text:
    Robert E. Belknap, III, et al., as Coexecutors of Wolfram L. Ertinger, Deceased, Appellants, v Dean Witter & Co., Inc., et al., Respondents.
    Argued January 12, 1984;
    decided February 16, 1984

      APPEARANCES OF COUNSEL

      John Hay McConnell, Stephen A. Agus and Ellen Dowd Vitale for appellants.

      Jeffrey G. Steinberg and Christopher S. Rooney for respondents.
   OPINION OF THE COURT

Memorandum.

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

The April, 1968, corporate resolution of Laird, Bissel & Meeds, Inc. (LBM), on which plaintiffs’ decedent’s right to a pension is grounded, provided that “[i]n case of merger, the firm would attempt to have the pension continued, but could not, of course, guarantee that this would be the case.” As a consequence of this limitation, at the moment LBM merged with defendant, LBM’s responsibility to provide a pension could not be deemed a “debt, liability, [or] duty” that defendant agreed or was obligation to assume under section 1 (b) (ii) of the merger agreement. Insofar as that agreement was otherwise silent on the issue whether defendant had contracted to provide the pension, it was proper to admit extrinsic evidence that was probative of the parties’ intent (see Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456, 460).

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Luz M. Rodriguez, Individually and as Mother and Natural Guardian of Alberto Miranda, an Infant, Respondent, v George P. Baker et al., Respondents, and Poirer & McLane Corporation and Raymond DiMenna Corporation, a Joint Venture, Appellants.
    Argued January 10, 1984;
    decided February 16, 1984

      APPEARANCES OF COUNSEL

      Patrick A. Lyons and Steven B. Prystowsky for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Pamela Seider Dolgow and Ronald E. Sternberg of counsel), for City of New York, respondent.

      Robert M. Ginsberg for plaintiff-respondent.

      Thomas V. McMahon for George Baker and others, respondents, precluded.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Arnold L. Fein at the Appellate Division (91 AD2d 143).

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


text:
    Ottavio Scivoletti, Appellant, v Antoinette Marsala, as Executrix of Beatrice Annarella, Deceased, et al., Respondents.
    Decided February 16, 1984

      APPEARANCES OF COUNSEL
    A. Rene Hollyer for appellant.

      Ross M. Branca for respondents.
   OPINION OF THE COURT

Memorandum.

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

The record does not contain evidence to support a finding of any promise, express or implied, to convey the premises to plaintiff and, consequently, a constructive trust may not be imposed. (See Sharp v Kosmalski, 40 NY2d 119.) Further, in the circumstances of this case, there being no implied promise to convey, reimburse or to grant a lesser interest in the property, plaintiff’s mere expectation, however sincere, is insufficient to establish an equitable lien. (See 51 Am Jur 2d, Liens, § 24.) Since no debt, duty or obligation of the decedent to the plaintiff has been demonstrated, an equitable lien cannot be imposed.

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

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, in a memorandum.


text:
    Mildred Tongue, Respondent, v Vernon Tongue, Appellant.
    Decided February 16, 1984
    APPEARANCES OF COUNSEL

      Robert W. Kahn and Peter K. Levine for appellant.

      Michael R. Cuevas for respondent.
   OPINION OF THE COURT

Memorandum.

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

Both plaintiff and defendant agreed on the record in open court not to contest the allegations of each other’s claims for divorce and to take “a mutual divorce against one another.” After receiving competent oral proof of the grounds for divorce, in accordance with section 211 of the Domestic Relations Law, the court adjudged plaintiff and defendant to be absolutely divorced. Inasmuch as defendant received precisely what he had requested and stipulated to, he is not an aggrieved party within the purview of CPLR 5511. The Appellate Division, therefore, correctly dismissed his appeal.

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

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, in a memorandum.


text:
    Carmen Montalvo, on Behalf of Herself and Her Infant Children, Appellant, v Consolidated Edison Company of New York, Inc., et al., Respondents, et al., Defendant.
    Argued January 10, 1984;
    decided February 16, 1984

      APPEARANCES OF COUNSEL

      Stacy Cromidas, Kalman Finkel and David Goldfarb for appellant.

      Bernard Hulkower and Kenneth Shaw for Consolidated Edison Company of New York, respondent.

      Lawrence G. Malone and David E. Blabey for Public Service Commission, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Theodore R. Kupferman at the Appellate Division (92 AD2d 389). Question certified not answered as unnecessary.

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


text:
    Mike Stoganovic et al., Appellants, v Pat V. Dinolfo, Respondent.
    Argued January 12, 1984;
    decided February 16, 1984

      APPEARANCES OF COUNSEL

      Richard T. Sullivan for appellants.

      Pat V. Dinolfo, pro se, and Philip S. Glickman for Pat V. Dinolfo, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (92 AD2d 729).

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


text:
    Health Care Plan, Inc., Appellant, et al., Petitioners, v Victor Bahou, Individually and as President and Commissioner of the Civil Service Commission, Respondent.
    Argued January 11, 1984;
    decided February 16, 1984

      APPEARANCES OF COUNSEL

      James L. Magavern for appellant.

      Robert Abrams, Attorney-General (John Q. Driscoll and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division insofar as appealed from should be modified, with costs, so as to direct the respondent commissioner to refund the petitioner’s 1980 subscribers the amounts by which they were overcharged for their contributions to petitioner’s plan in 1980. The case should be remitted to the Supreme Court, Erie County, for the entry of judgment consistent with this memorandum.

The petitioner, Health Care Plan, Inc., is a health maintenance organization which is authorized to offer an optional benefit health insurance plan for State employees. Pursuant to law the State is obligated to pay a prescribed portion of the subscriber’s cost (see Civil Service Law, § 167, subd 1; US Code, tit 42, § 300e-9, subd [a], par [1]; 42 CFR 110.808 [a]; 110.801). In this article 78 proceeding the petitioner contends that in 1980 the State contributed less than the law provides, and accordingly imposed excess charges on the. public employees who subscribed to the plan. Petitioner requested that the court direct the Commissioner of Civil Service, the official responsible for assessing and remitting the respective contributions, to increase the State’s contribution and correspondingly reduce employee contributions in such amounts as may be necessary to adjust the disparity, and such other relief as may be just. Petitioner also sought reimbursement for counsel fees.

The Supreme Court granted the petition to the extent of directing the commissioner to pay the contested amounts to petitioner noting that petitioner should “be allowed to pass [its] saving” on to its subscribers. The request for counsel fees was denied.

On cross appeals the Appellate Division found that the petitioner had standing, and that the State had overcharged petitioner’s subscribers as alleged. The court held, however, that petitioner “is aggrieved only to the extent that respondent’s acts may have discouraged employees from enrolling or remaining in its plan. It has otherwise received either from its members or from the State the full premium to which it was entitled for the year 1980. No direction of further payment to HCP should be made” (92 AD2d, p 149). Thus the court modified by denying any relief by way of reimbursement to petitioner or those subscribers who had not personally joined in the suit.

Petitioner has appealed from the modification. It contends that the Appellate Division’s decision is inconsistent insofar as it recognized petitioner’s standing to contest the overcharge to its subscribers, as well as the merit of its contention, but denied any reimbursement, directly or through petitioner, to those subscribers who did not personally join in the suit. The State recognizes the right of all the subscribers to obtain reimbursement for the excess contributions they made in 1980, but disputes the right of the petitioner itself to recover the overcharges which it “may”, but need not, pass on to its subscribers as the Supreme Court held.

Under the circumstances we can see no sufficient reason why the commissioner should not be directed to make the reimbursement directly to those subscribers who in fact were overcharged in 1980. In our view that would constitute just relief consistent with the petition and the finding that petitioner has standing to bring the suit. In addition we note that petitioner has expressed a willingness to accept this relief as an appropriate means to restore its competitive position, which the Appellate. Division recognized may have been injured by the commissioner’s prior actions.

We have considered the petitioner’s other contentions and find that they are without merit, including the contention that mandamus should be available to compel the commissioner to compute the respective contributions in accordance with 42 CFR 110.808 [g] (see Matter of Suffolk Outdoor Adv. Co. v Town of Southampton, 60 NY2d 70).

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

Order modified, with costs to appellant, and matter remitted to Supreme Court, Erie County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Chelsea National Bank, Appellant, v Lincoln Plaza Towers Associates, Respondent.
    Argued January 10, 1984;
    decided February 16, 1984

      APPEARANCES OF COUNSEL

      Bruce N. Lederman and Stanley Alter for appellant.

      Edward A. Friedman and David O. Wright for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly concluded that defendant’s motion to dismiss at the end of the trial should have been granted. Although it is true, as plaintiff argues, that the 1973 guarantee by the partnership of the loan to Lincoln Plaza, Inc., was a continuing guarantee, the partnership agreement did not give the general partners authority to guarantee the debts of others nor did Greenfield have authority in the first instance to act alone without seeking the consent of LPT Inc., the corporate general partner. Authority to execute the guarantee could not be implied, as a matter of law (First Nat. Bank v Farson, 226 NY 218, 223), and there was no factual showing of conduct on the part of the partnership such as would vest Greenfield with apparent authority (Greene v Hellman, 51 NY2d 197, 204; Ford v Unity Hosp., 32 NY2d 464, 472-473).

Nor was there evidence of ratification sufficient to take that issue to the jury. The fact that Mr. Saiman was present at the closing at which $100,000 of the 1973 $300,000 loan to Lincoln Plaza, Inc., was rolled over was not enough. He was present as attorney for the partnership. That he was also assistant secretary of.LPT Inc., did not give him authority to act on behalf of the partnership to ratify the guarantee of the loan to Lincoln Plaza, Inc., any more than Greenfield had to act on its behalf to execute the guarantee in the first instance. Moreover, the evidence of Saiman’s knowledge of the purported 1973 partnership guarantee and of the partnership’s receipt of the proceeds of the $100,000 loan was so equivocal as to be insufficient to present a jury issue of ratification (see Holm v C. M. P. Sheet Metal, 89 AD2d 229; 21 NY Jur, Estoppel, Ratification & Waiver, § 86).

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

Order affirmed, with costs, in a memorandum.


text:
    Judnick Realty Corporation, Respondent, v 32 West 32nd Street Corp., Appellant.
    Argued January 12, 1984;
    decided February 16, 1984

      APPEARANCES OF COUNSEL

      Beth J. Goldmacher for appellant.

      Howard Karasik and Michael Wexelbaum for respondent.
   OPINION OF THE COURT

Memorandum.

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

The limitation of liability clause of the contract (par 22) became operative only if the seller was unable to convey in accordance with the terms of the contract. One of the terms of the contract, however, was that the purchaser could declare the contract null and void if by May 15,1979 the seller was unable to make the second floor loft available, vacant and free of tenancies or occupancy (rider, par 1) and the purchaser was also given “the right to extend the date set forth in paragraph 1 to this rider at its sole option and discretion without declaring this contract null and void” (rider, par 12). Thus, the second floor tenant’s continued occupancy would not make the seller unable to convey in accordance with the contract if the purchaser exercised its option to extend the paragraph 1 date for second floor vacancy, and in that event paragraph 22 of the contract would afford the seller no protection. Such is the plain meaning of the three contract provisions when read together as they must be. That the original closing date fixed by the contract was May 31, 1979 and that rider paragraph 12 spoke of extension of the date in paragraph 1 rather than of the closing date does not militate against that interpretation, for extension of the paragraph 1 vacancy date would be meaningless if the closing date were not by reason of the exercise of the option also extended. Moreover, nothing in the contract made time of the essence.

The suggestion that paragraph 12 of the rider was intended to afford the purchaser the option to extend the vacancy date only once is, in the face of the parol evidence rule and the merger clause contained in the contract, not sustainable, the contract not being ambiguous in this respect but, in any event, the conclusory statements in the affidavit of the attorney who negotiated the contract for the seller are insufficient to raise a triable issue of fact in this respect (Freedman v Chemical Constr. Corp., 43 NY2d 260; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285).

Neither the fact that the purchaser indicated in its attorney’s August 7,1979 letter an intent to sue for specific performance with an abatement if the second floor was not vacated by September 6, 1979, nor that it thereafter sued for specific performance as well as for specific performance with an abatement, constituted a refusal on its part to close title nor did either make time of the essence of the contract. There is no inconsistency between an action for specific performance and-an action for breach of contract, both being in affirmance of the contract (Miles v Dover Furnace Iron Co., 125 NY 294; Balleisen v Schiff, 121 App Div 285). Clearly, therefore, in seeking both specific performance and specific performance with an abatement the purchaser was insisting upon what it contracted for.

Finally, the second floor tenant having vacated after the institution of the specific performance action, and the purchaser having amended its complaint to seek only specific performance, the purchaser is entitled to that relief under S.E.S. Importers v Pappalardo (53 NY2d 455). Shepard v Spring Hollow at Sagaponack (87 AD2d 126, mot for lv to app den 58 NY2d 610), relied on by defendant, is not inconsistent with the result here reached, for the Shepard contract contained no open-ended closing provision such as was involved in S. E. S. Importers and is involved in this case. The correspondence between the attorneys makes clear that the purchaser consistently sought completion of the contract with or without abatement and the seller presents nothing more than speculation to suggest that the delay in closing was either unreasonable or the result of bad faith.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Jack J. Frishman, Appellant, v Robert Schmidt et al., Constituting the Zoning Board of Appeals of the Town of North Castle, Respondents.
    Decided February 16, 1984

      APPEARANCES OF COUNSEL

      Alfred D. Fredericks for appellant.

      Joseph J. Buderwitz, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

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

The rule that a zoning ordinance is to be strictly construed in favor of the property owner (see Matter of Allen v Adami, 39 NY2d 275, 277) is subject to the limitation that where it is difficult or impractical for a legislative body to lay down a rule which is both definitive and all-encompassing, a reasonable amount of discretion in the interpretation of the legislative direction may be delegated to an administrative body or official (Matter of Barney's, Inc. v Department of Fin., 61 NY2d 786; Matter of Marburg v Cole, 286 NY 202, 212). Under a zoning ordinance which authorizes interpretation of its requirements by the board of appeals, specific application of a term of the ordinance to a particular property is, therefore, governed by the board’s interpretation, unless unreasonable or irrational (Matter of 440 E. 102nd St. Corp. v Murdock, 285 NY 298,309; Matter of Albert v Board of Stds. & Appeals, 89 AD2d 960, 962; Corter v Zoning Bd. of Appeals, 46 AD2d 184, 186).

At issue on this appeal is whether petitioner may subdivide his residential plot by the creation of a pothandle or flag-shaped parcel on which the new residence would be located behind the present residence. The proposed new parcel concededly conforms to ordinance requirements in all respects other than average width. Whether it conforms to the latter requirement turns on where its rear lot line is located. Section 220 of the ordinance defines “rear lot line” as the “line which is generally opposite the front lot line” but provides an alternative definition if the lot comes to a point at the rear, and section 411.05 authorizes the board of appeals to determine the proper application of any requirement of the ordinance to a particular parcel “of peculiar or irregular shape.” On the record before us the board’s conclusion that the line which petitioner contends is the rear lot line is not generally opposite the front lot line and that the lot comes to a point in the rear is neither unreasonable nor irrational. A variance was, therefore, required.

We agree with the Appellate Division, however, for the reasons stated in its memorandum (96 AD2d 1043), that the board’s denial of petitioner’s variance application was reasonable and was supported by substantial evidence.

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

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, in a memorandum.


text:
    In the Matter of Cathedral of the Incarnation, Appellant, v James L. Glimm et al., Constituting the Board of Zoning Appeals of the Incorporated Village of Garden City, Respondents.
    Decided February 16, 1984

      APPEARANCES OF COUNSEL

      John F. Coffey for appellant.

      Daren A. Rathkopf for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Courts of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (97 AD2d 409).

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


text:
    New York Seven-Up Bottling Company, Inc., Appellant, v Dow Chemical Company, Respondent, et al., Defendants. (And a Third-Party Action.)
    Decided February 16, 1984

      APPEARANCES OF COUNSEL

      Frank H. Connelly, Jr., for appellant.

      Bruce D. Drucker 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, with costs, for reasons stated in the memorandum at the Appellate Division (96 AD2d 1051). We note, however, that this case, unlike Lindsey v Robins Co. (60 NY2d 417, 429), does not involve a fact question concerning when the defect first caused injury. Here the roof was leaking “like a sieve” in 1972, so injury to plaintiff from the defect clearly occurred more than three years before suit was brought.

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


text:
    The People of the State of New York, Respondent, v Raymond R. Swanchak, Appellant.
    Decided February 16, 1984

      APPEARANCES OF COUNSEL

      Lois McS. Webb for appellant.

      Joseph W. Kelley, District Attorney, 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 reasons stated in the memorandum at the Appellate Division (95 AD2d 957).

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


text:
    In the Matter of Martin B. Biener, Respondent, v Incorporated Village of Thomaston et al., Appellants.

      Decided February 16, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that an appeal pursuant to CPLR 5601 (subd [d]) does not lie to review an order of the Appellate Division made in an earlier proceeding (Matter of Concerned Citizens to Review Jefferson Val. Mall v Town Bd. of Yorktown, 54 NY2d 957, 958).


text:
    James R. Gould, Jr., et al., Respondents, v Charles I. Furbish et al., Appellants, et al., Defendant.
    Submitted January 9, 1984;
    decided February 16, 1984
   Motion for leave to appeal, pursuant to CPLR 5602 (subd [a], par 1, cl [ii]), dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that defendants have an appeal pending in the Appellate Division from the judgment here sought to be appealed (see Parker v Rogerson, 35 NY2d 751).


text:
    The People of the State of New York, Respondent, v Timothy Kirby, Appellant.
    Submitted January 16, 1984;
    decided February 16, 1984
   Motion to vacate this court’s order of dismissal dated December 2, 1983 dismissed as academic. [See 61 NY2d 671.]


text:
    In the Matter of Gerald S. Mazur, Appellant, v James V. Ryan, as Supervisor of the Town of Tonawanda, et al., Respondents.
    Decided February 16, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of the Estate of Cecilia Romano, Deceased. John R. McNulty et al., Appellants; Gordon R. Ellison, as Executor of Cecilia Romano, Deceased, et al., Respondents.
    Submitted January 9, 1984;
    decided February 16, 1984
   Motion for leave to appeal dismissed for failure to demonstrate the timeliness of the motion as required by rule 500.11 (d) (1) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1]) (see Manolakos v Manolakos, 56 NY2d 591).


text:
    Tri-City Electric Co., Inc., et al., Respondents, v The People of the State of New York et al., Defendants, Suburban Excavators, Inc., et al., Respondents-Appellants, and Lake Steel Erection, Inc., et al., Appellants-Respondents.
    Submitted December 27, 1983;
    decided February 16, 1984
   Motion to dismiss appeal taken by Lake Steel Equipment Rental, Inc., granted and said appeal dismissed, without costs, and, on the court’s own motion, cross appeal taken by Suburban Excavators et al. dismissed, without costs, each upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion to dismiss appeal taken by Lake. Steel Erection, Inc., denied. Motion to compel acceptance of notice of cross appeal as timely dismissed as academic.


text:
    Samuel Weinberg, Appellant, v Transamerica Insurance Company, Respondent.
    Submitted January 30, 1984;
    decided February 16, 1984
   Motion to vacate the Court of Appeals order of dismissal dated January 17, 1984 granted. [See 61 NY2d 761.]


text:
    The People of the State of New York, Respondent, v Edward W. Hall, Appellant.
    Argued January 6, 1984;
    decided February 21, 1984
    APPEARANCES OF COUNSEL

      Bruce J. Miller for appellant.

      Denis Dillon, District Attorney (Douglas R. Noll and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of criminally negligent homicide (Penal Law, § 125.10), arising out of a single-car accident on November 3, 1979 in which defendant was the operator of the vehicle and as a result of which his passenger was killed. After the impact and while unconscious, defendant was taken to a hospital. While there and still in that condition, he was arrested and a blood sample was extracted which indicated that he was intoxicated at the time of the occurrence.

Defendant argues that, under this court’s decision in People v Moselle (57 NY2d 97), the chemical blood test results should have been suppressed because a blood sample taken pursuant to section 1194 of the Vehicle and Traffic Law, without a separate court order, may not be used in prosecutions brought under the Penal Law. This argument was not properly preserved for this court’s review as defendant failed to raise that specific argument at the suppression hearing (see People v Colon, 54 NY2d 913, 914-915; People v Thomas, 50 NY2d 467, 471).

Alternatively, defendant claims that the results of the analysis of his blood should not have been admitted because it was not taken in compliance with section 1194 of the Vehicle and Traffic Law. This is not persuasive, as the sample was taken within two hours of the arrest by a registered nurse at the request of a police officer, who had reasonable grounds to believe that defendant had been operating a vehicle in violation of section 1192 of the Vehicle and Traffic Law. Defendant’s consent to provide a blood sample was implied under section 1194 of the Vehicle and Traffic Law, notwithstanding that he was unconscious at the time of the blood withdrawal (see People v Kates, 53 NY2d 591, 595-596). The statute’s requirements having been met, there was no basis for suppression.

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

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

Order affirmed in a memorandum.


text:
    James McKinney & Son, Inc., Appellant-Respondent, v Lake Placid 1980 Olympic Games, Inc., Respondent, and Gilbane Building Company, Respondent-Appellant, et al., Defendants.
    Argued January 9, 1984;
    decided February 21, 1984

      APPEARANCES OF COUNSEL

      James F. Downs for appellant-respondent.

      Julius L. Schapira, George N. Toplitz and Kalvin Kamien for respondent-appellant.

      Michael P. Shanley for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant Gilbane Building Company against plaintiff, by granting defendant Gilbane’s motion for summary judgment dismissing the complaint as against it. As so modified, the order should be affirmed, with costs to defendant Lake Placid 1980 Olympic Games, Inc., against plaintiff. The certified question should be answered in the negative.

In May, 1977, plaintiff James McKinney & Son, Inc., contracted with defendant Lake Placid 1980 Olympic Games, Inc. (LPOG), to fabricate and erect certain steel structures for use in the construction of the Olympic Field House. LPOG separately contracted with defendant Gil-bane Building Company to act as project manager to supervise and inspect the construction. On March 31, 1978, LPOG terminated the contract with plaintiff because the latter was encountering great difficulties in meeting the design specifications. On April 7, 1978, McKinney initiated a Federal bankruptcy proceeding.

Reliance Insurance Company, as plaintiff’s surety, had provided performance and payment bonds on an ongoing basis since at least 1974, including bonds on the field house project. In order to protect itself from any losses in connection with these instruments, Reliance had obtained a continuing indemnification agreement from plaintiff. This agreement provided that “all rights” of plaintiff “in, or growing in any manner out of” a contract guaranteed by any Reliance bond would be completely and automatically assigned to the surety in the event that plaintiff failed or was unable to complete a contract guaranteed by any bond or became involved in any proceeding of bankruptcy. Reliance was also empowered to execute any release of property which it received by assignment under the agreement and to sign “any other paper or contract necessary or desired to carry into effect the purposes of [the indemnification] Agreement.”

Pursuant to this agreement, Reliance took over plaintiff’s field house contract after plaintiff was no longer able to perform. Reliance also was unable to complete performance and on June 13, 1978, it settled with LPOG. Under the settlement, Reliance released LPOG “from all claims, causes of action or suits, which [Reliance] now [has] or may have in the future, by assignment or otherwise, including * * * any claims, suits, or causes of action arising out of” plaintiff’s contract for the Olympic Field House.

Plaintiff instituted this action in 1980 claiming that LPOG provided defective designs which caused plaintiff’s inability to perform under the contract, and that Gilbane, in its capacity as project manager, had fraudulently and negligently permitted the design defects to exist. Defendants, answering separately, asserted as affirmative defenses that Reliance, not plaintiff, was the real party in interest, and that plaintiff was barred from maintaining the suit because of the release furnished by Reliance. Defendants moved under CPLR 3212 for summary judgment, each seeking dismissal of the complaint.

By the terms of the continuing indemnification agreement, all rights that plaintiff had “in or growing in any manner out of” its contract with LPOG were fully assigned to Reliance, at the latest, when plaintiff filed for bankruptcy. Consequently, plaintiff is no longer the real party in interest with respect to claims against LPOG by virtue of this assignment. By the same reasoning, neither is plaintiff the real party in interest with respect to the claims asserted against Gilbane. Plaintiff, therefore, had no right to maintain any of its claims against either LPOG or Gilbane and summary judgment, dismissing the complaint, should be granted as to each of said defendants.

In light of this disposition, there is no need to determine the effect of the release executed by Reliance to LPOG.

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

Order modified, with costs to defendant Gilbane Building Company against plaintiff, in accordance with the memorandum herein and, as so modified, affirmed, with costs to defendant Lake Placid 1980 Olympic Games, Inc., against plaintiff. Question certified answered in the, negative.


text:
    Adell Johnson et al., Individually and as Guardians of Shawn Nolley, an Infant, Appellants, v New York Daily News et al., Respondents.
    Decided February 21, 1984

      APPEARANCES OF COUNSEL

      William G. Crane for appellants.

      Joseph Chase for respondents.
   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 reasons stated in the memorandum at the Appellate Division (97 AD2d 458).

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


text:
    Castagna & Son, Inc., et al., Respondents, v Alan Michel Plumbing, Inc., Appellant.
    Argued January 5, 1984;
    decided February 21, 1984

      APPEARANCES OF COUNSEL

      Clifford M. Solomon and Erwin L. Corwin for appellant.

      Cynthia Boyer Okrent and Leonard Lazarus for respondents.
   OPINION OF THE COURT

Memorandum.

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

The subcontract between respondent and petitioner Castagna contains no provision for arbitration. Rather, it provides for determination of any controversy pursuant to the New York Simplified Procedure for Court Determination of Disputes, provided no other provision of the subcontract or of the construction contract between Castagna and petitioner Church Charity Foundation “provides for a determination thereof by other means.”

For a number of reasons the construction contract cannot be said to provide for arbitration between respondent and petitioners as respondent has demanded. First, respondent sought an amendment of the subcontract to provide for arbitration, but nevertheless executed it as drawn after the requested amendment was refused. Second, although the construction contract contains an arbitration clause, it requires arbitration only of disputes “arising out of or relating to this Agreement.” Third, articles I and II of the subcontract, which bound respondent by the terms of the construction contract so far as applicable to respondent’s work, relate to the work to be performed by respondent, not to the arbitration provisions of the construction contract. Finally, the A.I.A. Supplementary General Conditions cannot be deemed the clear expression of intention to arbitrate required to bind petitioners to that method of dispute resolution (Matter of American Rail & Steel Co. [India Supply Mission], 308 NY 577; Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288). Although article XXXXIX of the subcontract described the construction contract as inclusive of the Supplementary General Conditions, those conditions did provide that all provisions of the A.I.A. General Conditions “shall be applicable to all contractors and subcontractors” and the General Conditions did include provision for arbitration of disputes “arising out of, or relating to, this Contract,” that provision for arbitration as to subcontractors must be deemed too attenuated and arcane to bind petitioners in the face of their rejection of respondents’ request for inclusion of an arbitration provision in the subcontract.

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

Order affirmed, with costs, in a memorandum.


author: Jasen, J.

text:
    In the Matter of the City of New York, Relative to Acquiring Title to Real Property for the Staten Island Industrial Park in the Borough of Richmond, Appellant. Jomar Real Estate Corp., Respondent.
    Argued January 11, 1984;
    decided February 21, 1984

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Joseph A. Vogel and Leonard Olarsch of counsel), for appellant.

      M. Robert Goldstein and Samuel Goldstein for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (94 AD2d 724), to which we add that claimant’s introduction of the determination of the city planning commission with respect to another Victory Boulevard property within one-half mile of the subject parcel that “Analysis of the market area * * * indicates the ability to currently support 160,000 square feet of commercial space, comprised of convenience, service and local shopping space” also tended to establish the economic feasibility of a shopping center use.

Concur: Chief Judge Cooke and Judges Jones, Wachtler, Meyer and Kaye. Judge Jasen dissents and votes to reverse in an opinion. Taking no part: Judge Simons.

Jasen, J.

(dissenting). I would hold that the claimant failed to establish that the highest and best use of the vacant land condemned was for a shopping center and that the weight of the credible evidence more nearly supports the use and value found by the trial court than that found by the Appellate Division. (Grant Co. v Srogi, 52 NY2d 496; Mattydale Shopping Center v State of New York, 303 NY 974.)

In a condemnation proceeding the condemnee has the burden of proving the highest and best use of the condemned property. (Matter of City of New York [Franklin Record Center], 59 NY2d 57, 63; Heyert v Orange & Rock-land Utilities, 17 NY2d 352, 362.) Here, claimant has done little more than raise the hypothetical possibility of a community shopping center and the record is devoid of evidence establishing a reasonable probability that such a use could have or would have been made in the reasonably near future. (See Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535, 536; Matter of City of New York [Shorefront High School — Rudnick], 25 NY2d 146, 149.) Claimant failed entirely to demonstrate that its purported plans were realistic. It undertook no economic feasibility study, formal or otherwise. It produced no evidence whatsoever that it explored the availability of financing, the costs of construction, the extent of tax liability, the range of possible profits or any other similar criteria which would normally be expected to have been employed in actually determining the plausibility of such an anticipated use. (Matter of City of New York [Shorefront High School — Rudnick], supra.) Moreover, claimant has not identified any preliminary steps which it has actually taken toward development of the property for the specific purpose of erecting a shopping center. While it is not essential that a condemnee have an ante litem plan for highest and best use (Keator v State of New York, 23 NY2d 337, 339), claimant here has attempted to bolster its claim by showing that it was implementing such a plan at the time of the condemnation. But, in fact, claimant’s attempt only highlights the absence of any concrete steps having been taken. No arrangements for financing were made, no contracts for construction, or for management, or for leasing were signed, no assurances for any utility services were obtained, nor was anything else done which would clearly confirm claimant’s alleged intentions. Indeed, those few actions which claimant did take, such as purchasing rights to sewer hookups, leveling the land and widening a strip of one road, do not manifest anticipation of any particular use, but, rather, are consistent with any development of the land, including the industrial park use for which it was condemned. To be sure, rather than making actual preparations, claimant has done little else but speculate about the theoretical possibility of a hypothetical shopping center.

In support of its position that a shopping center was both feasible and intended, claimant produced the following: aerial photographs which show little more than primarily vacant and undeveloped land with minimal access and a small residential development nearby, a rough approximation of the number of families and size of the population living within a one-mile radius, hastily drawn blueprints which were prepared and submitted after claimant had full knowledge of the impending condemnation proceeding and, indeed, concededly for the very purpose of the condemnation proceeding itself, rather than for actual development, and the testimony of an expert whose conclusions were predicated solely upon the afore-mentioned aerial photographs and population estimation — and unsupported by any study of such customary considerations as market conditions, industry trends, local consumer preferences and buying habits, disposable per capita income or any other criteria essential to verify his appraisal. Clearly, none of what claimant produced establishes the requisite “reasonable probability”, as opposed to mere possibility, that the property was conducive to development of a successful shopping center (Matter of City of New York [Broadway Cary Corp.], supra) or that claimant realistically anticipated building one. Indeed, there is nothing in the record but pure speculation to support the claim. The record fails to demonstrate that a shopping center was economically feasible, that it would have or could have been constructed and operated in the reasonably near future were it not for the condemnation, and that it was, in fact, anything other than a hastily improvised plan for the purpose of the pending condemnation proceeding.

Inasmuch as claimant has not undertaken even the slightest study to determine the economic feasibility of a community shopping center or taken any concrete steps specifically in preparation thereof, it was error for the Appellate Division to find that claimant had met its burden of proving the highest and best use for the condemned land. For these reasons, I would reverse the order of the Appellate Division and reinstate the decree and award granted at Special Term.

Order affirmed, etc.

       The other Victory Boulevard property referred to by the majority is very different from the one here in question and, consequently, does not serve as an accurate basis upon which to infer a similar economic feasibility. As the city planning commission stated, in the same report relied upon by the majority, the other property is situated on “one of the busiest” intersections on Staten Island, “the neighborhood closely surrounding [that] intersection” has no convenience services, and is well suited “for commercial development to serve the immediate neighborhood” largely because of its “visibility” and “accessibility”. These factors clearly differentiate the two properties and render the analogy misleading.


text:
    Joann Best, Appellant, v City of New York, Respondent.
    Decided February 21, 1984

      APPEARANCES OF COUNSEL

      Joseph Kelner for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath of counsel), 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, with costs, for the reasons stated in the memorandum at the Appellate Division (97 AD2d 389).

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


text:
    The People of the State of New York, Respondent, v Robert Perry, Appellant.
    Decided February 21, 1984

      APPEARANCES OF COUNSEL

      John L. Pertieone, Acting Public Defender (Kenneth Ira Krigstein of counsel), for appellant.

      Patrick H. Mathews, District Attorney (Joann Rose Parry of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and a new trial ordered. The trial court’s refusal to charge on intoxication denied defendant his right to have the jury properly consider the effect intoxication could have on the element of intent (Penal Law, § 15.25). A charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis (People v Orr, 43 AD2d 836, affd 35 NY2d 829; see, also, People v Lee, 35 NY2d 826). On the present record, although defendant testified that he was aware of his actions, there is undisputed evidence of defendant’s intoxication at the time of the commission of the crime. Therefore, the trial court’s failure to charge on intoxication constitutes reversible error.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye 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 a new trial ordered in a memorandum.


text:
    The People of the State of New York, Appellant, v Walter E. Moorhead, Respondent.
    Decided February 21, 1984

      APPEARANCES OF COUNSEL

      Patrick Henry, District Attorney (Ronald E. Lipetz of counsel), for appellant.

      Arthur V. Graseck, Jr., for respondent.
   opinion of the court

Memorandum.

The order of the Appellate Term should be reversed and defendant’s motion to dismiss on speedy trial grounds (CPL 30.30) denied.

Defendant was charged with a violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law. While the prosecution was pending he made several pretrial motions.

Relevant here are motions he made on the eve of trial dates previously set. In each case the court took the motions under advisement, necessarily adjourning the trial. When the court subsequently decided the motions, it set a new trial date in its decisions. Upon the present motion to dismiss for delay, the court charged the People, in each instance, for the period of time from the court’s decision on the prior motions to the newly scheduled trial date set in its decision. Inasmuch as the District Attorney had indicated his readiness to proceed on the scheduled dates, the court should not have charged him with the delay following defendant’s motions (see People v Brothers, 50 NY2d 413; People v Hamilton, 46 NY2d 932). Nor were the People correctly charged with the full 30 days’ delay from December 6, 1982 to January 5, 1983. From December 14 until January 5, the court held under advisement defendant’s motion to reconsider its prior decision of December 6,1982 and that period of time should have been excluded.

On the record before us the People are responsible only for trial delay from April 23, 1982 to May 24, 1982, from October 7,1982 to November 3,1982 and from December 6, 1982 to December 14, 1982, a total of 66 days.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye 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 defendant’s motion to dismiss denied in a memorandum.


text:
    In the Matter of B. V. R. K. Realty Corp. et al., Appellants, v Commissioner of Housing of the City of New York, Department of Housing Preservation and Development, Office of Rent Control Division, Respondent.
    Submitted January 9, 1984;
    decided February 21, 1984
   Motion, insofar as it seeks leave to appeal from the order denying petitioners’ motion for enlargement of time, dismissed upon the ground that said order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal otherwise, denied with $20 costs and necessary reproduction disbursements.


text:
    Citizens to Save Minnewaska et al., Plaintiffs-Petitioners, v New Paltz Central School District, Defendant-Respondent. Marriott Corporation, Proposed Intervener-Appellant.
    Submitted December 27, 1983;
    decided February 21, 1984
   Motion, insofar as it seeks permission to intervene, denied with $20 costs and necessary reproduction disbursements to plaintiffs-petitioners. Motion, insofar as it seeks leave to appeal, dismissed and, on the court’s own motion, appeal taken as of right dismissed, without costs, each upon the ground that an appeal by a nonparty does not lie.


text:
    Clara Ellison, as Administratrix of the Estate of Joseph Eastman, Deceased, Respondent, v New York City Transit Authority, Appellant.
    Submitted February 6, 1984;
    decided February 21, 1984
   Motion to dismiss the appeal denied.


text:
    Globe-Mar Associates, Inc., et al., Respondents, v City of White Plains et al., Respondents, and Melville Industrial Associates, Intervenor-Appellant.
    Submitted February 8, 1984;
    decided February 21, 1984
   On the court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for an undertaking dismissed upon the ground that this court lacks power to grant relief because there is no appeal pending in this court.


text:
    In the Matter of the Application of Sebastian J. Navarra, Appellant, v The City of New York, Department of Housing Preservation and Development Office of Rent Control and Housing Maintenance, Rent Control Division, et al., Respondents.
    Submitted January 30, 1984;
    decided February 21, 1984
   Motion to vacate the Court of Appeals order dated January 24, 1984 dismissing the appeal herein, etc., denied. [See 61 NY2d 760.]


text:
    New York City Board of Education, Respondent-Appellant, v Robert L. Sears, Appellant-Respondent, et al., Respondents.
    Submitted December 27, 1983;
    decided February 21, 1984
   Motion by appellant-respondent Sears for leave to appeal dismissed and, on the court’s own motion, appeal as of right by appellant-respondent Sears and cross appeal as of right by respondent-appellant board of education from the October 24, 1983 order of the Appellate Division, seeking review of the September 28, 1981 order of the Appellate Division, each dismissed, without costs, upon the ground that no appeal lies pursuant to CPLR 5601 (subd [d]) to review an order of the Appellate Division made on an appeal in an earlier proceeding (83 AD2d 959) (see Matter of Concerned Citizens to Review Jefferson Val. Mall v Town Bd. of Town of Yorktown, 54 NY2d 957; Matter of Civil Serv. Employees Assn. v Newman, 61 NY2d 641). The appeal as of right and motion for leave to appeal by appellant-respondent Sears also are dismissed upon the ground that he is not a party aggrieved by the October 24, 1983 order of the Appellate Division, all relief sought by petitioner against respondent Sears having been denied (CPLR 5511).

Appeal and cross appeal from October 24, 1983 order of the Appellate Division seeking review of the October 24, 1983 order dismissed, without costs, upon the ground that no appeal lies as of right from that Appellate Division order which unanimously confirmed the Human Rights Appeal Board order (CPLR 5601; see Cohen and Karger, Powers of the New York Court of Appeals, § 51, pp 233-234).


text:
    The People of the State of New York, Respondent, v Henry Heinsohn, Appellant.
    Argued January 12, 1984;
    decided February 23, 1984

      APPEARANCES OF COUNSEL

      Judd Burstein and Gerald L. Shargel for appellant.

      William L. Murphy, District Attorney {Karen McGee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The evidence at trial, measured against the unexceptedto instructions to the jury, demonstrated that defendant was generally familiar with the area in which the accident occurred and that he was traveling well above the speed limit in an unregistered vehicle while tailgating a van when he suddenly pulled out to the left, crossed the center line and drove onto the safety island where he struck and killed two pedestrians.

We agree with the Appellate Division that under these facts there was sufficient proof for the jury to find that defendant was aware of and consciously disregarded a substantial and unjustifiable risk that his actions would cause the death of another. (Penal Law, § 125.15, subd 1; § 15.05, subd 3.)

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

Order affirmed in a memorandum.


text:
    In the Matter of Margaret M. Nolan, Deceased. William L. Maier, as Executor of Margaret M. Nolan, Deceased, et al., Respondents; Dolores Case, Appellant.
    Decided February 23, 1984

      APPEARANCES OF COUNSEL

      Sanford Robert Shapiro for Dolores Case, appellant.

      William L. Maier, respondent pro se.

      A. Roger Clarke for Jeanne Schlegel, 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 reversed, with costs, and objection sustained for reasons stated in the dissenting memorandum at the Appellate Division (97 AD2d 940).

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


text:
    In the Matter of Admiral Wine & Liquor Co., Also Known as Admiral Wine Merchants, Respondent-Appellant, v State Liquor Authority, Appellant-Respondent.
    Argued January 5, 1984;
    decided February 23, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (.August L. Fietkau, Frederick K. Mehlman, Richard Liskov and Peter H. Schiff of counsel), for appellant-respondent.

      Samuel Bernstein and Lewis S. Bernstein for respondent-appellant.

      Martin P. Mehler for Retailers Alliance, Inc., amicus curiae.

      Victor Feingold for Wine, Liquor & Distillery Workers Union Local 1, AFL-CIO, and others, amici curiae.

      Lawrence Kill, Steven M. Pesner, Daniel N. Sang, Scott B. Schreiber, William B. Schreiber, Michael T. Kelly, Richard M. Rosenbaum and Michael Whiteman for Peerless Importers, Inc., and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, by reinstating the State Liquor Authority’s findings with respect to charge No. 2 and otherwise affirmed. The certified question should be answered in the negative.

Subdivision 3 of section 101-b of the Alcoholic Beverage Control Law does not violate the Sherman Antitrust Act (Battipaglia v New York State Liq. Auth., 583 F Supp 8). The Appellate Division’s reliance on Matter of Mezzetti Assoc. v State Liq. Auth. (51 NY2d 761) and California Liq. Dealers v Midcal Aluminum (445 US 97) is misplaced because the statutes found to be invalid in those cases established a price maintenance scheme. Subdivision 3 of section 101-b, on the other hand, is a price-posting statute, which simply requires the dealer to file with the State, on a monthly basis, a list of the, prices the dealer himself has decided to charge for his products during that period with provision for a downward modification of that price. Subdivision 3 of section 101-b does not authorize anyone to determine retail prices for wine, nor does it bind other wholesalers as to the prices which they may charge their dealers.

Having concluded that there is no irreconcilable conflict between the State statute and the Sherman Act, we also find no merit to appellant’s argument that the State law is invalid because it might have an anticompetitive effect (Rice v Williams Co., 458 US 654, 659).

We also note that the authority does not contest the Appellate Division’s annulment of its findings with respect to count No. 3 and thus we do not reach or decide the question. The authority, however, should now reconsider the penalty in light of the dismissal of charge No. 3.

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

Order modified, with costs to the State Liquor Authority, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.


text:
    Jordan Kret, an Infant, by His Father and Natural Guardian, Arthur Kret, Appellant, v Brookdale Hospital Medical Center et al., Respondents.
    Submitted January 6, 1984;
    decided February 23, 1984

      APPEARANCES OF COUNSEL

      Morris J. Eisen, Steven Di Joseph and Edward P. Dunphy for appellant.

      George J. Kehayas and Leo Rothbard for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Seymour Boyers at the Appellate Division (93 AD2d 449). Moreover, a reading of the summation of plaintiff’s attorney to the jury in the prior trial leaves no doubt that the question decided by that jury was whether abruptio placentae occurred, that it was necessarily determined, and that it was determined against plaintiff after full and fair opportunity to litigate the issue.

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


text:
    Donna Napolitano, Respondent, v County of Suffolk et al., Appellants, et al., Defendants.
    Argued January 11, 1984;
    decided February 23, 1984

      APPEARANCES OF COUNSEL

      David Holmes and Edward J. Hart for appellants.

      Stanley N. Young and Judy Slater Hirshon for respondent.
   OPINION OF THE COURT

Memorandum.

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

Faced with a report of a loose horse near a major thoroughfare, the police either had to locate the horse, stop traffic on the road, or take other precautions to protect motorists. With only a few officers immediately available, there was insufficient personnel to pursue more than one course of action. They chose to conduct a search, but were unable to find the animal before the car in which plaintiff was a passenger struck it while moving at a high rate of speed.

Plaintiff seeks to recover for her injuries on the theory that the police carried out their duties negligently. The gravamen of her action, however, is that the police should have allocated their limited resources in a different manner. Her failure to establish the existence and breach of a “special duty” is fatal to her cause. Thus, the trial court ruled correctly when it vacated the verdict and dismissed plaintiff’s action (cf. De Long v County of Erie, 60 NY2d 296).

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

Order reversed, etc.


text:
    Marsha Klein, Appellant, v Mount Sinai Hospital, Defendant, and Reuben Hoppenstein, Respondent.
    Argued January 12, 1984;
    decided February 23, 1984
    APPEARANCES OF COUNSEL

      Norman Bard, Jerome Edelman and Beth J. Goldmacher for appellant.

      Patricia DAlvia, James B. Reich and Andrea M. Alonso for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant’s attorney sent plaintiff’s attorney a letter enclosing a proposed stipulation extending the time to file an answer or make a motion to dismiss. Plaintiff’s attorney signed the stipulation and returned it, after modifying it by striking the provision for making a motion to dismiss and by adding a provision admitting the propriety of service and jurisdiction. Thereafter, defendant’s attorney filed an answer which asserted as an affirmative defense that plaintiff had not obtained jurisdiction over the defendant. Plaintiff contends that the dismissal of her complaint on that basis was erroneous, because defendant, by relying upon the terms of the stipulation beneficial to him, should be deemed to have waived the defense of lack of personal jurisdiction, or, at the very least, should be estopped from asserting that defense.

We conclude that the purported agreement did not amount to a valid stipulation upon which plaintiff could rely to preclude defendant’s assertion of the lack of jurisdiction or extend his time to answer. A stipulation concerning any matter in an action is not binding unless it is made in open court between counsel, contained in a writing subscribed by the party or his attorney, or reduced to the form of an order and entered (CPLR 2104). The claimed stipulation is not binding upon defendant, because he did not sign it as modified. Accordingly, there was no bar to inclusion of the jurisdictional defense in the answer. Although defendant’s answer was untimely, plaintiff never moved for a default judgment on this basis.

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

Order affirmed, with costs, in a memorandum.

       Even if plaintiff had obtained a default judgment, it would have been open to defendant to move for vacatur on the ground of lack of personal jurisdiction.


text:
    Joseph Cullen, Individually and as Natural Guardian of Kevin Cullen, an Infant, Respondent, v Olins Leasing, Inc., et al., Respondents, and Jeanne Florsheim, Appellant.
    Submitted January 9, 1984;
    decided February 23, 1984
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that the appellant has died and no representative has been appointed although more than four months have elapsed since her death (CPLR 1021).

Judge Meyer taking no part.


text:
    David G. Goldstein et al., as Assignees of Lloyd H. Relin, as Trustee in Bankruptcy of Elgeet Optical Co., Inc., Appellants, v Olympus Optical Co., Ltd., et al., Respondents.
    Decided February 23, 1984
   Appeal taken as against all defendants except Ataka New.York (now known as Ataka America, Inc.), dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution as to these defendants.


text:
    The Great Atlantic Insurance Company, Appellant, v Estelle S. Roman, as Administratrix C. T. A. of the Estate of Anna Ellenberg, Deceased, et al., Respondents.
    Submitted February 13, 1984;
    decided February 23, 1984
   Motion to dismiss motion for leave to appeal treated as papers in opposition to the motion for leave to appeal; motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Thomas J. K., Appellant, v Sarah D., Respondent.
    Submitted February 13, 1984;
    decided February 23, 1984
    [See 60 NY2d 585.]
   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.


text:
    In the Matter of Owen Quinn, Respondent-Appellant, v Alfred E. Werner, as Commissioner of Aviation and Transportation for the Town of Islip, et al., Appellants-Respondents.
    Decided February 23, 1984
   Appeal and cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (see New York City Tr. Auth. v Lindner, 56 NY2d 713; Cohen and Karger, Powers of the New York Court of Appeals, § 43, subd [d], p 176).


text:
    Doris L. Sassower, Respondent, v Elizabeth Higbee, Appellant.
    Submitted February 13, 1984;
    decided February 23, 1984
   Motion to vacate the Court of Appeals January 12, 1984 order of dismissal, etc., denied. [See 61 NY2d 760.]


text:
    In the Matter of Crown Publishers, Inc., et al., Respondents, v James H. Tully, Jr., et al., Constituting the New York State Tax Commission, Appellant.
    Decided February 23, 1984
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (see Matter of Brooklyn Union Gas Co. v Joseph, 297 NY 469; Cohen and Karger, Powers of the New York Court of Appeals, § 12, p 52).


author: Chief Judge Cooke

text:
    Howard L. Jacobs, P. C., et al., Appellants, v Citibank, N. A., Respondent.
    Argued January 3, 1984;
    decided February 28, 1984

      APPEARANCES OF COUNSEL

      Lester L. Levy and Rosa Borenstein for appellants.

      Donald L. Cuneo, Henry Weisburg and Cole R. Capener for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs issued checks on their own accounts which were returned for insufficient funds and also deposited third-party checks to their accounts which were dishonored by the drawee bank because of insufficient funds of the drawer. Pursuant to agreements entered into by plaintiffs when they opened their accounts, charges were imposed upon plaintiffs by defendant to cover the cost of processing the overdrafts. It is these charges which plaintiffs challenge on this appeal.

Plaintiffs’ initial claim that the imposition of these charges constitutes a breach by defendant of the terms of the parties’ agreements because they exceed the actual cost of processing the overdrafts is without merit. When plaintiffs opened their accounts, each of them agreed to pay the charges specified for the services listed in the agreement, including the processing of overdrafts. Plaintiffs also agreed that those charges would be subject to change. Inasmuch as plaintiffs do not now contend that they were not notified of subsequent changes in the schedule of fees, they cannot be heard to say that defendant breached the agreements.

It is also claimed by plaintiffs that subdivision B, paragraph 4 of the account agreements, which vests defendant with discretion to determine what amount is necessary to compensate itself for services rendered, was violated by defendant because it charged more than was necessary to cover the cost of processing checks drawn on other banks and deposited by plaintiffs in their Citibank accounts which were later dishonored by the drawee bank. The short answer to this claim is that the account agreements very plainly authorize the defendant, not plaintiffs or the courts, to decide what amount of compensation is necessary. In the absence of some showing that the charges imposed were grossly disproportionate to processing costs usually incurred by banks in the community or otherwise imposed in bad faith, the defendant’s determination will not be disturbed. To grant the relief requested by plaintiffs would be to impose a limit on the amount Federally chartered banks can charge for processing overdrafts. This is a task more properly left to the Comptroller of the currency who has decided that “[a]ll charges to customers should be arrived at by each bank on a competitive basis”. (12 CFR 7.8000 [a].)

Plaintiffs next allege that the charges constitute penalties which are expressly prohibited by subdivision (1) of section 1-106 of the Uniform Commercial Code. In order to find that a penalty has been imposed, however, it must first be determined that the complaining party has breached a contract and that a fixed sum, which bears no reasonable relation to the nonbreacher’s actual loss, has been designated as the compensation which must be paid. (See Wirth & Hamid Fair Booking v Wirth, 265 NY 214, 223; see, also, Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516.) Inasmuch as there is no statutory or common-law duty imposed upon a banking customer to avoid writing or depositing overdraft checks — indeed the use of overdrafts is expressly contemplated by and provided for in subdivision (1) of section 4-401 of the Uniform Commercial Code, as well as the agreements between the parties — the use of such checks cannot be properly characterized as a breach. There being no breach committed by plaintiffs, it cannot be said that the fees imposed constitute “penal damages” within the purview of subdivision 1 of section 1-106 of the Uniform Commercial Code.

Plaintiffs’ claim that the agreements authorizing the subject charges are unconscionable is equally without merit. Plaintiffs have failed to show that they were deprived of a meaningful choice of banks with which they could do business and that the terms of these agreements with defendant were unreasonably favorable to the bank. In consequence of this, a claim of unconscionability cannot be sustained. (Matter of State of New York v Avco Fin. Serv., 50 NY2d 383, 389.)

Finally, we note that defendant, a Federally chartered bank, is not subject to the fee limitations imposed by the New York State Banking Board. (See Banking Law, § 108, subd 8, par [a]; § 2, subd 1.) As a result, the fact that defendant’s fees may have exceeded the limits imposed by the banking board is of no assistance to plaintiffs.

Chief Judge Cooke

(dissenting in part). I respectfully dissent.

The corporate plaintiff claims that defendant bank charged a fee in excess of the amount “necessary to compensate” it for processing checks returned by other banks. Defendant, which has exclusive control of the information that might establish plaintiff’s cause of action, does not itself know what is the cost per transaction for processing returned checks. Defendant should not be permitted to exploit this exclusivity and self-created ignorance to defeat plaintiff’s action (see Parkoff v General Tel. & Electronics Corp., 53 NY2d 412, 417-418). Consequently, summary judgment should not have been granted to defendant on this cause of action.

Although I agree with the majority that plaintiffs’ claim as to the fees assessed for overdrafts should be dismissed, I do so on slightly different grounds. Defendant argues that, because writing overdrafts is not proscribed by statute or common law, such conduct cannot be a breach of contract. Defendant relies on subdivision (1) of section 4-401 of the Uniform Commercial Code as expressly authorizing the payment of overdrafts.

Defendant’s position overstates the import of the statute. Section 4-401 merely expresses a bank’s power to act pursuant to the drawer’s implied promise to reimburse the drawee and pay an item that overdraws the account (see Uniform Commercial Code, § 4-401, comment 1). In establishing a banking relationship, a bank and its customer are empowered, with some restrictions, to vary the provisions of article 4 (Uniform Commercial Code, § 4-103, subd [1]; see, also, Uniform Commercial Code, § 1-102, subd [3]). Conceivably, then, the parties could provide that writing an overdraft is a breach of the contract embodied in the depositor agreement. If the parties also agreed that the breach would be subject to liquidated damages, the penal damages provision of section 1-106 would be applicable.

In the controversy here, the contractual language does not patently establish that overdrafts are breaches of the depositor agreement. No material issue of fact is raised as to the import or nature of the charge for overdrafts, and it was appropriate to grant defendant summary judgment on this cause of action.

Accordingly, the order of the Appellate Division should be modified by reinstating the second cause of action in plaintiffs’ complaint and, as so modified, affirmed.

Judges Jasen, Jones, Wachtler, Meyer and Kaye concur; Chief Judge Cooke dissents in part and votes to modify in an opinion; Judge Simons taking no part.

Order affirmed, with costs, in a memorandum.


author: Meyer, J.

text:
    In the Matter of Richard J. Lentlie, Appellant, v John C. Egan, as Commissioner of the New York State Office of General Services, et al., Respondents.
    Argued January 6, 1984;
    decided February 28, 1984

      APPEARANCES OF COUNSEL

      Jeffrey J. Sherrín for appellant.

      Robert Abrams, Attorney-General (William J. Kogan and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The affirmed finding of fact that respondents acted in good faith in terminating petitioner’s probationary employment on the basis of unsatisfactory performance is beyond our review. (Morgan Servs. v Lavan Corp., 59 NY2d 796.)

With regard to petitioner’s claim for a name-clearing hearing, “[o]nly if the [public] employer creates and disseminates a false and defamatory impression about the employee in connection with his termination is such a hearing required.” (Codd v Velger, 429 US 624, 628 [emphasis added]; see, also, Matter of Thomas v New York Temporary State Comm, on Regulation of Lobbying, 56 NY2d 656.) While the law of defamation requires but one communication to a single person (Ostrowe v Lee, 256 NY 36, 38), a discharged employee’s entitlement to a due process hearing to clear his or her name accrues only when there has been a “public disclosure” by the employer of stigmatizing reasons for the discharge (Bishop v Wood, 426 US 341, 348; see, also, Matter of Petix v Connelie, 47 NY2d 457), thereby foreclosing the employee’s freedom to take advantage of other employment opportunities (Board of Regents v Roth, 408 US 564, 573). Here, the mere fact that one officer within the agency in which petitioner was employed was familiar with some of the reasons for petitioner’s demotion, does not establish that such information was publicly disseminated by respondents (cf. Matter of Petix v Connelie, supra, at p 460), and, consequently, no hearing was required.

We have considered petitioner’s other claims and find them to be without merit.

Meyer, J.

(dissenting). Respectfully, I dissent.

The Trial Judge noted that the agency’s records included charges implying stubbornness, insubordination and obstinance entitling petitioner to a name-clearing hearing. Insubordination carries sufficient stigma to require such a hearing (Matter of Civil Serv. Employees Assn. v Wallach, 48 AD2d 923). The Appellate Division held, however, that the charge had not been “publicly disclosed” and on that basis the majority now affirms.

The petition, however, notes that in future job applications to State employers the record will be automatically available and that as to non-State employers petitioner will be faced with the dilemma that if he refuses to permit the record to be released he will not be hired and if he agrees that it be released he will not be hired because of the stigmatizing charges. Respondent does not deny that petitioner’s record will be made available to possible employers to whom petitioner may apply in the future.

To hold that such future dissemination is an insufficient basis for a hearing is, in my view, inconsistent with our decision in Matter of Petix v Connelie (47 NY2d 457) and with the practically unanimous authority of Federal and out-of-State cases and is not required by the Supreme Court’s decision in Codd v Velger (429 US 624).

In Petix we recognized that “an entry in a personnel record may in some circumstances so stigmatize an individual as to require a hearing even though not immediately disseminated” (47 NY2d, at pp 460-461). Codd v Velger (supra) decided no more than that “even were we to accept in its entirety the determination by the Court of Appeals that the creation and disclosure of the file report [that Velger had attempted suicide] amounted to stigmatization,” Velger was entitled to no hearing because he failed to deny the accuracy of the report (429 US, at pp 628-629). Thus, it cannot be said that the Supreme Court’s use of the phrase “creates and disseminates a false and defamatory impression” rules out future dissemination. Particularly is this so when viewed in relation to the Court of Appeals decision in Codd, which noted that the report placed Velger “‘between the devil and the deep blue sea’; he loses whatever his choice. Who would employ an applicant who refused to give authorization? Who would employ one who gives authorization but whose file suggests that he made an ‘attempt’ at suicide?” (Velger v Cawley, 525 F2d 334, 336).

In my view, the correct rule is that stated by the Supreme Judicial Court of Massachusetts in Stetson v Board of Selectmen (369 Mass 755, 762), which held the employee entitled to a hearing “if those charges have been or are likely to be disseminated either to members of the public or to prospective employers.” Similar decisions are to be found in Smith v Pima County Law Enforcement Council (113 Ariz 154, 158 [employee entitled to a hearing on charges which “will undoubtedly have considerable negative influence upon any agency to which he might apply for a law enforcement position in the future”]) and in a number of Federal cases (Ledford v Delancey, 612 F2d 883, 886 [“plaintiff does have a protected right with respect to the contents of his personnel file when that file may be the subject of inspection by prospective employers”]; Mazaleski v Treusdell, 562 F2d 701, 712 [“where the government * * * makes certain information available to prospective employers”]; Clark v Mann, 562 F2d 1104, 1116 [“where derogatory reasons for nonrenewal are incorporated into a record made available to a prospective employer or are publicly announced”]; Churchwell v United States, 545 F2d 59, 62 [“‘announced publicly or are incorporated into a record made available to prospective employers’ ”]; Cato v Collins, 539 F2d 656, 660 [same]; Buhr v Buffalo Public School Dist. No. 38, 509 F2d 1196, 1199 [same]; see McGhee v Draper, 564 F2d 902, 910, n 6 [“the danger of future disclosure damaging to employment possibilities * * * must be considered”]; Doe v United States Civ. Serv. Comm., 483 F Supp 539, 571 [“‘courts should relax the rigid publication requirement when the content of the allegedly false finding and the manner in which it is preserved creates a great potential for damaging disclosure’ ”]; Doe v Anker, 451 F Supp 241, 252, n 18, remanded without opn sub nom. Doe v Sandner, 614 F2d 1286, cert den 446 US 986 [same]; contra Green v Board of School Comrs., 716 F2d 1191,1193 [employee not entitled to relief where he can control the kind and amount of information released]).

Both logic and the great weight of authority dictate that petitioner be accorded the hearing he seeks in view of the nature of the charges, the agency’s policy with respect to disclosure and petitioner’s specific denial. I would, therefore, reverse and remand for a hearing.

Judges Jasen, Jones, Wachtler and Kaye concur; Judge Meyer dissents and votes to reverse in an opinion in which Chief Judge Cooke concurs; Judge Simons taking no part.

Order affirmed, with, costs, in a memorandum.

      . “He uses poor judgment and his organization needs immediate improvement. He doesn’t adhere to set procedures. He wants to do things his way since he feels the rules and regulations are senseless, because of this he can not be depended upon to do the simplest of tasks.”

        . So also does physical abusiveness (Matter of Jackson v Wallach, 48 AD2d 925) and here petitioner’s record also includes the notation that: “He has to learn to be more courtious [sic] in dealing with the public and especially with his co-workers. He has, on a couple of occasions, threatened 2 of his co-workers with bodily harm, in front of others.”

      . The present petitioner has specifically denied the charges made against him.


text:
    Sam Bellanca et al., Respondents, v Roger Gates et al., Constituting the Zoning Board of Appeals of the Town of Henrietta, Appellants, and Transmation, Inc., Intervenor-Appellant.
    Decided February 28, 1984

      APPEARANCES OF COUNSEL

      John C. Mendell, Deputy Town Attorney, for Roger Gates and others, appellants.

      Fred G. Aten, Jr., for Transmation, Inc., intervenorappellant.

      John J. Keigher for respondents.
   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 (97 AD2d 971).

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


text:
    The People of the State of New York, Appellant, v Lawrence Shapiro, Respondent.
    Argued January 5, 1984;
    decided February 28, 1984

      APPEARANCES OF COUNSEL

      Jonathan A. Weinstein, Village Attorney, for appellant.

      Ira J. Raab and Robert S. Reiff for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

In view of the fact that the village constabulary was not lawfully constituted (County of Nassau v Incorporated Vil. of Woodsburgh, 58 NY2d 996), the constable in this case had no authority to issue a uniform traffic information (CPL 100.10, subd 2, par [a]). Although an ordinary information may be filed by any person (CPL 100.10, subd 1), the instrument may not serve that function in this case because it did not contain, as the statute requires, “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges” (CPL 100.15, subd 3).

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

Order affirmed in a memorandum.


text:
    Just In-Materials Designs, Ltd., Appellant, v I.T.A.D. Associates, Inc., Respondent.
    Argued February 16, 1984;
    decided February 28, 1984

      APPEARANCES OF COUNSEL

      Jed R. Schlacter for appellant.

      Kenneth A. Schulman and Donald L. Kreindler for respondent.
   OPINION OF THE COURT

Memorandum.

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

This is not an instance of a transaction involving the exchange of different contract forms. Here Associated Textile Brokers Co., acting, as the Appellate Division properly concluded, as broker for both buyer and seller, served as intermediary for the negotiations between them and then sent to each a memorandum sale note evidencing the agreement between them, which included a broad clause for arbitration pursuant to the rules of the General Arbitration Council of the Textile Industry. Defendant seller then forwarded to plaintiff a contract form bearing the same date and the same contract number as the sale note, and evidencing the negotiation by the broker, which document contained a similar broad arbitration clause. Thereupon the seller commenced delivery of the goods as contemplated by the sale note.

Retention by the buyer of the sale note and the seller’s contract form and the subsequent acceptance of delivery of and payment for goods as contemplated by the sale note constituted ratification of the agreement between the parties made on their behalf by the broker, including the provision therein for arbitration, even though the latter provision had never been expressly discussed with either party (Matter of Huxley [Reiss & Bernhard], 294 NY 146). Moreover, acknowledgment of the agreement was thereafter confirmed by the buyer when, three months later, it addressed a letter to the seller identifying their contract by number and objecting to late delivery of one “portion of the above contract.”

In these circumstances the Appellate Division properly held that the buyer was obligated to proceed to arbitration of their controversy as demanded by the seller.

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

Order affirmed, with costs, in a memorandum.


text:
    Pipe Welding Supply Co., Inc., Appellant, v Haskell, Conner & Frost, Respondent.
    Decided February 28, 1984

      APPEARANCES OF COUNSEL

      James L. Burke for appellant.

      John F. O’Mara for respondent.
   OPINION OF THE COURT

Memorandum.

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

The record in this action, based on alleged failure by defendant architects in preparing budget estimates for a building designed by them for plaintiff to have employed the skill and knowledge ordinarily possessed and used by proficient architects in the area, is devoid of any proof of specific acts of negligence. Plaintiff relied entirely on testimony that the variance of cost estimates from bids was normally within a range of from 10 to 15%, the fact that bids received on the project in question were from 33 to 45% above defendant’s estimates, and the opinion of its expert witness (an architect in the area), predicated solely on the fact of the discrepancy with no familiarity with the plans of the project and no awareness of the manner in which defendants had arrived at its cost estimates, that defendant’s performance was a departure from good and accepted architectural practices in the region. The same witness also testified that “estimating is an inexact science at best”, that many factors have an influence on the compilation of bids, and that architects have no control over competitive bidding or the market and negotiating conditions.

On such a record it was error for the trial court to have submitted the case to the jury and to have instructed it, over objection by defendant, that it would find that defendant had deviated from the required professional standard if it found that the probable construction cost prepared by it “was so far out of line that it really means that they didn’t do their work properly”. The fact of the unexplained, substantial discrepancy between defendant’s projection of cost and the actual bids neither was proof of negligence by defendants nor did it permit an inference of negligence.

The position, taken by plaintiff in this court for the first time, that its action is one for breach of contract for failure to have provided a “probable construction cost” required by the contract, is an impermissible departure both from its pleadings and from the theory under which the case was tried and submitted to the jury. Moreover, there being an absence of proof in the record to support it, any claim for breach of contract could not serve to sustain the verdict returned in plaintiff’s favor.

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

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, in a memorandum.


text:
    The People of the State of New York, Appellant, v Nelson Warren, Also Known as Jerry Kitt, Respondent.
    Decided February 28, 1984

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney {Dean E. Manis of counsel), for appellant.

      J. Mitchell Rosenberg 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), appeal dismissed. Although the order of the Appellate Division recites that its reversal was “on the law”, a review of the opinion rendered by that court reveals that its disposition was predicated, at least in part, on factual determinations that the bank security chief who questioned defendant was acting under the direction of or in cooperation with the police and that defendant had not impliedly waived his right to remain silent. Inasmuch as the determination was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]), this appeal does not lie.


text:
    In the Matter of Woodcrest Fabrics, Inc., Appellant, v B & R Textile Corporation, Respondent.
    Argued January 4, 1984;
    decided February 28, 1984

      APPEARANCES OF COUNSEL

      Richard Weinberger for appellant.

      Philip Damashek for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Just In-Materials Designs v I.T.A.D. Assoc., 61 NY2d 882 [decided herewith]).

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


text:
    Michele Cwiakala, Appellant, v Alexander Lalone et al., Defendants, and Amica Mutual Insurance Company et al., Respondents.
    Decided February 28, 1984

      APPEARANCES OF COUNSEL

      George Abdella for appellant.

      Dianne Bresee Mayberger and Deborah H. Lancto for Arnica Mutual Insurance Company, respondent.

      James L. Pemberton 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 (97 AD2d 632).

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


text:
    John P., Appellant, v David Axelrod, as Commissioner of Health of the State of New York, Respondent.
    Decided February 28, 1984
    APPEARANCES OF COUNSEL

      Francis J. Offermann, Jr., for appellant.

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Commissioner of Health was authorized by subdivision 12 of section 230 of the Public Health Law to suspend petitioner summarily from the further practice of ophthalmology for a period of 60 days pending hearings in the related disciplinary matter (Matter of Wootan v Axelrod, 60 NY2d 353). We agree with the Appellate Division that the commissioner was justified in concluding, in fhe circumstances of this case, that petitioner’s practice posed an imminent danger to the public health. Nor was the commissioner precluded from making such a determination by reason of his failure to proceed expeditiously in a related proceeding, particularly as the delays in going forward were largely attributable to litigation commenced by petitioner.

We have considered petitioner’s remaining contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye 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:
    In the Matter of Robert Lee Realty Co., Respondent, v Village of Spring Valley, Appellant.
    Decided February 28, 1984

      APPEARANCES OF COUNSEL

      Michael A. Stone, Village Attorney, for appellant.

      David W. Silverman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to provide that the judgment of Supreme Court, Rockland County, insofar as it directed respondent to issue a special permit to petitioner be modified by the addition thereto of the words “subject to such reasonable conditions and safeguards as respondent may impose” and, as so modified, should be affirmed, with costs.

The classification of a particular use as a use permitted in a particular district subject to the granting of a special exception constitutes a legislative finding that if the special exception standards of the zoning ordinance are met the use accords with the general plan of the ordinance and will not adversely affect the neighborhood (Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028; Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238). The standards for issuance of such a permit may not, however, be so general or imprecise as to leave issuance of a permit to the unchecked discretion of the issuing authority (Matter of Tandem Holding Corp. v Board of Zoning Appeals, 43 NY2d 801), and denial of such a permit on the basis of traffic congestion may well be arbitrary ábsent evidence that the proposed special permit use would have a greater impact on traffic than would other uses unconditionally permitted (Matter of Oyster Bay Dev. Corp. v Town Bd., 88 AD2d 978; RPM Motors v Gulotta, 88 AD2d 658; Matter of Hobbs v Albanese, 70 AD2d 1049).

Petitioner, owner of a supermarket which was destroyed by fire, sought a special permit to replace the supermarket building with a building containing two retail stores and three mini-theatres with a total capacity of 700 seats. Under subdivision (k) of section 417 of the Code of Ordinances of the Village of Spring Valley a theatre is a special permit use, but section 418.01 deems such uses permitted uses subject to satisfaction of the standards set forth in section 418.04. The village board denied the permit without making specific findings, but in its answer to the petition relied upon subdivisions (a), (c) and (d) of section 418.04.

The board’s denial of the permit is not supported by substantial evidence in the record. The parking proposed to be provided conforms to the requirement of the ordinance and although there was evidence that congestion might occur in the exit areas when a theatre let out, there was nothing to suggest that all three of them would let out at the same time, no evidence that such congestion as might exist would have a greater impact than unconditionally permitted uses, and nothing to relate the possible congestion to “the appropriate and orderly development of the district” as required by subdivision (a), “noise, fumes, vibration or flashing lights” as required by subdivision (c), or “safety” as required by subdivision (d). Here, as in the Pleasant Valley case, it appears that “petitioner’s application was denied not because of any objection peculiar to the proposed development, but because of community pressure” (41 NY2d, at p 1029). It was, therefore, properly annulled but because the board is authorized by the ordinance to impose reasonable conditions, the direction to issue the permits should have been subject to such reasonable conditions as it finds necessary to impose (cf. id.).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to petitioner-respondent.


text:
    The People of the State of New York, Respondent, v Floyd J., Appellant.
    Decided February 28, 1984

      APPEARANCES OF COUNSEL

      Rose H. Sconiers, Joseph B. Mistrett and Charles D. Halvorsen for appellant.

      Richard J. Arcara, District Attorney {John J. DeFranks and Don I. Dally of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be modified to the extent of vacating the penalty assessment and, as so modified, affirmed.

Subdivision 1 of section 60.35 of the Penal Law mandates the imposition of a penalty assessment (now denominated a “mandatory surcharge”, L 1983, ch 15, § 2) upon a conviction for a felony, a misdemeanor, or a violation. CPL 720.35 (subd 1) states that a “youthful offender adjudication is not a judgment of conviction”. When the language of a statute is clear and unambiguous, the court is constrained to give effect to the plain meaning of the statute’s words (McKinney’s Cons Laws of NY, Book 1, Statutes, § 76; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340).

The People’s contention that the imposition of the penalty assessment was proper in this case because CPL 720.20 (subd 1) requires that a youthful offender adjudication be based on a conviction must be rejected. Subdivision 4 of section 60.35 of the Penal Law states that: “Any person who has paid a mandatory surcharge * * * based upon a conviction that is subsequently reversed * * * shall be entitled to a refund”. CPL 720.20 (subd 3) requires that “[u]pon determining that an eligible youth is a youthful offender, the court must direct that the conviction be deemed vacated and replaced by a youthful offender finding”. Inasmuch as a mandatory vacatur of conviction pursuant to CPL 720.20 (subd 3) has the practical and legal effect of a reversal, subdivision 4 of section 60.35 of the Penal Law precludes the imposition of a penalty assessment based on youthful offender adjudications (see People v Gruber, 118 Misc 2d 363).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Finest Investments, Appellant, v Security Trust Company of Rochester et al., Respondents. (Action No. 1.) Fedele V. Scutti, Respondent, v Finest Investments, Appellant. (Action No. 2.)
    Decided February 28, 1984

      APPEARANCES OF COUNSEL

      Edwin Robert Schulman for appellant.

      Warren B. Rosenbaum for respondents.
   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 opinion by Justice James H. Boomer at the Appellate Division (96 AD2d 227).

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


text:
    The People of the State of New York, Respondent, v Kenneth Clee, Appellant.
    Argued February 22, 1984;
    decided February 28, 1984
   Appeal dismissed upon the ground that the reversal at the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).


text:
    In the Matter of Saje Biller, Appellant, v Simcha Felsenburg et al., Respondents.
    Submitted December 19, 1983;
    decided February 28, 1984
   Motion for reargument of motion for leave to appeal granted. Motion for substitution of the personal representative for deceased petitioner granted. Upon reargument, motion for leave to appeal denied. Motion for a stay pending determination of the appeal dismissed as academic. [See 60 NY2d 559, 924.]


text:
    City of New York, Respondent, v 60 W. 119 Corp. et al., Appellants, et al., Defendants.
    Submitted January 30, 1984;
    decided February 28, 1984
   Motion for leave to appeal, pursuant to CPLR 5602 (subd [a], par 1, cl [ii]), dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that defendants have an appeal pending in the Appellate Division from the judgment here sought to be appealed (see Parker v Rogerson, 35 NY2d 751).


text:
    In the Matter of the Dissolution of Kemp & Beatley, Inc., Appellant. Seymour Gardstein et al., Respondents.
    Submitted February 13, 1984;
    decided February 28, 1984
   Motion to dismiss appeal denied.