text:
    The People of the State of New York, Respondent, v Larry Burton Bennett, Appellant.
    Decided December 17, 1987

      APPEARANCES OF COUNSEL

      Franklin B. Resseguie for appellant.

      Robert J. Simpson, District Attorney (Judith A. Melville of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On April 19, 1985, at 1:00 a.m. State Trooper Donald Faughnan and his partner, Ronald Bell, received a radio communication, directing them to investigate a one-car property damage accident, possibly involving an intoxicated driver, at the intersection of two State highways in the Town of Newark Valley, Tioga County. The officers observed two cars stopped about 100 yards from the intersection — one parked on the shoulder of the highway, the second, defendant’s vehicle, parked perpendicular to the first in the driveway of a closed farm implements store. The officer saw defendant standing outside of his vehicle, conversing through the other vehicle’s passenger side window with the driver of that vehicle. When the officers pulled their clearly marked police car behind the vehicle parked on the shoulder and approached on foot, defendant returned to his vehicle and sat in the driver’s seat, while the other vehicle drove away. Trooper Bell then returned to the police vehicle and pulled it up in front of the driveway.

Trooper Faughnan approached defendant’s vehicle and inspected the outside by flashlight to determine if there were any signs of damage, which could have indicated that defendant was involved in an accident. He then asked defendant if he had been involved in an accident and defendant replied that he had not. At this point, Trooper Faughnan asked defendant for a license and registration. Defendant replied that he had no license and that the car was not registered in his name. Faughnan observed a roll of clear, one-inch-size plastic bags with zip-lock tops in plain view on the dashboard of defendant’s vehicle, and asked defendant what they were for. Defendant replied that he was a coin collector and that the baggies were used for holding the coins.

Trooper Faughnan knew from police schooling and experience that bags of the type found in defendant’s vehicle were often used to store drugs and asked defendant to exit the vehicle. Trooper Faughnan also observed a black pouch on the dashboard of defendant’s vehicle and twice asked defendant what was in the pouch. Defendant reached into the vehicle, pulled out the pouch, opened it and pulled out a small bag containing a white powdery residue. When asked if the bag contained speed or cocaine, defendant answered that it was speed. Defendant was placed under arrest. A subsequent search of defendant’s vest and vehicle revealed more illegal drugs.

In affirming defendant’s conviction, the Appellate Division rejected defendant’s argument that the physical evidence should have been suppressed as the fruit of an illegal search and seizure (NY Const, art I, § 12; US Const 4th, 14th Amends). The court also rejected defendant’s argument that probable cause for his subsequent arrest was obtained through custodial interrogation, prior to the giving of Miranda warnings, and, therefore, all physical evidence obtained as an incident of that arrest had to be suppressed. On the issue of interrogation, the Appellate Division made no express finding as to whether defendant was in custody at the time of the questioning, holding that even if defendant were in custody the questioning was permissible pursuant to People v Huffman (41 NY2d 29). We now affirm, but for different reasons than those used by the Appellate Division on the question of interrogation.

Defendant’s right to be free from unreasonable searches and seizures was not violated. Trooper Faughnan had a justifiable basis for approaching defendant’s stopped vehicle to inquire whether defendant was involved in a reported accident. While making this routine investigatory inquiry, Trooper Faughnan observed the roll of plastic bags in plain view on the dashboard of the vehicle defendant admitted that he had been operating, thereby providing objective facts which support the undisturbed finding that there existed reasonable suspicion to briefly detain and question defendant (see, People v De Bour, 40 NY2d 210, 223). Once defendant made the incriminating replies to Trooper Faughnan’s inquiries, there existed probable cause for defendant’s arrest and justification for the subsequent search of defendant’s person and vehicle incident to an arrest (see, People v Belton, 55 NY2d 49).

The investigatory inquiries made by Trooper Faughnan did not constitute custodial interrogation to which Miranda v Arizona (384 US 436) applies. Although defendant was seized within the meaning of the Fourth Amendment to the United States Constitution and article I, § 12 of the New York State Constitution during the period of this questioning (see, Berkemer v McCarty, 468 US 420, 436-437; Terry v Ohio, 392 US 1, 16-17; People v Cantor, 36 NY2d 106, 110-111), he was not, as a matter of law, in custody at this time for purposes of the need to give Miranda warnings. When a seizure of a person remains at the stop and frisk inquiry level and does not constitute a restraint on his or her freedom of movement of the degree associated with a formal arrest, Miranda warnings need not be given prior to questioning (Berkemer v McCarty, supra, at 439-440; People v Morales, 65 NY2d 997, 998).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Michael Dianda, Appellant.
    Argued November 19, 1987;
    decided December 17, 1987

      APPEARANCES OF COUNSEL

      Robert M. Cohen and E. Stewart Jones for appellant.

      Eugene Keeler, District Attorney (Gloria Herron Arthur of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On May 24, 1984, State Trooper Charles Jones was working as an undercover narcotics investigator, when he met defendant at Arthur’s Court, a tavern in the City of Hudson. The two played pool together and drank beer. At one point, they decided to go up to the bar to buy another drink, where Jones remarked to defendant that the beer was "so small you probably should have some cocaine for the beer”. What transpired thereafter was the subject of conflicting testimony at trial. Jones testified that defendant responded readily to the comment about cocaine and offered not only to obtain some for Jones that evening, but also to provide him with the drug in the future. Defendant testified that Jones "badgered” him during the evening about where one could find cocaine until finally, defendant brought Jones to a house where the drug could be purchased. Defendant raised the defense of agency (see, People v Lam Lek Chong, 45 NY2d 64, 73-75) and requested that the court instruct the jurors that they may draw an adverse inference from the People’s failure to produce a particular police informant who concededly was with Jones in the tavern and accompanied both Jones and defendant to the location where the drugs were purchased. The court refused to give the missing witness charge, and defendant was convicted of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]).

When a party " 'has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable’ ” (People v Gonzalez, 68 NY2d 424, 427, quoting Graves v United States, 150 US 118, 121). Defendant, as the party seeking the charge, may be entitled to a missing witness charge only if he sustains his burden in the first instance of showing that there is an uncalled witness who is knowledgeable about a material issue pending in the case and that such witness can be expected to testify favorably to the opposing party (see, People v Gonzalez, 68 NY2d 424, 427, supra). Here, the sole issue at trial was whether defendant acted as an agent for Jones in procuring the cocaine. Notwithstanding testimony that Trooper Jones had been playing pool with the informant before defendant entered the tavern, and that the informant accompanied the two to the house where the purchase took place, there was no evidence in the record establishing that the informant was actually in the company of defendant and Jones during the critical conversations concerning cocaine such that he would have heard them or observed defendant’s reactions and behavior in regard thereto and thus would have been knowledgeable about who suggested the purchase or whether the defendant acted merely as the instrumentality of Jones in purchasing the drug (see, People v Lam Lek Chong, 45 NY2d 64, 75, supra; People v Feldman, 50 NY2d 500, 504). Absent some foundation connecting the informant to the circumstances relevant to defendant’s agency defense, defendant has failed to sustain his initial burden, and the trial court properly denied the requested charge (see, People v Gonzalez, 68 NY2d 424, 427, supra). We have considered defendant’s remaining contentions and find them to be without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v John Allen Brooks, Appellant.
    Decided December 17, 1987

      APPEARANCES OF COUNSEL

      Ann Cypher and Philip L. Weinstein for appellant.

      Paul T. Gentile, District Attorney (Kevin D. McCloone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the indictment dismissed with leave to the People to resubmit the count of manslaughter in the first degree if they are so advised (see, People v Mayo, 48 NY2d 245).

We recently held in People v Owens (69 NY2d 585, 587-588) that "[w]hen defense counsel objects, it is improper for a trial court, after reciting its instructions orally, to distribute only certain portions of that charge in writing to the jury for use in its deliberations” (see, e.g., CPL 310.30 [jury may be supplied with copy of actual text of a statute only upon consent of the parties]). "[SJubmission of only a portion of a charge— particularly in the absence of any request from the jury for further instruction — creates a risk that the jury will perceive the writing as embodying the more important instructions, inviting greater attention to the principles that are repeated in writing than those simply recited orally” (People v Owens, 69 NY2d 585, 591, supra; see, People v Sanders, 70 NY2d 837; People v Townsend, 67 NY2d 815, 817).

Here, the trial court gave a complete oral charge to the jury regarding the defense of justification — the sole defense raised at trial — to which defendant did object. At the conclusion of its oral instructions but prior to commencement of deliberations, the trial court furnished the jury with a two-page document setting forth an abbreviated version of a portion of its oral charge, including certain principles of the justification defense. To this the defendant did object. Although the trial court did not omit entirely any reference to the defense of justification in the written submission, it failed to include the full explanation embodied in the oral charge, thereby "inviting the jury to place undue emphasis on those matters contained in the written submission, subordinating those portions of the charge — favorable to the defense — contained in the oral charge” (People v Owens, 69 NY2d 585, 591, supra). Indeed, the Trial Judge here appears to have exacerbated the precise danger identified in Owens by denigrating the oral charge as a "detailed explanation” that he was "required to give”, and implicitly urging the jury to work instead with the written version, a "much shorter”, "condensed”, "abbreviated explanation of justification” in "simpler language” that would be available in the jury room. We have stated that such error may not be considered harmless (People v Owens, 69 NY2d 585, 591-592, supra).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and the indictment dismissed, with leave to the People to resubmit the charge of manslaughter in the first degree, if so advised, in a memorandum.


text:
    Robert Cohen et al., Appellants, v Robert J. Reed et al., Respondents.
    Submitted October 26, 1987;
    decided December 17, 1987
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution because further determinations by the Surrogate are required.


text:
    The People of the State of New York ex rel. Thomas Frazier, Appellant, v Francis L. Giles, as Sheriff of the County of Niagara, Respondent.
    Submitted October 19, 1987;
    decided December 17, 1987
   Motion for leave to appeal dismissed upon the ground that no appealable order has been entered at the Appellate Division.


text:
    Lisa Grant et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, and Carolyn Lee et al., on Behalf of Themselves and All Others Similarly Situated, Intervenors-Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Defendants, Edward I. Koch, as Mayor of the City of New York, et al., Respondents.
    Submitted October 26, 1987;
    decided December 17, 1987
   Motion by defendants Koch and Gross to dismiss the appeal granted, with costs and $20 costs of motion, and, on the court’s own motion, appeal as against defendants Cuomo and Perales dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    New York Public Interest Research Group, Inc., et al., Appellants, v Town of Islip et al., Respondents, and Board of Education of Hauppauge Union Free School District, Intervenor-Appellant.
    Submitted December 14, 1987;
    decided December 17, 1987
   Motion for leave to appeal granted. Motion to expedite the appeal granted and case set down for argument on January 12, 1988, appellants’ papers on appeal to be served and filed on or before December 23, 1987 and respondents’ to be served and filed on or before January 4, 1988. Motion for a stay denied.


text:
    Kel Kim Corporation et al., Appellants, v Central Markets, Inc., et al., Respondents.
    Argued November 18, 1987;
    decided December 21, 1987

      APPEARANCES OF COUNSEL

      Paul Pelagalli and Richard C. Miller, Jr., for appellants.

      John P. Miller for respondents.
   OPINION OF THE COURT

Memorandum.

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

In early 1980, plaintiff Kel Kim Corporation leased a vacant supermarket in Clifton Park, New York, from defendants. The lease was for an initial term of 10 years with two 5-year renewal options. The understanding of both parties was that plaintiff would use the property as a roller skating rink open to the general public, although the lease did not limit use of the premises to a roller rink.

The lease required Kel Kim to "procure and maintain in full force and effect a public liability insurance policy or policies in a solvent and responsible company or companies * * * of not less than Five Hundred Thousand Dollars * * * to any single person and in the aggregate of not less than One Million Dollars * * * on account of any single accident”. Kel Kim obtained the required insurance coverage and for six years operated the facility without incident. In November 1985 its insurance carrier gave notice that the policy would expire on January 6, 1986 and would not be renewed due to uncertainty about the financial condition of the reinsurer, which was then under the management of a court-appointed administrator. Kel Kim transmitted this information to defendants and, it asserts, thereafter made every effort to procure the requisite insurance elsewhere but was unable to do so on account of the liability insurance crisis. Plaintiff ultimately succeeded in obtaining a policy in the aggregate amount of $500,000 effective March 1, 1986 and contends that no insurer would write a policy in excess of that amount on any roller skating rink. As of August 1987, plaintiff procured the requisite coverage.

On January 7, 1986, when plaintiff’s initial policy expired and it remained uninsured, defendants sent a notice of default, directing that it cure within 30 days or vacate the premises. Kel Kim and the individual guarantors of the lease then began this declaratory judgment action, urging that they should be excused from compliance with the insurance provision either because performance was impossible or because the inability to procure insurance was within the lease’s force majeure clause. Special Term granted defendants’ motion for summary judgment, nullified the lease, and directed Kel Kim to vacate the premises. A divided Appellate Division affirmed.

Generally, once a party to a contract has made a promise, that party must perform or respond in damages for its failure, even when unforeseen circumstances make performance burdensome; until the late nineteenth century even impossibility of performance ordinarily did not provide a defense (Calamari and Perillo, Contracts § 13-1, at 477 [2d ed 1977]). While such defenses have been recognized in the common law, they have been applied narrowly, due in part to judicial recognition that the purpose of contract law is to allocate the risks that might affect performance and that performance should be excused only in extreme circumstances (see, Wallach, The Excuse Defense in the Law of Contracts: Judicial Frustration of the U.C.C. Attempt to Liberalize the Law of Commercial Impracticability, 55 Notre Dame Law 203, 207 [1979]). Impossibility excuses a party’s performance only when the destruction of the subject matter of the contract or the means of performance makes performance objectively impossible. Moreover, the impossibility must be produced by an unanticipated event that could not have been foreseen or guarded against in the contract (see, 407 E. 61st Garage v Savoy Fifth Ave. Corp., 23 NY2d 275; Ogdensburg Urban Renewal Agency v Moroney, 42 AD2d 639).

Applying these principles, we conclude that plaintiff’s predicament is not within the embrace of the doctrine of impossibility. Kel Kim’s inability to procure and maintain requisite coverage could have been foreseen and guarded against when it specifically undertook that obligation in the lease, and therefore the obligation cannot be excused on this basis.

For much the same underlying reason, contractual force majeure clauses — or clauses excusing nonperformance due to circumstances beyond the control of the parties — under the common law provide a similarly narrow defense. Ordinarily, only if the force majeure clause specifically includes the event that actually prevents a party’s performance will that party be excused. (See, e.g., United Equities Co. v First Natl. City Bank, 41 NY2d 1032; Squillante & Congalton, Force Majeure, 80 Com LJ 4 [1975].) Here, of course, the contractual provision does not specifically include plaintiffs inability to procure and maintain insurance. Nor does this inability fall within the catchall "or other similar causes beyond the control of such party.” The principle of interpretation applicable to such clauses is that the general words are not to be given expansive meaning; they are confined to things of the same kind or nature as the particular matters mentioned (see, 18 Williston, Contracts § 1968, at 209 [3d ed 1978]).

We agree with the conclusion reached by the majority below that the events listed in the force majeure clause here are different in kind and nature from Kel Kim’s inability to procure and maintain public liability insurance. The recited events pertain to a party’s ability to conduct day-to-day commercial operations on the premises. While Kel Kim urges that the same may be said of a failure to procure and maintain insurance, such an event is materially different. The requirement that specified amounts of public liability insurance at all times be maintained goes not to frustrated expectations in day-to-day commercial operations on the premises — such as interruptions in the availability of labor, materials and utility services — but to the bargained-for protection of the landlord’s unrelated economic interests where the tenant chooses to continue operating a public roller skating rink on the premises.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.

       The clause reads: "If either party to this Lease shall be delayed or prevented from the performance of any obligation through no fault of their own by reason of labor disputes, inability to procure materials, failure of utility service, restrictive governmental laws or regulations, riots, insurrection, war, adverse weather, Acts of God, or other similar causes beyond the control of such party, the performance of such obligation shall be excused for the period of the delay.”


text:
    The People of the State of New York, Respondent, v William R. Miller, III, Appellant.
    Argued November 10, 1987;
    decided December 21, 1987

      APPEARANCES OF COUNSEL

      Jonathan J. Silbermann and David S. Greenfield for appellant.

      Robert M. Morgenthau, District Attorney (Phyllis A. Monroe and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing the conviction for offering a false instrument for filing in the first degree and dismissing that count of the indictment and, as so modified, affirmed.

In an 11-count indictment, defendant was charged with one count of grand larceny in the third degree (Penal Law former § 155.30, as amended by L 1986, ch 515) and 10 counts of offering a false instrument for filing in the first degree (Penal Law § 175.35). In substance, the indictment charged that defendant, while working as an assistant train conductor for the Metro-North commuter railroad, stole money from the railroad by submitting fraudulent time sheets on 10 separate occasions indicating he had worked more hours than he actually had. After summations, the trial court, on its own motion, charged petit larceny as a lesser included offense of the grand larceny count. The jury subsequently convicted defendant of petit larceny and one count of offering a false instrument. Defendant now contends that because Metro-North is not "the state or any political subdivision thereof’, he cannot be found guilty of offering a false instrument under Penal Law § 175.35; nor, defendant argues, may he be convicted of petit larceny because the trial court failed to inform counsel prior to summations that it intended to submit petit larceny as a lesser included offense as required by CPL 300.10 (4).

Penal Law § 175.35 makes it a crime for a person, "knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision thereof’, to present that instrument to "a public office or public servant with the knowledge or belief that it will * * * become a part of the records of such public office or public servant”. We have recognized that the purpose of making it a felony offense to defraud the State in this manner, "is to guard against the possibility that officers of the State or its political subdivisions would act upon false or fraudulent 'instruments’ that had been filed with their offices in the belief that such documents were accurate and true” (People v Bel Air Equip. Corp., 39 NY2d 48, 54). Thus, the statute "requires proof of an additional element beyond the false filing; the People must establish that the defendant intended to defraud the State” (People v Bel Air Equip. Corp., 39 NY2d 48, 54, supra).

The People argue that Metro-North, a public benefit subsidiary corporation of the Metropolitan Transportation Authority, which itself is concededly a "state agency” pursuant to Public Authorities Law § 1263 (5), should be considered, for the purpose of the Penal Law, a subdivision of the State. We have repeatedly held that public benefit corporations are not identical to the State or one of its political subdivisions, but only may be treated as such for certain purposes (see, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382; Collins v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 361, 369; Grace & Co. v State Univ. Constr. Fund, 44 NY2d 84, 88; Matter of Dormitory Auth. [Span Elec. Corp.J 18 NY2d 114, 117; Matter of New York Post Corp. v Moses, 10 NY2d 199, 203-204; Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420, 423). To determine whether — for the specific purpose at issue — a public benefit corporation should be treated as would be the State or one of its political subdivisions, we recently have explained that a particularized inquiry into the circumstances of each case is necessary (Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, supra [for purpose of punitive damages LIRE is considered State or political subdivision]; see, Grace & Co. v State Univ. Constr. Fund, 44 NY2d 84, 88, supra [for purpose of statutes authorizing cost adjustments in public construction contracts State University Construction Fund is not considered State or political subdivision]).

Here, we conclude that Metro-North may not be treated as if it were "the state or any political subdivision thereof’ for the purpose of Penal Law § 175.35. Although criminal statutes are no longer to be strictly construed, they are to be construed "according to the fair import of their terms” (Penal Law § 5.00). Only conduct that "falls within the plain, natural meaning of the language of a Penal Law provision may be punished as criminal” (People v Ditta, 52 NY2d 657, 660; see, People v Hedgeman, 70 NY2d 533, 537), and criminal sanctions are not to be imposed for conduct that falls beyond the scope of that provision (People v Ditta, 52 NY2d 657, 660, supra; People v Sansanese, 17 NY2d 302, 306; People v Wood, 8 NY2d 48, 51). Inasmuch as public benefit corporations are not identical to the State, nor are they invariably treated as the State for all purposes, they cannot be said to come within the plain and natural meaning of "state or any political subdivision thereof’ as provided in Penal Law § 175.35. It is significant in this regard that, in accepting the fraudulent time sheets from defendant, Metro-North was acting in its role as private employer and not as agent of the sovereign (see, Long Is. R. R. Co. v Long Is. Light. Co., 103 AD2d 156, 164-165, affd 64 NY2d 1088). Moreover, criminal statutes must afford fair warning that the conduct contemplated is prohibited (see, e.g., People v Nelson, 69 NY2d 302, 307). Absent clear language in the Penal Law concerning the status of public benefit corporations, section 175.35 does not provide adequate notice that the fraudulent filing of a false instrument with Metro-North constitutes the crime of defrauding the State as defined in the statute. The People, therefore, could not have established that defendant intended to defraud the State by showing merely that he intended to defraud his employer, Metro-North.

Defendant’s contention that his petit larceny conviction should be reversed because the trial court failed to inform counsel of the lesser included charge prior to their summations is unavailing. Any error in the court’s failure to timely apprise counsel of the charge as required by CPL 300.10 (4) was, in the circumstances of this case, harmless. Defense counsel’s summation focused exclusively on the charge of offering a false instrument and made no attempt to differentiate between that charge and the grand larceny charge. Moreover, with the exception of the value of the property stolen, there is no difference between the crimes of grand larceny in the third degree as charged and petit larceny — intent to steal property is a required element of both (see, Penal Law former § 155.30, as amended by L 1986, ch 515 [greater than $250]; and Penal Law § 155.25 [no minimum value]). Thus, it cannot be said that defense counsel’s summation would have been affected by knowledge that the petit larceny charge would be submitted to the jury (People v Montgomery, 116 AD2d 669; People v Vicaretti, 54 AD2d 236). We have considered defendant’s remaining contentions and find them to be without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

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


text:
    In the Matter of the Arbitration between Town of Callicoon, Respondent, and Civil Service Employees Association, Inc., Town of Callicoon Unit, Appellant.
    Decided December 21, 1987

      APPEARANCES OF COUNSEL

      Barton W. Bloom for appellant.

      Frederick W. V. Schadt, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

Where a dispute has been arbitrated pursuant to a broad arbitration agreement between the parties, the resulting award may not be vacated unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power (Matter of Silverman [Benmor Coats], 61 NY2d 299, 308; Matter of Board of Educ. v Dover-Wingdale Teachers’ Assn., 61 NY2d 913; Matter of Local Div. 1179 [Green Bus Lines], 50 NY2d 1007; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578).

Here, the arbitration was conducted pursuant to a broad arbitration clause in the parties’ collective bargaining agreement, which empowered the arbitrator to resolve disputes concerning the interpretation and application of the agreement, subject only to the limitation that the arbitrator could not add to or subtract from the agreement (see, Matter of Town of Haverstraw [Rockland County Patrolmen’s Benevolent Assn.] 65 NY2d 677; Matter of Local Div. 1179 [Green Bus Lines], supra; Matter of Sprinzen [Nomberg], 46 NY2d 623).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    In the Matter of Robert F. Miner, Jr., Appellant, v New York State Department of Correctional Services, Respondent.
    Decided December 21, 1987

      APPEARANCES OF COUNSEL

      Robert F. Miner, Jr., appellant pro se.

      Robert Abrams, Attorney-General (Robert J. Schack of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

This is an article 78 proceeding in which petitioner, a life-sentence inmate, seeks to annul a determination of the New York State Department of Correctional Services (DOCS) that petitioner is not legally married for purposes of participation in the Family Reunion Program (7 NYCRR part 220).

The sole issue presented for this court’s review is whether DOCS properly applied Civil Rights Law § 79-a as the basis for concluding that petitioner’s out-of-State proxy marriage entered into during petitioner’s life-term incarceration was invalid.

A marriage entered into by an incarcerated life-sentence inmate is void from inception because the legislative declaration of civil death under Civil Rights Law § 79-a imposes a complete disability to enter into a valid marriage (Ferrin v New York State Dept. of Correctional Servs., 71 NY2d 42). Thus, DOCS’ determination that petitioner’s proxy marriage is invalid was correct and the Appellate Division order refusing to annul the determination should be affirmed, without costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Juan Pauli, Respondent.
    Decided December 21, 1987
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Michael Holtslander, an Infant, by Judith Holtslander, His Parent, et al., Appellants, v C. W. Whalen and Sons et al., Respondents. (Action No. 1.) (And Another Action.)
    Submitted December 14, 1987;
    decided December 21, 1987
   Motion to dismiss appeal denied. Cross motion for leave to appeal, etc., denied as unnecessary. (See, Holtslander v Whalen & Sons, 69 NY2d 1016.)


text:
    In the Matter of Harold W. Schwartz, Appellant, v Mario Cuomo, as Governor of the State of New York, et al., Respondents.
    Submitted November 2, 1987;
    decided December 21, 1987
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not the type of nonfinal order that comes within the meaning of CPLR 5602 (a) (2). Motion for reconsideration of the September 8, 1987 dismissal, etc., denied. [See, 70 NY2d 747.]


text:
    In the Matter of Allstate Insurance Company, Respondent, v Wainright M. Carlough, as Father and Natural Guardian of Arleen Carlough, Deceased, Respondent, and Meritplan Insurance Company, Appellant.
    Decided December 23, 1987

      APPEARANCES OF COUNSEL

      E. Richard Rimmels, Jr., for appellant.

      Benjamin Purvin and Charles F. Brady for Allstate Insurance Company, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (132 AD2d 554).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    Anna M. O’Connor, as Executrix of David W. O’Connor, Deceased, Respondent, v State of New York, Appellant.
    Argued November 17, 1987;
    decided December 23, 1987

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      Michael J. Cunningham and John T. DeGraff, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

Claimant’s decedent was crossing a street on the State Office Building Campus in Albany in a marked pedestrian crosswalk when he was struck and killed by a bicyclist involved in a time trial. Claimant sued the cyclist and others involved in the time trial in Supreme Court, where damages were assessed at $980,000 and comparative negligence was found to be 60%. The claimant then commenced this action against the State in the Court of Claims, where the court found that the decedent and the State were each 50% at fault and assessed damages at $680,870. The Appellate Division affirmed the Court of Claims order, from which the State now appeals.

We agree with the Appellate Division that the State, like other landowners, owed a duty of care to the plaintiff to maintain its property, held open to the public, in a reasonably safe condition and that it breached that duty (Benjamin v City of New York, 64 NY2d 44; Kush v City of Buffalo, 59 NY2d 26; Rhabb v New York City Hous. Auth., 41 NY2d 200; Scurti v City of New York, 40 NY2d 433; Nicholson v Board of Educ., 36 NY2d 798; Cohen v City of New York, 204 NY 424). As the lower court found, the bicycle time trials knowingly permitted several times weekly on the roadways within this vast office complex owned by the State constituted an unusual hazard or dangerous activity. Yet the State took no measures to protect pedestrians, even though the potential dangers were foreseeable (see, Cohen v City of New York, supra, at 427).

The State’s position that collateral estoppel is a bar to relitigating the issue of decedent’s comparative negligence in the Court of Claims is similarly unpersuasive. Although the decedent’s comparative negligence was at issue both in the Supreme Court and in the Court of Claims actions, there has been no showing by the State that the Supreme Court addressed relative culpability as between the decedent and the State, which was an issue squarely before the Court of Claims (see, O’Connor v G & R Packing Co., 53 NY2d 278, 280; Schwartz v Public Adm’r, 24 NY2d 65, 71).

Further, the State was not and could not have been a party to the first action in Supreme Court (Court of Claims Act §§ 8, 9; see, Morell v Balasubramanian, 70 NY2d 297). Collateral estoppel is, therefore, inapplicable (1) because the issues of decedent’s comparative negligence with respect to the defendants in the Supreme Court action and with respect to the later proceeding against the State in the Court of Claims are discrete, not identical; and (2) because, in any event, claimant never had a full and fair opportunity to litigate decedent’s comparative negligence in relationship to the State (see, Schwartz v Public Adm’r, supra).

We have examined the State’s other arguments and find them to be without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


text:
    Ellen M. McFarland, Appellant, v Alan R. McFarland, Respondent.
    Argued November 19, 1987;
    decided December 23, 1987

      APPEARANCES OF COUNSEL

      Robert Stephan Cohen, Deborah E. Lans and Barbara H. Press for appellant.

      Leon D. Lazer and Jonathan D. Kantor for respondent.
   OPINION OF THE COURT

Memorandum.

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

Alleging fraud and duress, plaintiff sought to invalidate the separation agreement between herself and her former husband, which had been incorporated but not merged in a bilateral Dominican Republic judgment of divorce. Specifically, she alleged that her former husband had understated the value of his partnership interest in a large investment firm, had failed to disclose an impending restructuring of the firm that would have increased the value of his interest and had threatened a custody fight when plaintiff failed to accede to his economic demands. Plaintiff did not, however, challenge the jurisdiction of the Dominican Republic court or dispute the validity of the divorce judgment itself. Finding no basis for departing from the general rule governing New York’s willingness to accord comity to foreign judgments, the trial court held that the prior Dominican Republic divorce judgment precluded further litigation concerning the validity of the incorporated separation agreement (see, Greschler v Greschler, 51 NY2d 368). Accordingly, the court dismissed the complaint in a judgment which the Appellate Division affirmed.

Even assuming that the allegations of fraud and duress in plaintiff’s complaint are technically sufficient to support a claim of rescission, those allegations do not rise to the level of gross inequity that might implicate New York’s public policy. Thus, there is no basis here for a contention that recognition of the Dominican Republic divorce judgment — or of the incorporated separation agreement — would "do violence to some strong public policy of this State” (Greschler v Greschler, supra, at 376). We note that plaintiff was represented by independent counsel of her own choosing at the time she signed the separation agreement and that the agreement, while favorable to her former husband, is neither facially irregular nor unconscionable as that term has been defined in the case law (see, Levine v Levine, 56 NY2d 42, 48; Christian v Christian, 42 NY2d 63, 71-73). Under these circumstances, there was no error in the dismissal of plaintiff’s complaint.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur; Chief Judge Wachtler taking no part.

Order affirmed, with costs, in a memorandum.


text:
    Gregg Macey et al., Respondents, v Charles Truman, Appellant.
    Argued November 19, 1987;
    decided December 23, 1987

      APPEARANCES OF COUNSEL

      Donald G. Sweeney and Carl A. Kieper for appellant.

      Kevin F. McDonough for respondents.
   OPINION OF THE COURT

Memorandum.

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

Defendant permitted plaintiff, Greg Macey, and two others entry onto his land to cut certain trees which had been marked for removal for plaintiff’s use in building a log cabin. The accident out of which this action arose occurred when a marked tree felled by Macey and his companions became entangled in a standing tree that was unmarked. After unsuccessful efforts to dislodge the marked tree, they decided to take down the unmarked one on which it was resting. When they cut the tree it struck plaintiff as it fell and caused serious injuries. Defendant was not present at the time; his sole involvement was in designating the particular area of his land for tree-cutting and, together with plaintiff and a forester from the Department of Environmental Conservation, in marking the trees for cutting by plaintiff.

A landowner owes a duty to another on his land to keep it in a reasonably safe condition, considering all of the circumstances including the purpose of the person’s presence and the likelihood of injury (see, Basso v Miller, 40 NY2d 233). Here, the injury resulted not from any unsafe condition defendant left uncorrected on his land, but as a direct result of the course plaintiff and his companions decided to pursue in attempting to dislodge the marked tree. Under these circumstances, the law imposed no duty on defendant as landowner to protect plaintiff from the unfortunate consequences of his own actions. Nor, in the absence of some showing that defendant’s conduct in designating an area of his land for cutting and in marking the trees was causally related to the accident, can he be held liable to plaintiff on the theory that his conduct was negligent. We agree with the dissenters at the Appellate Division (126 AD2d 864, 866) that Schoonmaker v Ridge Runners Club 99 (119 AD2d 858, appeal dismissed 68 NY2d 807) is distinguishable. In Schoonmaker the individually-named defendants, unlike defendant here, participated with plaintiff in the tree-cutting activities which led to the accident. Hence, plaintiff in that case could show a causal nexus between his injuries and defendants’ actions.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, with costs, defendant’s motion for summary judgment granted and complaint dismissed in a memorandum. Certified question answered in the affirmative.


text:
    In the Matter of Donald Pius et al., Respondents, v Benjamin J. Bletsch, as Director of Engineering, Building and Housing of the Town of Huntington, et al., Appellants.
    Argued November 16, 1987;
    decided December 23, 1987

      APPEARANCES OF COUNSEL

      Herbert A. Smith, Jr., Town Attorney (Patrick A. Sweeney of counsel), for appellants.

      Charles T. Matthews for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Contract-purchaser Pius applied to the Town of Huntington Director of Engineering, Building and Housing (Director) for a building permit to construct an office building on property in a commercial zone. Subsequent to a preliminary assessment by the Town’s Department of Environmental Control, a positive SEQRA (State Environmental Quality Review Act) declaration indicated that the proposed building may have a significant adverse environmental impact. Thereupon, the Director refused to issue the building permit and instructed Pius instead to submit a draft environmental impact statement (DEIS) pursuant to ECL 8-0109 (4).

Pius started a CPLR article 78 proceeding seeking to annul the Director’s determination and to mandate that the Director issue a building permit without the precondition of a DEIS. Supreme Court, Suffolk County, granted the petition, holding that the issuance of a building permit is purely ministerial involving no discretion and that no DEIS may be required. Relying upon Matter of Filmways Communications v Douglas (106 AD2d 185, affd 65 NY2d 878), the Appellate Division agreed. We reverse and dismiss the proceeding.

SEQRA (ECL art 8) and its implementing regulations (6 NYCRR part 617) require the preparation of an "environmental impact statement on any action * * * which may have a significant effect on the environment” (ECL 8-0109 [2] [emphasis supplied]). SEQRA defines "action” to include the issuance of a permit, but expressly exempts from its application "official acts of a ministerial nature, involving no exercise of discretion” (ECL 8-0105 [5] [ii]; 6 NYCRR 617.2 [q], [x]).

In Filmways, we affirmed the Appellate Division holding expressly on its writing that the building inspector’s function there was ministerial and excluded from SEQRA review because "[t]here is no provision in the building code that gives the building inspector a latitude of choice” (Matter of Film-ways Communications v Douglas, 106 AD2d 185, 186, affd 65 NY2d 878, supra [emphasis supplied]; see also, Citizens for Preservation of Windsor Terrace v Smith, 122 AD2d 827 [issuance of concededly "as of right” building permit is a ministerial function]). The adopted opinion acknowledged, however, that if a building inspector was empowered to vary or request modifications in the qualifying criteria, that function would not be deemed ministerial (Matter of Filmways Communications v Douglas, supra, at 186, n 2, citing SEQRA Handbook, at B-ll [1982]).

The Appellate Division in the instant case treats Filmways (supra) as establishing a broad general proposition that issuance of a building permit is always ministerial. It does not. We conclude that, in light of the Director’s specifically delegated site plan approval powers coupled with the authority to make certain case-by-case judgments on site plan design and construction materials issues, the Town of Huntington’s subdivision regulations and site improvement specifications vests discretion of a kind which qualifies as an unexempted "action” in connection with the issuance of a building permit. Inasmuch as the issuance of a permit under this regulation is an action, the Director, as head of the "lead agency” under SEQRA, was entitled to require a DEIS as a precondition to the issuance of a permit (see, Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 415; ECL 8-0109 [4]; 6 NYCRR 617.8).

Other issues raised do not have sufficient merit to warrant discussion.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    Virginia L. Gunnarson, Respondent, v State of New York, Appellant.
    (Claim No. 62631.)
    Argued November 18, 1987;
    decided December 23, 1987
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Michael Buskus, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      Martin Diennor and Abraham Fuchsberg for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this personal injury action for damages by a claimant injured while she was a patient at the Pilgrim State Psychiatric Center, a bifurcated trial was held in the Court of Claims resulting in an interlocutory judgment of liability against the State of New York. The State appealed, automatically triggering a stay in its favor pursuant to CPLR 5519 (a) (1). The liability judgment was affirmed and, subsequently, damages were fixed in favor of plaintiff in the amount of $750,000.

The sole issue on this appeal by the State is whether interest on the judgment should be calculated from the date liability was determined, as fixed below, or from the final judgment date which included the damages component, as urged by the State. We agree with the Appellate Division and the Court of Claims.

In Trimboli v Scarpaci Funeral Home (37 AD2d 386 [Hopkins, J.], affd on opn below 30 NY2d 687), we approved the rule that interest should be calculated from the date of the liability adjudication in bifurcated trials. Thus, plaintiffs were to be compensated with interest for the delay in payment of the principal award certainly due them; only the amount remained uncertain. The rule encourages defendants to be prudent and realistic in evaluating whether to take their concededly lawful appeals from interlocutory judgments of liability and, if so, whether to seek or allow postponement of the trials on the damages issue pending such appeals.

The State appeals, urging us to overrule Trimboli as wrongly decided. To support its assertion, the State argues that the Trimboli rule affords plaintiffs a double recovery since fact finders in any event compensate plaintiffs for delays when figuring damage awards in the first instance. The State also contends that interest can be computed only on liquidated damages, and since damages are not liquidated at the time a liability verdict is rendered, a plaintiff should not recover interest from the retroactive date.

These arguments are unpersuasive and they do not satisfy the threshold burden of demonstrating that Trimboli was either wrongly decided or that it overlooked the present arguments, or that some thing has occurred in the short interval which would warrant overruling our precedent. To the extent that Brock v State of New York (77 AD2d 670) is inconsistent, it is disapproved.

The notion that fact finders routinely increase awards based on the kind of delay present in these bifurcated trial/interlocutory appeal situations is conjectural. As to the "liquidated damage” argument, CPLR 5002 itself provides that interest shall accrue from the date "the verdict was rendered * * * to the date of entry of final judgment”. Thus, there is no absolute requirement that the amount of damages be fixed for the interest to start to accrue. Indeed, in this respect, the State seeks an unacceptable double advantage. On the one hand, it enjoys a unique benefit not afforded to private litigants— automatic stay of proceedings pursuant to CPLR 5519 (a) (1)— and, on the other, it covets the additional dispensation, again not accorded private litigants (Trimboli v Scarpaci Funeral Home, 37 AD2d 386 [Hopkins, J.], affd on opn below 30 NY2d 687, supra), of avoiding payment of some legitimate cost for extending the litigation finale, albeit by an interlocutory appeal which the statute authorizes (CPLR 5701 [a] [1]).

Rather than accept the plea to overrule Trimboli, we reaffirm its prudent rationale and holding. There should be no different rule with respect to prejudgment interest just because the defendant happens to be the State and the damage assessment is stayed automatically in its favor (CPLR 5519 [a] [1]). Quite the contrary, the Trimboli rule should be uniformly applied.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Ronald P. Fields, Appellant, v Brenda S. Soloff, as Acting Justice of the Supreme Court, New York County, Respondent.
    Decided December 23, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, for mootness.


text:
    In the Matter of William F. Morley, Jr., et al., Appellants, v Town of Oswegatchie et al., Respondents.
    Decided December 23, 1987
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 M [2]).


text:
    The People of the State of New York, Respondent, v Frederick A. Springer, Appellant.
    Submitted November 30, 1987;
    decided December 23, 1987
   Motion to limit appeal denied.


text:
    National Organization for Women et al., Appellants, v Metropolitan Life Insurance Company, Respondent.
    Submitted November 9, 1987;
    decided January 7, 1988
   Motion for leave to appeal dismissed as untimely. Service was not completed within the meaning of CPLR 2103 (b) (2) by the mailing in Washington, D.C. The statute provides for mailing "within the state.”


text:
    State of New York, Respondent, v Danny’s Franchise Systems, Inc., et al., Appellants.
    Submitted November 16, 1987;
    decided January 7, 1988
   Motion by defendant Matlin 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 defendants Danny’s Franchise Systems, Inc., et al., for leave to appeal dismissed as untimely and upon the further ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Lester Crandall et al., Appellants, v Bernard, Overton & Russell, Respondent.
    Submitted November 23, 1987;
    decided January 12, 1988
   Motion insofar as it seeks leave to appeal from so much of the order of the Appellate Division as (1) affirmed the denial of plaintiffs’ motion to amend the complaint or to replead, and (2) affirmed the denial of plaintiffs’ cross motion for summary judgment dismissed upon the ground that those portions of the order sought to be appealed from do not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Richard Vandenburg, Appellant, v Timothy Brosnan et al., Defendants, and Southland Corp., Doing Business as Seven-Eleven, Respondent.
    Argued January 8, 1988;
    decided January 14, 1988

      APPEARANCES OF COUNSEL

      Irving N. Selkin and Morris Honig for appellant.

      David S. Heller for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (129 AD2d 793). We note in addition, with respect to plaintiffs claim of common-law negligence, that the principles applied by the Appellate Division were recently reaffirmed by this court (see, D’Amico v Christie, 71 NY2d 76).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, Respondent, v Thomas Ruz, Appellant.
    Argued January 5, 1988;
    decided January 14, 1988

      APPEARANCES OF COUNSEL

      Elizabeth J. Vila, Philip L. Weinstein and Helen A. Marino for appellant.

      Paul T. Gentile, District Attorney (David K. Bertan and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant acknowledges that the sentencing court had statutory power to impose the surcharge mandated by Penal Law § 60.35 (see by contrast, People v David, 65 NY2d 809, 810; People v Fuller, 57 NY2d 152, 156). However, he now maintains for the first time that the surcharge was unconstitutional as applied to him, in that it violated the ex post facto prohibition contained in the Federal Constitution (US Const, art I, § 10 [cl 1]). By not bringing this issue to the attention of the court at the time of sentence, defendant failed to preserve it for our review (People v Ingram, 67 NY2d 897; People v Lemon, 62 NY2d 745).

Defendant’s additional constitutional challenges to the statute are similarly unpreserved (see also, People v Barnes, 62 NY2d 702).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Juan Castro, Appellant.
    Argued January 7, 1988;
    decided January 14, 1988

      APPEARANCES OF COUNSEL

      Henry Winestine and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Beth J. Thomas and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

"Whether a police officer has the requisite reasonable suspicion to believe a defendant had been, is then or is about to be engaged in conduct in violation of the law is generally a mixed question of law and fact which can rarely be resolved as a matter of law” (People v Chilton, 69 NY2d 928, 929; People v Harrison, 57 NY2d 470, 477-478). Inasmuch as there is evidence in the record to support the hearing court’s finding, undisturbed by the Appellate Division, that there was a sufficient predicate for the officer’s interference with defendant as he attempted to walk away from the taxi, our review process is at an end (People v Jones, 69 NY2d 853, 855).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Joshua Liner, Appellant.
    Submitted January 4, 1988;
    decided January 14, 1988
   On the court’s own motion, defendant’s appeal dismissed upon the ground that a Judge of this court could not entertain defense counsel’s CPL 460.20 application after an application had been made by defendant pro se to a Justice of the Appellate Division (People v Nelson, 55 NY2d 743; People v McCarthy, 250 NY 358). Motion for assignment of counsel dismissed as academic.


text:
    6-8 West 107 Association, Respondent, v Vernita Nuey, Appellant.
    Submitted December 7, 1987;
    decided January 14, 1988
   Motion dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [6], [7]; CPLR 5602 [a] [1] [i]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Andrew S. Miller, Appellant, v Martin E. Schwartz, as Senior Administrative Law Judge, et al., Respondents.
    Submitted January 11, 1988;
    decided January 14, 1988
   Motion for waiver of certain requirements of the Rules of Practice of the Court of Appeals (22 NYCRR 500.14) denied.


text:
    The People of the State of New York, Respondent, v David Williams, Appellant.
    Argued January 12, 1988;
    decided January 19, 1988
    APPEARANCES OF COUNSEL

      Fred S. Hodara and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

At trial the prosecution questioned two of defendant’s witnesses regarding why they had not informed the authorities of the information they possessed potentially exculpating the defendant. Defendant’s two central arguments on appeal are that the trial court erred in (1) allowing the prosecution’s questions without the proper foundation under People v Dawson (50 NY2d 311), and (2) failing first to hold a bench conference to assess the propriety of such questioning. No objection was made to the trial court on these grounds, however, and thus the arguments now pressed were not preserved for our review.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Alonzo Fleming, Appellant.
    Argued January 8, 1988;
    decided January 19, 1988
    APPEARANCES OF COUNSEL

      Bertrand J. Kahn and Philip L. Weinstein for appellant.

      Paul T. Gentile, District Attorney (Stanley R. Kaplan and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s sole claim of error — that the trial court violated his right of confrontation by permitting the arresting officer to testify that he arrested defendant after a conversation with an individual who did not testify — has not been preserved for our review. Although defense counsel sought a prospective ruling on this point, the court declined to make an anticipatory ruling. When the arresting officer later testified at trial, counsel entered objections as "objection” or "leading”, but failed to advise the trial court that the present claimed error was the basis for any of his objections. The word "objection” alone was insufficient to preserve the issue for our review (see, People v Love, 57 NY2d 1023, 1025; People v West, 56 NY2d 662, 663).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    VSL Corporation, Appellant, v Dunes Hotels and Casinos, Inc., Respondent.
    Decided January 19, 1988

      APPEARANCES OF COUNSEL

      Andrew L. Deutsch for appellant.

      Howard M. Sommers for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the complaint reinstated and the case remitted to the Appellate Division for consideration of issues raised but not passed upon on the appeal to that court.

The Appellate Division acted outside of its authority in sua sponte dismissing the complaint on forum non conveniens grounds. Under CPLR 327 (a) a court may stay or dismiss an action in whole or in part on forum non conveniens grounds only upon the motion of a party; a court does not have the authority to invoke the doctrine on its own motion.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    In the Matter of Paul H. Kirwin, an Attorney and Counselor-at-Law, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted December 7, 1987;
    decided January 19, 1988
   Motion for leave to appeal from the Appellate Division order denying a rehearing, reargument, a stay and leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion, insofar as it may be regarded as seeking leave to appeal from the order of the Appellate Division confirming the report of the Special Referee and disbarring appellant denied.

Judge Titone taking no part.


text:
    In the Matter of Meadow Brook Equities, Ltd., Appellant, v New York State Department of Environmental Conservation et al., Respondents.
    Submitted December 14, 1987;
    decided January 19, 1988
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; 2103 [b] [2]).

Judge Titone taking no part.


text:
    In the Matter of the Guardianship of Duane R.
    Submitted December 14, 1987;
    decided January 19, 1988
   Motion, insofar as it seeks leave to appeal from the Appellate Division order entered November 10, 1987 affirming , the order of Erie County Surrogate’s Court entered October 10, 1986, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Titone taking no part.


text:
    In the Matter of the Estate of Elian S. Warren, Deceased. Tessie Warren, Appellant; Helen Spittel et al., Respondents.
    Submitted November 16, 1987;
    decided January 19, 1988
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as (1) dismissed petitioner’s appeal from the order of Surrogate’s Court denying her motion to vacate the decision of January 29, 1986, and (2) affirmed the August 27, 1986 order denying petitioner’s motion (i) for preliminary injunctive relief, (ii) to reargue respondents’ motion for summary judgment and (iii) to vacate the June 18, 1986 order, dismissed upon the ground that those portions of the order sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Titone taking no part.


text:
    Michael Holtslander, an Infant, by Judith Holtslander, His Parent, et al., Appellants, v C. W. Whalen and Sons et al., Respondents. Nelson Passino, an Infant, by Judith M. Jablonski, His Parent, et al., Appellants, v C. W. Whalen and Sons et al., Respondents.
    Argued January 8, 1988;
    decided February 4, 1988

      APPEARANCES OF COUNSEL

      Robert M. Cohen and Morris D. Strauss for appellants.

      Christine Kirwin Krackeler and J. Vincent Smith for C. W. Whalen and Sons, respondent.

      Elizabeth M. Dumas for Church of the Immaculate Conception, respondent.
   OPINION OF THE COURT

Order modified, with costs to plaintiffs against defendant Church, by granting a new trial as against the defendant Church and, as so modified, affirmed, with costs to defendant C. W. Whalen and Sons against plaintiffs, for reasons stated in the concurring in part and dissenting in part memorandum by Justice Howard A. Levine at the Appellate Division (126 AD2d 917, 919-920).

Concur: Judges Simons, Kaye, Alexander and Hancock, Jr. Chief Judge Wachtler and Judges Titone and Bellacosa dissent in part and vote to affirm for the reasons stated in the memorandum of the Appellate Division (126 AD2d 917).


text:
    The People of the State of New York, Appellant, v Vincent Johnson, True Name Vincent Simpson, Respondent.
    Decided February 4, 1988

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Ivan Vogel of counsel), for appellant.

      Arthur H. Hopkirk and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum of the Appellate Division (133 AD2d 175).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa. Taking no part: Judge Titone.


text:
    Gilbert Frank Corporation, Respondent, v Federal Insurance Company, Appellant.
    Argued January 5, 1988;
    decided February 4, 1988

      APPEARANCES OF COUNSEL

      Kenneth R. Feit and Solomon M. Cheser for appellant.

      Dennis T. D’Antonio and Frank A. Weg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment granted, and the question certified answered in the negative.

This court has repeatedly held that in order to obtain summary judgment, movant must establish its defense or cause of action sufficiently to warrant a court’s directing judgment in its favor as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests (see, Zuckerman v City of New York, 49 NY2d 557, 562, supra). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” for this purpose (Zuckerman v City of New York, 49 NY2d 557, 562, supra).

Here, defendant insurer, by citing the insurance policy’s 12-month limitations period, satisfied its burden of producing evidence which, if uncontroverted, is sufficient to warrant judgment in its favor as a matter of law. Plaintiff, on the other hand, has not met its burden of demonstrating the existence of any material triable issue of fact. The evidence in the record shows that subsequent to the expiration of the contractual limitations period defendant continued to investigate plaintiffs claim. There were four meetings between plaintiffs chief financial officer and one of defendant’s representatives, and a number of telephone contacts between the parties. Eventually, plaintiff was offered $8,000 "without prejudice” in full satisfaction of its stated claim of over $100,000 — an offer which plaintiff rejected. No other evidence was presented in support of plaintiffs claim of waiver and/or estoppel.

Evidence of communications or settlement negotiations between an insured and its insurer either before or after expiration of a limitations period contained in a policy is not, without more, sufficient to prove waiver or estoppel (see, Blitman Constr. Corp. v Insurance Co., 66 NY2d 820, 823; Kaufman v Republic Ins. Co., 35 NY2d 867, 868; Proc v Home Ins. Co., 17 NY2d 239, 245; Van Hoesen v Pennsylvania Millers Mut. Ins. Co., 86 AD2d 733; Allen v Dutchess County Mut. Ins. Co., 95 App Div 86, 89). Waiver is an intentional relinquishment of a known right and should not be lightly presumed (see, S & E Motor Hire Corp. v New York Indem. Co., 255 NY 69, 72; 5 Williston, Contracts §§ 696, 697, at 338-340 [3d ed 1961]). Plaintiff offers no evidence from which a clear manifestation of intent by defendant to relinquish the protection of the contractual limitations period could be reasonably inferred (see, Kiernan v Dutchess County Mut. Ins. Co., 150 NY 190, 195). Nor do the facts show that defendant, by its conduct, otherwise lulled plaintiff into sleeping on its rights under the insurance contract (see, Kiernan v Dutchess County Mut. Ins. Co., 150 NY 190, 195, supra). Indeed, since the conduct complained of occurred subsequent to expiration of the limitations period, plaintiff could not have relied on that conduct in failing to timely commence its action.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Michael Tuohy Murphy, Appellant.
    Argued January 12, 1988;
    decided February 4, 1988

      APPEARANCES OF COUNSEL

      J. Byron O’Connell for appellant.

      Andrew Ryan, Jr., District Attorney (Valerie Friedlander of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the opinion by Justice John T. Casey at the Appellate Division (128 AD2d 177).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa. Taking no part: Judge Titone.


text:
    Rosabell Wittman, as Limited Administratrix of the Estate of Sharon A. Wittman, Deceased, Respondent, v Stephen D. Gilson, Appellant.
    Argued January 6, 1988;
    decided February 4, 1988

      APPEARANCES OF COUNSEL

      Michael A. Reddy for appellant.

      Richard C. Miller for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs daughter died from injuries suffered in a head-on collision between the car she was driving and a vehicle driven by defendant while intoxicated. Defendant was charged with criminally negligent homicide and pleaded guilty. Shortly thereafter, plaintiff, administratrix of her daughter’s estate, commenced this action seeking compensatory damages for wrongful death and for conscious pain and suffering of her decedent. Punitive damages were also sought. The trial court directed a verdict as to civil liability and the jury returned a verdict in the amount of $2,853 for wrongful death, $4,500 for conscious pain and suffering, and $45,000 in punitive damages.

On appeal, defendant argues that punitive damages following a criminal conviction arising out of the same drunk driving incident should not be imposed as a matter of policy as implicated by the constitutional prohibition against double jeopardy. The quasi-criminal punitive aspect of exemplary damages has presented a concern that safeguards against successive or multiple prosecutions, available to a criminal defendant, should also be extended to defendants civilly exposed to punitive damages.

We are not persuaded to adopt that view in this case because, while punitive damages and criminal sanctions share a common purpose of punishing misconduct, there are also significant distinctions between the two. Unlike the sanction imposed on behalf of all the people of the State in a criminal case, punitive damages in a civil case context afford the injured party a personal monetary recovery over and above compensatory loss. The procedures and standards of proof are also, of course, very different. Additionally, a civil verdict directing payment of punitive damages does not carry the same heavy societal stigma stamped by a criminal conviction no matter what sentence is imposed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Anonymous (Billie Boggs), an Alleged Mentally Ill Patient, Appellant, v New York City Health and Hospitals Corporation et al., Respondents.
    Argued January 8, 1988;
    decided February 4, 1988

      APPEARANCES OF COUNSEL

      Robert Levy, Norman Siegel and Eric Friedberg for appellant.

      Peter L. Zimroth, Corporation Counsel (Paul T. Rephen, Leonard Koerner and June A. Witterschein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed as moot.

In this proceeding under Mental Hygiene Law § 9.31, petitioner challenges her retention after involuntary commitment to Bellevue Psychiatric Hospital pursuant to Mental Hygiene Law § 9.27. The only legal issue presented is whether the City established by clear and convincing evidence that petitioner Joyce Brown has a mental illness and is a danger to herself or others (Mental Hygiene Law § 9.39 [a]).

After hearing the evidence, the Trial Justice held the evidence was not clear and convincing on Joyce Brown’s mental condition and, even assuming she were mentally ill, she was not shown to be a danger within the meaning of the governing statute (Mental Hygiene Law § 9.39 [a]). The Appellate Division, with two Justices dissenting, reversed and made its own findings of fact, concluding that the trial court’s decision was against the weight of the credible evidence. In its view, there was sufficient evidence satisfying the clear and convincing standard that Joyce Brown was mentally ill and that her condition had deteriorated to the point where she was in immediate danger of serious harm. Petitioner appealed as of right to this court, based upon two dissenting votes at the Appellate Division; in the event this court determined the dissents were not on an issue of law (CPLR 5601 [a]), petitioner at oral argument also made a motion for leave to appeal. The only issue presented for this court’s determination is whether the findings of the Trial Justice or the Appellate Division more nearly comport with the weight of the evidence (NY Const, art VI, § 3 [a]; CPLR 5501 [b]).

After oral argument and while the matter was still pending here, the New York City Corporation Counsel confirmed, by motion, public reports that Joyce Brown had been released. We conclude that the appeal has been rendered moot.

The "power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713). Where, as here, a change in circumstances resolves the matter and no controversy remains, the appeal should be dismissed as moot. While we have recognized an exception to the mootness doctrine under certain circumstances, this is not such a case. Petitioner’s challenge to her involuntary commitment is not the kind of litigation inherently and typically evading appellate review, and the narrow jurisdictional context of this case presents no novel, constitutional or substantial legal question for this court’s review (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715,. supra; see also, Matter of David C., 69 NY2d 796).

Appeal dismissed, without costs, in a memorandum.


author: Hancock, Jr., J.

text:
    In the Matter of the State Division of Human Rights, on Complaint of Marie Johnson, Appellant, v Oneida County Sheriff’s Department, Respondent.
    Submitted January 6, 1988;
    decided February 4, 1988

      APPEARANCES OF COUNSEL

      Margarita Rosa and Albert J. Kostelny, Jr., for appellant.

      William S. Calli, County Attorney (John S. Balzano, of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (119 AD2d 1006).

Concur: Chief Judge Wachtler and Judges Simons, Titone and Bellacosa. Judge Hancock, Jr., dissents and votes to reverse in an opinion in which Judges Kaye and Alexander concur.

Hancock, Jr., J.

(dissenting). The sole question is whether the determination of the New York State Division of Human Rights — that complainant was the victim of unlawful sex discrimination — is supported by sufficient evidence in the record. Inasmuch as complainant was denied a promotion solely because she is a woman and it was entirely reasonable on this record for the Division to conclude, after conducting a full evidentiary hearing, that the Oneida County Sheriffs Department failed to prove that sex was a bona fide occupational qualification (BFOQ) for the position, the governing statute and established case law dictate that the Division’s determination be confirmed. Therefore, I dissent.

I

The applicable law is clear. Section 296 of the Human Rights Law (Executive Law art 15) makes it "an unlawful discriminatory practice [f]or an employer * * * because of the * * * sex * * * of any individual * * * to discriminate against such individual in compensation or in terms, conditions or privileges of employment”. Provisions of the Human Rights Law "shall be construed liberally for the accomplishment of [its] purposes” (§ 300) and a finding of unlawful discrimination by the Division of Human Rights "shall be conclusive if supported by sufficient evidence on the record considered as a whole” (§ 298). Accordingly, no reasonable determination by the Division that an employer has discriminated in violation of section 296 of the Human Rights Law may be disturbed on judicial review, even if the court might have weighed the evidence differently and reached a contrary result (Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72, 79; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180; City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 424, 428).

Additionally, whenever a prima facie showing of sex discrimination has been made, the burden shifts to the employer to prove the existence of an "independent legitimate reason” for the disparate treatment which is neither a pretext for nor an outgrowth of impermissible discrimination (Matter of Maloff v City Commn. on Human Rights [Anilyan], 46 NY2d 908, 910; Matter of Pace Coll, v Commission on Human Rights, 38 NY2d 28, 39-40; see also, McDonnell Douglas Corp. v Green, 411 US 792, 802-803). An employer may meet this burden by proving that a particular sex is a bona fide occupational qualification (State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 367-368, affd 29 NY2d 921; Executive Law § 296 [1] [d]; see also, Civil Rights Act of 1964, tit VII, § 703 [e] [42 USC § 2000e-2 (e)]). But this exception to the general prohibition of sex discrimination in employment is "extremely narrow” — the sex-based qualification must be reasonably necessary and not susceptible of reasonable alternatives (Dothard v Rawlinson, 433 US 321, 329, 333, 334; McDonnell Douglas Corp. v Green, supra, at 801; Griggs v Duke Power Co., 401 US 424, 431-432; see also, Carey v New York State Human Rights Appeal Bd., 61 AD2d 804, 805, affd on opn below 46 NY2d 1068, appeal dismissed 444 US 891; State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, supra, at 368). In the present case, the Division found that the employer failed to meet its burden at the hearing and, therefore, concluded that the employer had unlawfully discriminated against complainant. In my view, that determination was, at the very least, a reasonable conclusion to be drawn from the record. Consequently, it should not have been disturbed.

II

The basic facts are not in dispute. Complainant, Marie Johnson, is employed by the Oneida County Sheriffs Department as a Deputy Sheriff correction officer assigned to the female housing unit of the county jail. In April 1981, Ms. Johnson took and passed a civil service promotional examination for the position of correction officer sergeant. Though her examination score was among the highest and her work evaluations were always very good, Ms. Johnson was bypassed when a vacancy arose. The Sheriffs Department appointed a male candidate who ranked below her on the civil service list. There is no question that Ms. Johnson was qualified for the position of correction officer sergeant. The Sheriffs Department acknowledged that she was denied the appointment solely because she is a woman and the vacancy was in the male wing of the jail where only male sergeants were being assigned.

The only dispute at the Division hearing on Ms. Johnson’s complaint was whether the discrimination against her was justified by a sex-based BFOQ. The Sheriffs Department sought to prove that sex was a BFOQ for the position through the testimony of a single witness, the County Sheriff, who had made the final decision not to appoint Ms. Johnson. The Sheriff testified that Ms. Johnson would have been appointed if the vacancy had been in the female wing of the jail but, in order to protect the privacy rights of the male inmates, he did not assign women to the male wing. Corrections personnel, including sergeants, regularly conduct inspections of the cell-blocks, both announced and unannounced. Because the cot and toilet in each cell and the shower units in each cellblock are in open view and, further, because the inmates do not have sleepwear, the Sheriff believed it would violate the privacy of the male inmates to have a female sergeant inspecting the cellblocks where they are housed.

The Sheriff posited no security reasons for barring a female sergeant from the male wing; he raised only privacy concerns. Nevertheless, the Sheriff could not explain why the privacy of the male inmates could not be accommodated by measures such as the installation of shower curtains and the issuance of sleepwear; he said only that these were prohibited by the State Commissioner of Corrections. The Sheriff did not cite any particular law, regulation or rule supporting his contention, and the record contains no indication of any such prohibition. In fact, the State Department of Correctional Services does employ just such measures to protect the privacy of male inmates and, moreover, for many years has had a policy of assigning guards of all ranks, regardless of sex, to supervise male inmates (see, Forts v Ward, 621 F2d 1210, 1212, 1216-1217). Additionally, the Sheriff acknowledged that the privacy of inmates in their cells is already protected by procedures requiring the announcement of an officer of the opposite sex, and he offered no reason, security or otherwise, why those privacy interests could not be further accommodated. Most significantly, the Sheriff failed to explain why, with regard to the unannounced inspections, it was not feasible simply to have male guards walk through the cellblocks while a female sergeant maintained radio contact at the desk.

The availability of these alternatives, which were not shown by any evidence in the record to be either impracticable or prohibited, demonstrates clearly the reasonableness of the Division’s determination that the Sheriff’s Department failed to satisfy its burden of proving the existence of a sex-based BFOQ (see, Green v Missouri Pac. R. R. Co., 523 F2d 1290, 1298). While the appointment of only male sergeants to the male wing of the county jail might be convenient, that is not the test. The Sheriff’s Department was required to show a reasonable degree of necessity for its refusal to promote Ms. Johnson solely on the basis of her sex (see, Diaz v Pan Am. World Airways, 442 F2d 385, 388). As the Hearing Officer correctly concluded, this it failed to do.

In City of Schnectady v State Div. of Human Rights (supra, at 429), then Judge Cooke explained the policy underlying the Human Rights Law and guiding this court’s vigorous enforcement of the prohibition against sex discrimination: "when a hiring standard adversely affects equal employment opportunity for a protected class of persons, judicial scrutiny is warranted and it is incumbent upon the employer to show that the standard bears a rational relationship to and is a valid predictor of employee job performance and that it does not create an arbitrary, artificial and unnecessary barrier to employment, operating invidiously to discriminate on the basis of impermissible classification [emphasis added]”. Here, as in that case, the employer "submitted no evidence justifying the conclusion that a female * * * officer, by virtue of her sex, is unqualified to serve as a * * * sergeant” (id. [emphasis added]).

III

The Sheriff’s Department’s reliance on Carey v New York State Human Rights Appeal Bd. (supra), decided nearly 10 years ago, is misplaced. The circumstances there were totally different. Moreover, contrary to the contention of the Sheriff’s Department, the decision in that case did not establish any per se rule permitting sex discrimination in the employment of correction officers. In Carey, this court affirmed the order of the Appellate Division which rejected a claim of unlawful sex discrimination brought by a man who was barred from taking the civil service examination for the position of correction officer (female). In contrast to the present case, the court in Carey was confirming the determination of the Division of Human Rights. In holding the Division’s determination to be conclusive under section 298 of the Human Rights Law, the court applied the correct standard of judicial review, stating that the "record of the proceedings before the Division of Human Rights and the Human Rights Appeal Board contain sufficient evidence to support the order here under review” (61 AD2d, at 805, supra [emphasis added]). The determination of the Division having been a reasonable one, supported by substantial evidence on the record as a whole, the court had no recourse under section 298 but to confirm the administrative finding. That is the standard that should be applied here.

Moreover, in Carey there was evidence of the special security needs of a correctional facility housing female inmates already sentenced to terms of imprisonment. Specifically, the evidence addressed the need for such intrusive measures as body searches of the female inmates which would be entirely inappropriate to have performed by a male guard. In the present case, no security needs were ever raised. The need for unannounced inspections was discussed by the Sheriff, but it was never suggested that performance of such inspections by a female would create security problems. The Sheriff contended only that inspections by a female might interfere with the male inmates’ privacy which, as has already been discussed, could apparently have been accommodated.

Additionally, in Carey, the examination which the complainant was not permitted to take was explicitly for positions having a sex-based BFOQ (see, Civil Service Law § 50 [8]; cf, Human Rights Law § 296 [1] [d]). In the present case, there was no such BFOQ limiting those who could take the county civil service examination for the position of correction officer sergeant and, as the record shows, Ms. Johnson was expressly given permission to take the exam. The subsequent claim of the Sheriffs Department that the position in this particular situation is subject to a BFOQ which disqualifies Ms. Johnson is entitled to little weight unless well proven (see, City of Schenectady v State Div. of Human Rights, supra, at 429)— and it clearly has not been. Finally, as the dissenters at the Appellate Division in this case aptly noted, following the decision in Carey the State Department of Correctional Services adopted a sex-neutral employment policy. The execution and success of that policy surely undermines the continued validity of any sex-based BFOQ for the correction officer position denied to Ms. Johnson (see, Forts v Ward, supra, at 1216-1217; cf., Dothard v Rawlinson, 433 US, at 341, supra [Marshall, J., concurring in part]; Gunther v Iowa State Men’s Reformatory, 462 F Supp 952, 957).

For the foregoing reasons, I would reverse the order of the Appellate Division and reinstate the determination of the Division of Human Rights that the denial of complainant’s promotion was an unlawful discriminatory practice, on the basis of sex, in violation of section 296 of the Human Rights Law.

Order affirmed, etc.


text:
    In the Matter of Anonymous (Billie Boggs), an Allegedly Mentally Ill Patient, Appellant, v New York City Health and Hospitals Corporation et al., Respondents.
    Submitted February 1, 1988;
    decided February 4, 1988
   Motion to dismiss appeal dismissed as academic.

Motion for leave to appeal dismissed as moot. [See, 70 NY2d 972.]


text:
    Sol Marta O’C. Morales, as Administratrix of the Estate of Jose S. Ballester, Deceased, et al., Appellants-Respondents, v City of New York et al., Defendants, Washington Bros. Realty, Inc., Respondent-Appellant, and Power Test Petroleum Distributors, Inc., et al., Respondents. (Action No. 1.) Jamie Feliz, as Administrator of the Estate of Evelyn Sanchez, Deceased, et al., Appellants-Respondents, v City of New York et al., Defendants, and Washington Bros. Realty, Inc., Respondent-Appellant and Third-Party Plaintiff-Appellant. City of New York et al., Third-Party Defendants; Power Test Petroleum Distributors, Inc., et al., Third-Party Defendants-Respondents. (Action No. 2.)
    Argued January 11, 1988;
    decided February 9, 1988
    APPEARANCES OF COUNSEL

      Herman Schmertz for Sol Marta O’C. Morales and others, appellants-respondents.

      David Kapell for Jamie Feliz and others, appellants-respondents.

      Lewis I. Wolf for respondent-appellant.

      Patrick J. Dwyer and Louise A. Derevlany for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs seek to recover for death and injuries sustained by patrons of a social club burned by arsonists in October of 1976. The gasoline used as an accelerant was purchased by the arsonists at a Power Test gasoline station, where it was pumped by an attendant into a plastic milk container supplied by the arsonists. The plaintiffs seek to hold Power Test and two other defendants connected with the gas station (hereafter "the Power Test defendants”) liable on the theory that the gasoline was sold in violation of section C19-53.0 of the Administrative Code of the City of New York (now § 27-4058), because the container in which it was purchased was not an "approved type” under this law. They also rely on section 09-153.0 of the code (now § 27-4255) which creates a cause of action for those "burned by the explosion of any compound or mixture the sale of which is prohibited by this title”. The defendant Washington Bros. Realty, owner of the building where the social club was located, seeks contribution from these defendants on the same theory.

The Power Test defendants moved for summary judgment dismissing the complaints and cross claim on the grounds, among others, that the sale did not violate the code, that they are not responsible for the actions of the attendant who was employed by a third party, and that the alleged violation was not causally related to the injury. Special Term granted the motion on the latter ground and reached no other issues. The court concluded that there was no "practical or reasonable causal connection” between the alleged "technical violation of the sale of gasoline in an illegal container” and the injuries resulting from the arson. The Appellate Division affirmed, without opinion (123 AD2d 904).

On this appeal the plaintiffs argue that the decision below is inconsistent with the holding in Daggett v Keshner (284 App Div 733, judgment affd on subsequent appeal 6 AD2d 503, affd 7 NY2d 981).

In Daggett the owner of a gasoline station was held liable for injuries sustained in an arson when he sold gasoline to arsonists in violation of several code provisions. There it was noted that the section of the code imposing civil liability for violations causing injury, relieved the plaintiff of the traditional common-law burden of establishing proximate cause. Thus the fact that the intervening acts of the arsonists might be viewed as the proximate cause of the injury would not defeat the statutory cause of action if the plaintiff could demonstrate a practical or reasonable causal connection between the violation and the injuries (Daggett v Keshner, 284 App Div 733, 738, supra). The court cautioned, however, that a cause of action could not be maintained for a mere technical violation of the statute which is not pragmatically related to the injuries sustained (id., at 740).

In Daggett the defendant sold very large quantities of gasoline without a permit required by the code and without notifying the Fire Commissioner, also required by the code. Indeed he had sold the gasoline to known criminals, had permitted them to store it on his premises, and had helped them conceal it. The defendant’s violation of the permit and notice requirements was causally related to the injuries in a practical sense, since those requirements were designed to alert the authorities to unusually large sales of untanked gasoline, which might be used for arson, so that they could investigate and prevent the injury.

In the case now before us the requirement that gasoline be sold or delivered only in approved containers bears no relationship to arson. It may be, as the plaintiffs contend, that the harm might not have occurred had the Power Test attendant refused to sell the gasoline in an unapproved container because the arsonists may have been unable to obtain one at that hour of the night. However, that fact does not establish the requisite legal connection between the statutory violation and the injuries. The statute was obviously designed to make transport and storage of gas safe by preventing accidental leakage or explosion, not to make it more difficult to buy untanked gasoline at night. Thus, assuming there was a violation by these defendants, it was a mere technical one bearing no practical or reasonable causal connection to the injury sustained.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


text:
    Teresa A. Scheemaker, Respondent, v State of New York, Appellant.
    (Claim No. 66508.)
    Argued January 7, 1988;
    decided February 9, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      Steven A. Maas and Stephen G. Brooks for respondent.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed, with costs.

The record contains sufficient proof to create a question of fact as to the State’s negligence in failing to conduct an adequate investigation and study in making its determination that the 25-mile-per-hour advisory speed sign was the appropriate traffic control device for the intersection. Thus, we reject the State’s argument that it is protected from liability under the doctrine of qualified immunity stated in Weiss v Fote (7 NY2d 579; see, Alexander v Eldred, 63 NY2d 460, 465, 466; cf., Friedman v State of New York, 67 NY2d 271, 280). We agree with the Appellate Division that Atkinson v County of Oneida (59 NY2d 840) is distinguishable and that, therefore, the record presents a factual question whether the State’s negligence was the proximate cause of the accident. Because they have support in the record, the affirmed findings as to the State’s negligence, apportionment of fault between claimant and the State and the rejection of the State’s seat belt defense (see, Spier v Barker, 35 NY2d 444) are matters beyond our review. The State’s alternative argument, urged for the first time on appeal, that claimant’s failure to use a seat belt should have been considered on the issue of her comparative fault was not preserved for review.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.