, the record indicates that the county played no part in controlling the time, the place or the movements of the car when it was brought to the arena on January 5 or, later that day, when, at the direction of the sponsors, and to facilitate their arrangement of other exhibits, it was relocated to the area where the trespass to it was to occur.

Most telling perhaps in determining whether “care, custody or control” of the exhibits was lodged in the county is the fact that the agreement, which, by the by, contained a merger clause, did not reserve to it any right to interfere with, much less veto, these or any other aspects of the supervision of any parts of the exhibit. Though, as “standard procedure” under a specific provision of the agreement, the rear guard’s wages, along with other arena “operating costs”, would be charged to licensees as additional financial emoluments by which the county was recompensed for turning over use of the premises to exhibitors, there is nothing to suggest that the rear guard’s duties in fact were enlarged to include specific property of the exhibitors.

For all practical purposes, therefore, the premises were nothing more than the locus for a private event. And, once the county had licensed the arena to the sponsors, by any commonsense definition of the phrase “care, custody and control” the exhibits were to continue in the hands of the sponsors and their exhibitors alone.

Nevertheless, emphasizes the carrier, the county provided a guard. So it did. But the duties of the only guard provided at the time of the occurrence, either as the employee of the county or, all the more, as the “special employee of the sponsors” envisioned in the dissent, were those of the backdoor guard, to be performed alike whether an arena event had been scheduled or not. These obviously were keyed to security of the county’s arena as a whole rather than the use or abuse of particular items of merchandise brought there temporarily by exhibitors. On such occasions, his function would not be unlike that of a night guard, commonly employed by the owner of a tenanted loft or office building; the existence of such an employee, though he possesses a master key for access to tenants’ premises for the making of “rounds”, would hardly be thought to put the tenant’s merchandise in the “care, custody or control” of the landlord. Nor, for the purposes of summary judgment, did the conclusory depositional testimony of the sponsors’ representative, that she “understood” that more particular guarding was to be provided, suffice to alter this picture (Sutton v East Riv. Sav. Bank, 55 NY2d 550, 553-554).

Finally, on a factually related subject, unlike the dissenters, I find no difficulty with the Appellate Division’s interpretation of the agreement’s provisions for payment for “all expenses for security in relation to the licensee’s performance” as obligating the county to provide security only on January 6, the scheduled day of the show itself, and not on the previous day when the damage occurred. To place the regular guarding not specially employed for the day of the show within the ensuing provision for “usual expenses incurred by the arena” as well as to distinguish it from “expenses for security in relation to the licensee’s performance”, is consistent with the basic construction principle applicable to contracts and statutes (Messina v Lufthansa German Airlines, 47 NY2d 111, 115, mot for rearg den 47 NY2d 1012), that, if possible, all parts of an agreement are to be given meaning (Sanders v Winship, 57 NY2d 391, 396).

The reality then is that the county was making its arena available as a community resource, while looking to licensees such as the sponsor of the show here to actually put it to use. In this context, the court accorded the words of the agreement their fair and reasonable meaning.

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

Meyer, J.

(dissenting). The order of the Appellate Division should be reversed and the order of Special Term should be reinstated, the county having failed to produce evidentiary proof sufficient to require a trial on the issue of care, custody or control within the meaning of the policy exclusion.

The fallacy in the reasoning of the Appellate Division, adopted by the majority, is in its conclusion, on the law, that the written agreement between the county and the sponsors of the bridal show limited the county’s security obligation to the day of the performance. The agreement required the sponsors to reimburse the county for “all expenses for security in relation to the Licensee’s performance” (emphasis supplied). Security in relation to the performance would necessarily be limited to security on the day of the performance only if all activity relating to the performance took place on that day. Because there could be no performance without the displays for the show having been set up, the setup activity is related to the performance in any reasonable sense of the words “in relation to” and, therefore, security in relation to the performance may include security beginning with the setup. That the county understood that it did and so agreed is evident from the fact that it permitted the show to be set up on the day before the public performance, the fact that the contract form, which it drew, elsewhere referred to the day of the performance as “the Presentation” and specified the date of “the Presentation” as “January 6, 1980,” and the fact that the bill submitted by the county to the sponsors for security included the wages of both the regular guards who were on duty during the setup period the evening before the day of the performance and the additional security personnel specially hired for the day of the performance only.

Because the words “in relation to” are themselves ambiguous, and all the more so in view of the contract’s use of the words “the Presentation” to indicate the day of performance, parol evidence was admissible, notwithstanding the merger clause in the contract, to explain the meaning of “in relation to the Licensee’s performance” (Richardson, Evidence [Prince, 10th ed], § 625; Fisch, New York Evidence [2d ed], § 58). The testimony of the sponsor’s representative — that she had specifically asked the county for security on Saturday because there would be merchandise there on Saturday and had been assured that there would be security there on both Saturday and Sunday — would, therefore, present an issue for the trier of fact were it not for the county’s failure to come forth with evidentiary proof in contravention of that testimony (Zuckerman v City of New York, 49 NY2d 557).

The Appellate Division’s additional rationale — that “defendant presumably ascertained what the operation of the exhibition it insured entailed, including the necessity for bringing merchandise to the arena the day before the exhibition” (88 AD2d, p 721) — not only finds no support whatsoever in the record, but also is a non sequitur. The policy was for comprehensive general liability insurance and, therefore, covered both personal injury and property damage. Moreover, it contained 15 separate exclusions of specified types of property damage, each of which excluded coverage for the risk of damage to the merchandise to be shown in the exhibit. A more potent argument would be that the insurer by failing to disclaim as to the sponsors has waived its care, custody and control exclusion because the security guard, whose time was being paid for by the sponsors, was a special employee of the sponsors (cf. Delisa v Arthur F. Schmidt, Inc., 285 NY 314; see PJI 2:238, and comment), but that possibility, though dimly suggested in the county’s papers, was not considered by the courts below and is not before us. To tax the carrier, however, with the obligation specifically to exclude coverage for damage to property which the printed provisions of its policy expressly excludes is to turn the rule of Pimpinello v Swift & Co. (253 NY 159) on its head, at least with respect to insurance carriers. There may be cases in which the facts would justify that result, but the county has not shown this to be such a case and absent such a demonstration the courts are not justified in rewriting the policy. Particularly is this so, in light of the fact that the policy was issued three days in advance of the exhibition, for it follows that, if presumptions are to be indulged, the policy presumably was available for review by the sponsors and the county beforehand but was not objected to by either. Allison v National Ins. Underwriters (487 SW2d 257 [Mo]), relied on by the Appellate Division majority, is distinguishable because there the handling of nonowned property which the insured sought to bring within the exclusion was part of the coverage for which the insured had paid an extra premium and as to which the insurer had extended specific coverage.

Finally, the county’s suggestion that the policy exclusion would only apply if it had exclusive control, as distinct from possession, of the automobile that was damaged affords no basis for denial of summary judgment to the carrier. It is not determinative, as the carrier suggests, that most of the cases on which the county relies involved real rather than personal property (Dubay v Trans-America Ins. Co., 75 AD2d 312, 318, mot for lv to app den 51 NY2d 709; see, also, North Amer. Iron & Steel Co. v Isaacson Steel Erectors, 36 AD2d 770, 771, affd 30 NY2d 640). It is rather, as pointed out in Dubay (supra; see, also, Ann., 8 ALR4th 563, 583), the nature of the property and the insured’s relation to it which are determinative and which distinguish those cases. Thus in Greater N. Y. Mut. Ins. Co. v Professional Security Bur. (61 AD2d 975), Security Bureau, the insured, had no key to the building that was damaged, was not authorized to enter the building, and was subject to the orders of the owner’s director of security; in Neville v Continental Cas. Co. (26 AD2d 853) plaintiff, repairing a wheel on a trailer, was held not to have care, custody or control of the cargo on the trailer damaged by a fire started by plaintiff’s use of a blowtorch, because the trailer driver remained in charge of the cargo and never relinquished the keys to the trailer; in Employers’ Mut. Liab. Ins. Co. of Wis. v Puryear Wood Prods. Co. (247 Ark 673) the truck had been left on the insured’s premises with the keys in it but under instruction, which the court found determinative, that insured was not to move the truck but to call the owner back if it was necessary to move it; and in Rochester Woodcraft Shop v General Acc. Fire & LifeAssur. Corp. (35 AD2d 186) the trailer had been left on insured’s premises without any obligation on the insured’s part to guard or safely maintain it.

Though exclusivity of control will bring property within the exclusion, exclusivity is not a sine qua non of exclusion. The exclusion may be applicable whether the insured’s control is exclusive or in conjunction with others (Hardware Mut. Cas. Co. v Mason-Moore-Tracy, Inc., 194 F2d 173, 175-176; see Monari v Surfside Boat Club, 469 F2d 9; International Derrick & Equip. Co. v Buxbaum, 240 F2d 536; Cooke, Care, Custody or Control Exclusions, 1959 Ins LJ 7, 13), if the insured’s relationship to the property is such as to constitute control. Having failed to contest the evidence presented by the carrier that the county undertook to provide security on both January 5 and 6, the county is in the position of arguing that, although it had so undertaken, although the arena and the car and other exhibition merchandise within it were in the exclusive possession of its security guard and although the keys to the car were known by the county’s events co-ordinator to have been left in the car and, therefore, were likewise within the county’s possession, the county’s relationship to the car was not sufficient to constitute care, custody or control. The answer lies in the following quotation from Warner Corp. v Burns Int. Security Servs. (527 F2d 1025, 1030; see, also, Ann., 8 ALR4th 563, 582) holding a watchman service to be within the exclusion, though there was no bailment to the guard service of the goods in the warehouse the service had contracted to guard: “The instant case presents a situation where intimate physical handling is minimal, but the right and need to exclude others is inseparable from the nature of the protective service being rendered. There is nothing to suggest that at the time of the fire, Burns’ power to exclude others from the warehouse was being shared with anyone else.”

To deny applicability of the exclusion in this case is to impose upon the carrier liability for which it has not received a premium, and for a fault which is chargeable to the sponsors or to the county but not to the carrier. There should, therefore, be a reversal.

Order affirmed, etc.

      . As the Appellate Division correctly observed, this policy was not the typical “Owners, Landlord’s and Tenants” one, the risk here being defined as “premises and operations” involved in “exhibitions in buildings — trade or educational exhibitions”.

      . In attempting to distinguish Greater N. Y. Mut. Ins. Co. v Professional Security Bur. (61 AD2d 975), Rochester Woodcraft Shop v General Acc. Fire & Life Assur. Corp. (35 AD2d 186) and Neville v Continental Cas. Co. (26 AD2d 853) on the ground that their findings of absence of control were based on a physical separation, the dissent loses sight of the fact that, while some separations may be spatial and others functional, the underlying principle is the same (see Dubay v Trans-America Ins. Co., 75 AD2d 312, 318, mot for lv to app den 51 NY2d 709).

      . Since this opinion does not turn on whether the backdoor guard was a general employee of the county or an ad hoc one of the sponsors, or on whether the policy procured by the sponsors complied with the licensing agreement, both referred to in the dissent, I have no occasion to treat with either.

      . Appellant’s brief in this court makes no issue of so much of the Special Term order as required it to pay the county’s cost to defend up to July 23, 1981, the date of Special Term’s decision. The county has contented itself with citing the dictum from Sturges Mfg. Co. v Utica Mut. Ins. Co. (37 NY2d 69, 74), which supports that requirement. The propriety of that part of the order, therefore, is not considered.

      . That the sponsors may not properly have met their obligation under the license agreement to provide property damage insurance for the county, if that be the result, is a matter between the sponsors and the county which cannot, however, affect the carrier’s obligation absent a factual demonstration that the carrier represented that the policy issued met that contract obligation.


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    In the Matter of Owen Quinn, Respondent, v Alfred E. Werner, as Commissioner of Aviation and Transportation for the Town of Islip, et al., Appellants.
    Decided December 15, 1982

      APPEARANCES OF COUNSEL

      William R. Bennett, Town Attorney, for appellant.

      James V. Fallon, Jr., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified with costs to appellants, by reinstating the determination of the commissioner as to the second charge and remitting the matter to Supreme Court, Suffolk County, with directions to remand to the commissioner for imposition of penalty as to the second charge alone. As so modified, order affirmed. We agree with the Appellate Division that the determination suspending and demoting the petitioner on the ground that the petitioner failed to investigate and report on an incident which occurred on his employer’s premises is not supported by substantial evidence. There is substantial evidence, however, to sustain the charge of insubordination arising from the petitioner’s disavowal of any knowledge of the incident to his superior.

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


text:
    In the Matter of Timothy C. Morris, Appellant, v County of Suffolk, Respondent.
    Decided December 15, 1982

      APPEARANCES OF COUNSEL

      Philip H. Sanderman for appellant.

      David J. Gilmartin, County Attorney (V. Anthony Maggipinto of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. We find no error of law in the determination of the Appellate Division.

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


text:
    Q.P.I. Restaurants Ltd., Appellant, v Desmond Slevin et al., Respondents.
    Decided December 15, 1982

      APPEARANCES OF COUNSEL

      David G. Samuels for appellant.

      Seymour I. Cohen for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, motion to vacate the default judgment denied and matter remitted to the Appellate Division, First Department, for consideration of the issues not already passed upon by that court. Question certified answered in the affirmative. The Appellate Division abused its discretion as a matter of law in conditionally vacating the default judgment taken against defendants as a consequence of their failure to answer, for which the only excuse offered was law office failure (Eaton v Equitable Life Assur. Soc. of U. S., 56 NY2d 900).

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


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    The People of the State of New York, Respondent, v Charles Lee, Appellant.
    Argued November 11, 1982;
    decided December 15, 1982

      APPEARANCES OF COUNSEL

      David Lenefsky for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the opinion of Justice John Carro at the Appellate Division (83 AD2d 311; see, also, People v Arnau, 58 NY2d 27). In view of the additional finding of independent source made by the Appellate Division, we note that its modification was “upon the law and such facts which, but for the determination of law, would not have led to * * * modification” with respect to the question reviewed (CPL 450.90, subd 2, par [a]) and is, therefore, reviewable by us.

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

Order affirmed in a memorandum.


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    The People of the State of New York, Respondent, v Charles Lee, Appellant.
    Argued November 11, 1982;
    decided December 15, 1982

      APPEARANCES OF COUNSEL

      David Lenefsky for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

It cannot be said that the Trial Judge’s warning to defendant’s witness “effectively drove that witness off the stand” (Webb v Texas, 409 US 95, 98). The threat in Webb, as in the other cases cited by defendant (People v Ramos, 63 AD2d 1009; United States v Reed, 421 F2d 190; Berg v Morris, 483 F Supp 179) was of prosecution for perjury. Here there was no threat. Rather the Trial Judge, after receiving the concurrence of defendant’s attorney to her doing so, informed the witness (who it was said would testify that he was the one, in fact, who sold the narcotics) that he had the right to remain silent and plead the privilege against self incrimination, that he should come in with an attorney, and that if he testified his testimony “should be referred very strongly to the District Attorney for appropriate action.” Although the words “very strongly” would have been better left unsaid, the warning constituted no more than a statement that if the witness testified to his own commission of a crime the District Attorney would be so advised. As we have recognized in People v Shapiro (50 NY2d 747), there is an obligation to warn a witness though not in terms so intimidating as to interfere with his choice whether to testify. The warning here given did no more than advise the witness of possible consequences of which he was entitled to know before deciding to testify.

We have considered defendant’s other contentions and find them either unpreserved or without merit.

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

Order affirmed in a memorandum.


text:
    Frank P. De Luca, Appellant, v New York State Employees’ Retirement System et al., Respondents. Albert A. Oppido, Intervenor.
    Decided December 15, 1982
   Appeal transferred to the Appellate Division, First Department, without costs, by the court sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    Frank Dzurenko, Appellant, v Jordache, Inc., et al., Respondents, et al., Defendant.
    Submitted November 29, 1982;
    decided December 15, 1982
   Motion to dismiss appeal as against defendant Hicks & Griest, Inc., granted and that portion of the appeal dismissed as untimely taken (CPLR 5513, subds [a], [b]), with costs and $20 costs of motion.


text:
    Eastern Milk Producers Cooperative Association, Inc., Appellant, v State of New York Department of Agriculture and Markets et al., Respondents.
    Submitted November 22, 1982;
    decided December 15, 1982
   Motion for leave to appeal dismissed for failure to demonstrate timeliness of the motion as required by rule 500.9 (a) (1) of the Rules of the Court of Appeals (22 NYCRR 500.9 [c] [1]) (see Manolakos v Manolakos, 56 NY2d 591).


text:
    In the Matter of Frank L. Miller, Appellant.
    Decided December 15, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division (CPLR 5601).


text:
    Edward H. Phillips, Jr., Appellant, v City of Syracuse et al., Respondents, et al., Defendants.
    Submitted November 29, 1982;
    decided December 15, 1982
   Motion to amend the Court of Appeals order dated November 9,1982 by striking costs therefrom denied. [See 57 NY2d 996.]


text:
    Leonard A. Wood et al., Appellants, v American Sports Co., Inc., et al., Respondents.
    Submitted November 29, 1982;
    decided December 15, 1982
    APPEARANCES OF COUNSEL

      Anthony S. Bottar for appellants.

      S. Paul Battaglia for respondents.
   OPINION OF THE COURT

Motion for leave to appeal dismissed upon the ground that plaintiffs waived any right to seek leave to appeal by accepting the benefits of the determination at the Appellate Division (Cohen and Karger, Powers of the New York Court of Appeals, § 95, pp 405-406).


text:
    In the Matter of 52 East 19th Street Co., Petitioner, v Quintino Tesciuba, Respondent, and Anthony B. Cataldo, Appellant.
    Decided December 15, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the appeal does not lie (NY Const, art VI, § 3; CPLR 5601).


text:
    The People of the State of New York, Respondent, v Joaquin Fernandez, Appellant.
    Decided January 6, 1983
    APPEARANCES OF COUNSEL

      Bennett M. Epstein for appellant.

      Robert M. Morgenthau, District Attorney (Joyce P. Adolfsen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

While on motor patrol two police officers received a radio transmission advising that a 5-foot 10-inch Hispanic with an afro hairstyle, wearing a white T-shirt and light blue pants, had been observed at the intersection of 96th Street and Amsterdam Avenue in Manhattan carrying a gun wrapped in a white shirt. On proceeding to that intersection the officers saw no one in the group of people there assembled who fit the radio description. They did, however, observe defendant leaving that group and walking south on Amsterdam toward 95th Street. He is Hispanic, and, according to the suppression testimony, was wearing a banlon-type light shirt, and was carrying a white shirt in his right hand. The officers followed him, and after he had rounded the corner and mounted the steps of a building on 95th Street, one officer got out of the car and ran up behind him. As defendant was about to open the door with his left hand and was lowering his right hand to place the white shirt on the ground the officer grabbed the hand with the shirt, felt a hard object inside the shirt and then discovered that it was a .22 caliber revolver. The other officer had approached, drawn his gun, and ordered defendant not to move. On discovery of the gun, the officers placed defendant under arrest.

Special Term, concluding that the intrusion was appropriate to the circumstances and that the police officer acted properly, denied defendant’s motion to suppress the banlon shirt, the white shirt and the gun. The Appellate Division affirmed over the dissent of two members of the panel. We find no basis to disturb the determination of the courts below.

At the outset we observe that the determination that there was sufficient warrant for the action taken by the police involves resolution of a mixed question of law and fact and is accordingly not subject to review in our court in the absence of error as a matter of law (People v Harrison, 57 NY2d 470).

It serves no useful purpose in this case, as the majority at the Appellate Division noted, to fracture and dissect the course of events or to categorize the various components of the progress of the police action. No challenge is raised to the authenticity of the radio transmission. The police action was not rendered illegal because there was an inconsistency as to some elements of the description (defendant’s height and hairstyle — he is only five feet, six inches tall and had wavy hair combed straight back — and as to the particulars of the shirt defendant was wearing) or because there was a failure of proof as to correlation of another element (light blue pants). The unusual identifying element of carrying a white shirt in the hand, coupled with geographical proximity, provided ground for reasonable suspicion in the circumstances.

The intrusion was minimal in the circumstances of this case. There was no pat down or frisk. Defendant’s person was touched only to the extent necessary for the officer to grab the white shirt which proved to be concealing the gun. There was no other intrusion of defendant’s person. It does not appear that the command of the second officer to defendant not to move preceded the recovery of the gun.

In the somewhat unusual circumstances of this case we cannot conclude that it was error as a matter of law to have denied defendant’s motion to suppress.

We have considered defendant’s other contentions and find them to be without merit.

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

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


text:
    KVR Realties, Inc., Respondent, v Treasure Star, Inc., Appellant, et al., Defendants.
    Decided January 6, 1983

      APPEARANCES OF COUNSEL

      Charles M. Newman for appellant.

      Philip H. Schaeffer for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. The subordination and nondisturbance agreement between the plaintiff mortgagee and the tenant effectively rendered the tenant’s rights to possession under the lease superior to plaintiff’s rights under the mortgage. Thus the tenant need not be joined as a necessary party to this foreclosure action under RPAPL 1311. Pursuant to the terms of the lease, appellant expressly agreed that the tenant would be free at any time to obtain a nondisturbance agreement from any mortgagees, and therefore it cannot be said that appellant’s rights as landlord were unfairly modified by the unilateral action of the tenant (cf. Seely’s Son v Fulton-Edison, 52 AD2d 575).

Finally, no disputed issues of fact are presented which would require a trial and, accordingly, the award of summary judgment was appropriate.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, and question certified answered in the affirmative in a memorandum.


text:
    Joseph Meadvin, Respondent, v Buckley-Southland Oil Company, Appellant.
    Submitted December 13, 1982;
    decided January 6, 1983
   Motion to vacate the Court of Appeals order of dismissal dated November 19, 1982 granted. [See 58 NY2d 690.]


text:
    New York City Transit Authority et al., Respondents, v William Lindner et al., Appellants.
    Submitted December 13, 1982;
    decided January 6, 1983
   Motion for leave to appeal dismissed upon the ground that the order of the Appellate Division [83 AD2d 573] sought to be reviewed does not necessarily affect the judgment sought to be appealed from (CPLR 5602, subd [a], par 1, cl [ii]).


text:
    The People of the State of New York ex rel. Ronald Simpson, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted December 6, 1982;
    decided January 6, 1983
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    The People of the State of New York, Respondent, v Delorese Wright, Appellant.
    Decided January 11, 1983

      APPEARANCES OF COUNSEL

      Carol A. Zeldin and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Marc Frazier Scholl and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed for reasons stated in the memorandum of the Appellate Division (88 AD2d 879).

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


text:
    The People of the State of New York, Respondent, v Betty Jane Close, Appellant, et al., Defendant.
    Decided January 11, 1983
   Appeal dismissed, by the Court of Appeals sua sponte, upon the ground it does not lie (CPL 450.90).


text:
    Sean O’Connor, Plaintiff, v Serge Elevator Co., Respondent, et al., Defendant, and K. W. Construction Corp., Defendant and Third-Party Plaintiff-Appellant. A & M Wallboard, Inc., Third-Party Defendant-Respondent.
    Submitted December 20, 1982;
    decided January 11, 1983
   Motion for reargument denied, with $20 costs and necessary reproduction disbursements. Motion to amend remittitur on appeal as against A & M Wallboard, Inc., granted. Return of remittitur requested and, when returned, that portion of the remittitur will be amended to read as follows: “On appeal as against A & M Wallboard, Inc.: Order reversed, with costs, and the case remitted to Supreme Court, New York County, for determination of the amount payable to appellant by A & M Wallboard, Inc. under the terms of the indemnity agreement, and for entry of judgment against A & M Wallboard, Inc.” [See 58 NY2d 655.]


text:
    Royal Globe Insurance Company, Respondent, v Chock Full O’Nuts Corporation, Appellant.
    Submitted December 6, 1982;
    decided January 11, 1983
   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 (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    The People of the State of New York, Respondent, v Reggie Smith, True Name Craig Smith, Appellant.
    Submitted December 27, 1982;
    decided January 11, 1983
   Motion to dismiss appeal denied.


text:
    In the Matter of W. Shelby Coates et al., Appellants, v Planning Board of the Incorporated Village of Bayville, Respondent.
    Decided January 13, 1983

      APPEARANCES OF COUNSEL

      Nicholas A. Sordi, Jr., for appellant.

      Howard Thomas Hogan, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reinstating the second decretal paragraph of the order of Special Term annulling condition (e) of respondent’s decision and resolution dated May 20, 1980, as amended by resolution dated July 15, 1980, which required that petitioners widen the adjoining roadway to a width of 20 feet. The order, as so modified, should be affirmed, with costs to petitioners.

Petitioners offered no evidence showing that the engineering, legal or clerical fees imposed on them were either unnecessary or disproportionate to the village’s projected costs. Consequently, petitioners cannot be heard to complain that the planning board, in imposing those fees, acted arbitrarily or capriciously. (Suffolk County Bldrs. Assn. v County of Suffolk, 46 NY2d 613; Jewish Reconstructionist Synagogue of North Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158.) This is especially so since the village code requires that unexpended portions of such fees be refunded to petitioners.

With respect to the requirement that petitioners install suitable drainage facilities, the record indicates that the water table is unusually high in many areas of the village. It was reasonable, therefore, for the board, in the interest of promoting the health and welfare of the community, to require that petitioners provide facilities to insure proper drainage of their property as a condition for approval of their subdivision plat. Petitioners’ contention that the subsoil composition in the area makes drainage facilities unnecessary is not supported by the record.

The requirement that petitioners widen and pave the 250-foot section of the roadway adjoining their property was arbitrary and capricious since that condition bears no relationship to the promotion of public health and safety. Moreover, the requirement that petitioners widen the roadway adjoining their property would result in the destruction of healthy and aesthetically pleasing trees, contrary to the stated objective of the planning board to preserve trees in the village, whenever possible. (Village Code, § 66-16[A].) Four houses are currently located on the roadway. Petitioners’ plans call for the eventual addition of two more. The record is devoid of evidence supporting respondent’s contention that the addition of two families will cause a significant increase in traffic congestion necessitating the widening of the road. Moreover, since petitioners were required to widen only that section of the roadway adjoining their property, the board’s determination, if upheld, would result in the roadway being 20-feet wide in front of petitioners’ property while the remaining 1,250 feet on either side of petitioners’ property would remain at its present 12- to 16-foot width. The resulting configuration of the road, complete with a 250-foot midpoint bulge, would neither promote traffic safety nor relieve traffic congestion. Indeed, the gradual narrowing of the roadway as one passed petitioners’ property might very well increase the risk of traffic accidents.

Since the requirement that petitioners widen the roadway adjoining their property would result in the destruction of healthy and aesthetically pleasing trees, contrary to the stated objective of the planning board, and since there is no evidence in the record showing that the widening of the roadway is necessary to promote the safety or well-being of the community by controlling traffic congestion and enhancing traffic safety, the board’s determination with respect to that requirement was arbitrary and capricious and cannot stand.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified, with costs to petitioners, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    10 Lafayette Square Holdings, Appellants, v City of Buffalo, Respondent.
    Submitted December 6, 1982;
    decided January 13, 1983
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from, which merely affirms the denial of a motion for summary judgment, does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 40, p 161).

Judge Simons taking no part.


text:
    Michael Procco et al., Appellants, v Joseph Kennedy et al., Respondents, et al., Defendants.
    Submitted January 7, 1983;
    decided January 18, 1983

      APPEARANCES OF COUNSEL

      John T. Sylvester for appellants.

      Walter L. Capell for Joseph Kennedy, respondent.

      Jerrold B. Reilly for Kenneth S. Wilber, respondent.

      Alfred L. Renauto for Elio Di Muro, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (88 AD2d 761).

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