text:
    Greystone Management Corp. et al., Appellants, v Conciliation and Appeals Board of the City of New York, Respondent.
    Argued March 20, 1984;
    decided May 1, 1984

      APPEARANCES OF COUNSEL

      Gary M. Rosenberg, Sherwin Belkin and Robert A. Jacobs for appellants.

      Ellis S. Franke for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs. It cannot be said that the Appellate Division abused its discretion in refusing to grant declaratory relief in this case (Bower & Gardner v Evans, 60 NY2d 781). Generally, a declaratory judgment action is not the proper vehicle to challenge an administrative procedure, where judicial review by way of article 78 proceeding is available.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Harold E. Williams, Appellant.
    Decided May 15, 1984

      APPEARANCES OF COUNSEL

      Peter A. Gorton for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, and a new trial, ordered.

Defendant did not request a missing witness charge as to the prosecution’s failure to call Deputy Shirley to testify and no reviewable issue is presented as to that matter. The prosecution, however, was not entitled to the charge, to which defendant objected, which expressly forbade the jury from drawing any negative inference from the prosecution’s failure to call Deputy Shirley. Thus, the trial court’s instruction on this issue was error.

Additionally, it was error on the part of the trial court, to which defendant took exception, to instruct the jury in effect that they could ignore the failure of the police to have administered the breathalyzer test in accordance with the rules and regulations of the Tioga County Sheriff’s Department (Vehicle and Traffic Law, § 1194).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, 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 Ronald T. Beasley, Respondent.
    Decided May 15, 1984

      APPEARANCES OF COUNSEL

      Sol Greenberg, District Attorney (George H. Barber of counsel), for appellant.

      E. Stewart Jones, Jr., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum of the Appellate Division (98 AD2d 946).

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


text:
    Facet Industries, Inc., Appellant, v Philip G. Wright, Individually and on Behalf of Certain Underwriters at Lloyd’s of London, Respondents.
    Argued March 19, 1984;
    decided May 15, 1984

      APPEARANCES OF COUNSEL

      Ted Trief, Joel Sankel and Barbara Oik for appellant.

      Stanley H. Solomon and Steven A. Peisak for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment entered January 10, 1983 by Supreme Court, New York County, should be reinstated.

At issue is the construction of the exclusion from coverage of the all-risk policy issued to plaintiff by defendants oh “(A) Loss, damage or expense caused by or resulting from sabotage, theft, conversion or other act or omission of a dishonest character (1) on the part of the Assured or his or their employees, or (2) on the part of any person to whom the property hereby insured may be delivered or entrusted by whomsoever for any purpose whatsoever” (emphasis supplied). The facts as stipulated by the parties establish that defendants issued to plaintiff a jewelers’ block policy containing the above-quoted exclusion, that plaintiff was contacted by one Sergio, a buyer for International Diamond & Gem of Los Angeles, California, that a letter from International confirmed that Sergio was “our buyer,” that after checking references plaintiff shipped to International on Sergio’s order loose diamonds worth $102,428.50, that postal receipts establish delivery of the diamonds to International, that the “diamonds were stolen by Paul Sergio,” and that proof of loss was filed by plaintiff and rejected by defendants on the basis of the above-quoted exclusion.

On motion and cross motion for summary judgment, Special Term granted judgment for plaintiff, reasoning that the inclusion of “employees” in clause (1) and the omission of employees from clause (2) excluded theft by an employee of a person to whom property was “delivered or entrusted.” The Appellate Division, two Justices dissenting, rejected Special Term’s reasoning and reversed “[i]n-asmuch as the clear purpose of the exclusion was to except from coverage property no longer in possession of the insured” and the language of the exclusion was broad enough to cover employees of a consignee from the insured, as well as the consignee itself (95 AD2d, at pp 270-271). The dissenters would have affirmed on the ground that it could not be inferred from the stipulated facts that International entrusted the diamonds to Sergio. We agree with the dissent.

What the policy excludes under clause (2) is loss resulting from a dishonest act “on the part of any person to whom the property hereby insured may be delivered or entrusted”. By its clear language, therefore, it excludes only acts of a person to whom property is delivered or entrusted. The burden of proving that the loss is within the exclusion of the policy is upon the insurer (International Paper Co. v Continental Cas. Co., 35 NY2d 322, 327). That the provision excludes delivery or entrustment “by whomsoever for any purpose whatsoever” does not relieve the insurer of the burden of establishing that the dishonest act was “on the part of” a person to whom the property was delivered or entrusted. Nor should it be inferred from the fact that Sergio was an employee of International that the diamonds were delivered or entrusted to him by International, in the face of the stipulated fact that they were stolen by Sergio, whether before or after or without entrustment to him we are not told.

That entrustment is to be determined by the state of mind of the insured rather than that of the recipient (Abrams v Great Amer. Ins. Co., 269 NY 90; David R. Balogh, Inc. v Pennsylvania Millers Mut. Fire Ins. Co., 307 F2d 894) is simply irrelevant absent evidence of delivery or entrustment to the person whose dishonest act is the cause of the loss. In Abrams the person entrusted by the insured was the thief; in Balogh the evidence established that the property was entrusted to the thief by the party to whom the insured entrusted it, thus bringing the situation within the “by whomsoever” language of the exclusion. More closely in point is Glick v Excess Ins. Co. (14 NY2d 635). There we held it not error to submit to the jury the question whether the consignee of insured’s jewelry had entrusted it to his employee, to whom he had given the key to the store and the combination of the safe, and who reentered the closed store during the nighttime with an accomplice and stole the jewelry. If those facts do not establish entrustment as a matter of law, the stipulation that Sergio was employed by International as its buyer is likewise insufficient to establish the delivery or entrustment to him upon which the exclusion depends.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order reversed, with costs, and judgment of Supreme Court, New York County, reinstated in a memorandum.


text:
    Village of Newark, Plaintiff, v Pepco Contractors, Inc., et al., Defendants. Pepco Contractors, Inc., et al., Third-Party Plaintiffs-Appellants, v United States Fidelity & Guaranty Company, Third-Party Defendant-Respondent.
    Decided May 15, 1984

      APPEARANCES OF COUNSEL

      Karl S. Essler for appellants.

      Samuel G. Brundage 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 (99 AD2d 661).

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


text:
    The People of the State of New York, Appellant, v Lance Vivenzio, Respondent.
    Argued March 28, 1984;
    decided May 15, 1984
    APPEARANCES OF COUNSEL

      Paul Carbonaro, District Attorney (.Dennis Sedor and Allan J. Bentkofsky of counsel), for appellant.

      Douglas P. Bates for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to the Appellate Division, Fourth Department, for determination of the facts in accordance with CPL 470.40 (subd 2, par [b]) and 470.25 (subd 2, par [d]) and for consideration of the other issues not reached by that court.

As the dissenters below held (see 96 AD2d 728) there could be a finding on this record that defendant knowingly and intelligently waived his right to counsel and that County Court could properly permit him to proceed pro se (see Faretta v California, 422 US 806). Regardless of his lack of expertise and the rashness of his choice, defendant could choose to waive counsel if he did so knowingly and voluntarily (see Faretta v California, supra; People v Landy, 59 NY2d 369, 377; People v McIntyre, 36 NY2d 10, 17). A criminal defendant is entitled to be master of his own fate and “respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and if he makes the choice ‘with eyes open’ ” (United States ex rel. Maldonado v Denno, 348 F2d 12, 15). Once defendant elected to waive counsel, the only obligation of the court was to insure that he was aware of the dangers and disadvantages of self-representation before allowing him to proceed (Faretta v California, supra, p 835; People v McIntyre, supra).

There can be little doubt that the court did so here. It determined that defendant was an adult who had been involved in the criminal process before, that he had a lawyer with whom he had discussed his decision, who advised against it and who was available as standby counsel throughout the trial. The court warned defendant forcefully that he did not have the training or knowledge to defend himself, that others who had done so had been unsuccessful and that if he insisted upon appearing pro se he would be held to the same standards of procedure as would an attorney. Defendant nevertheless insisted on proceeding pro se and on this record there was a sufficient showing that his decision was knowing and voluntary.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.


text:
    Jack LaLanne Biltmore Health Spa, Inc., Appellant, v Builtland Partners et al., Respondents.
    Submitted May 7, 1984;
    decided May 15, 1984
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 7564).


text:
    June Nemet, Appellant, v Thomas Nemet, Respondent.
    Decided May 15, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not a party aggrieved (CPLR 5511) and upon the further ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Town of Tonawanda et al., Respondents, v Merilyn H. Ayler et al., Appellants.
    Decided May 15, 1984
   Appeals transferred to the Appellate Division, Fourth Department, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    The People of the State of New York ex rel. Edward A. Parker, Appellant, v William A. Hasenauer, as Sheriff of Oneida County, Respondent.
    Submitted May 4, 1984;
    decided May 17, 1984

      APPEARANCES OF COUNSEL

      Paul R. Shanahan and Frank Policelli for appellant.

      Barry M. Donalty, District Attorney (.Michael E. Daley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The denial of bail in this case was based upon the determination that defendant, if released on bail, would be likely to flee the jurisdiction. This determination was reached after consideration of the nature of the offense, the unusually large amount of drugs and money involved, the probability of conviction and the possible severity of sentence. Inasmuch as said denial is supported by the record, it is an exercise of discretion resting on a rational basis and thus beyond correction in habeas corpus. (People ex rel. Parone v Phimister, 29 NY2d 580).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, without costs, in a memorandum.


text:
    John F. Innes, III, Respondent, v County of Genesee et al., Appellants.
    Decided May 17, 1984

      APPEARANCES OF COUNSEL

      Paul J. Yesawich, III, for appellants.

      Judry L. Subar 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. We find no error of law in the determination of the Appellate Division.

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


text:
    Doris L. Sassower et al., Appellants, v Ernest L. Signorelli, Respondent, et al., Defendants.
    Decided May 17, 1984

      APPEARANCES OF COUNSEL

      George Sassower for appellants.

      Robert Abrams, Attorney-General (Peter H. Schiff and Stephen M. Jacoby 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 (100 AD2d 509).

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


author: Meyer, J.

text:
    In the Matter of Alfreda W. Slominski, as Comptroller of the County of Erie, Appellant-Respondent, v Edward J. Rutkowski, as County Executive of Erie County, et al., Respondents-Appellants.
    Argued March 28, 1984;
    decided May 17, 1984

      APPEARANCES OF COUNSEL

      Gerald Bouvier and Dennis J. Ciotuszynski for appellant-respondent.

      Eugene F. Pigott, Jr., County Attorney {Roger D. Avent, J. R. Drexelius, Jr.,JustynE. Miller and AlanP. Gerstman of counsel), for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

In this proceeding, converted by the Appellate Division to an action for a declaratory judgment, the order of that court should be modified, without costs, to declare valid subdivision e of section 3.09 of the Erie County Administrative Code (Lanza v Wagner, 11 NY2d 317, 334) and, as so modified, affirmed for reasons stated in the opinion by Justice Stewart F. Hancock, Jr., at the Appellate Division (91 AD2d 202). However, we distinguish the principal case relied upon by petitioner, Matter of Henry v Noto (50 NY2d 816) on different grounds.

In Matter of Henry v Noto (supra) the County Charter granted the District Attorney “the power to hire assistants * * * as the county legislature may allow in the budget.” He attempted to appoint to two approved vacancies but his appointments were subject to review pursuant to a resolution requiring prior approval of the need to fill vacancies by the County Executive and the presiding officer of the legislature. We held that the budget adopted by the county legislature defined the extent of the District Attorney’s power to appoint. The positions could not be abolished after approval in the budget by resolution which transferred that , power to the County Executive and the presiding officer of the county legislature. The resolution attempting to do so was invalid because it was legislation of lesser dignity which unlawfully encroached on the powers granted the legislature and the District Attorney in the County Charter.

The Erie County Administrative Code granted petitioner the power to appoint deputies “within the appropriations provided therefor” (Erie County Administrative Code, § 12.03). The legislature authorized positions by appropriations contained in the 1982 budget, a resolution. That authorization was subject to existing subdivision e of section 3.09 of the Administrative Code, a local law, which provides that the County Executive shall certify to the county legislature the necessity for filling vacancies before an appointment may be made. The resolution appropriating money for the positions could not override the provisions of the prior local law, legislation of greater dignity (see Matter of Gallagher v Regan, 42 NY2d 230, 234), and the local law did not contravene the provisions of the County Charter.

Insofar as the dissent maintains that petitioner’s powers have been unlawfully curtailed, we would note that the only power the County Charter gives her is the power to fill positions in her office as those positions are approved. That is unchanged. She, and no one else, may appoint whomever she chooses to the vacancies (cf. Morin v Foster, 45 NY2d 287; Matter of McCabe v Voorhis, 243 NY 401, 409-410; Matter of Fogarty v Warden, 191 Misc 916, 920, affd 273 App Div 910, affd 297 NY 963; Matter of Yevchak v Raymond, 63 AD2d 197; Matter of Doherty v Sanvidge, 58 Misc 2d 347; Neils v City of Yonkers, 38 Misc 2d 691). The Charter does not guarantee her any specific number of positions, however; they must be approved first by the legislature. Subdivision e of section 3.09 did not change that. It merely provided that if an approved position became vacant the County Executive was to certify to the legislature the necessity for refilling it before the appointment could be made. That was consistent with the County Executive’s responsibilities as “chief executive officer and administrative head of the county government” (Erie County Charter, § 302, subd a) and as “chief budget officer of the county” (Erie County Charter, § 302, subd d).

Accordingly, subdivision e of section 3.09 of the Administrative Code was not subject to a mandatory referendum as legislation curtailing the power of an elected official (see Erie County Charter, § 2002; cf. Municipal Home Rule Law, § 23, subd 2, par f).

Meyer, J.

(dissenting). Subdivision 2 of section 23 of the Municipal Home Rule Law requires that “a local law shall be subject to mandatory referendum if it * * * f. Abolishes, transfers or curtails any power of an elective officer.” Section 2002 of the Erie County Charter likewise provides that, “Any local law which would * * * change the powers of an elective County officer * * * shall be subject to mandatory referendum.” There is no question that the Comptroller of Erie County is an elective officer and that subdivision e of section 3.09 of the Erie County Administrative Code, which proscribes the filling of a vacant position in the Comptroller’s office for which there exists an appropriation “until the county executive has certified in writing to the county legislature the necessity for filling the same” has never been submitted to a referendum. Under both the commonly accepted meaning of the English language and prior holdings of this court, the latter provision “curtails” and, to the extent that it curtails, “changes” the Comptroller’s powers and is, therefore, invalid until approved by the voters. I, therefore, dissent.

Webster’s Third New International Dictionary defines “change” as “to make different in somé particular but short of conversion into something else: alter; modify” and “curtail” as “to diminish * * * abridge, reduce.” The Appellate Division decision on which the majority relies states that “there is no direct interference with the right of the comptroller to appoint persons to positions in her office” (91 AD2d, at p 210) and that the Comptroller’s power to appoint persons to positions approved for her office does “not, by implication, include any guarantee that the positions will remain filled throughout the fiscal year” (91 AD2d, at p 211), but never meets, except by a conclu-sory statement, the question whether there is a change or curtailment of the Comptroller’s powers.

That there is appears self-evident from the above definitions for the power to appoint persons to positions for which funds have been budgeted is different, is altered, is modified, is diminished, abridged and reduced, when it is subjected to the County Executive’s prior certification that the filling of the position is necessary. The fact that the County Executive has only the power to certify the need and the Comptroller retains the power to appoint does not establish that the latter’s power to appoint is not curtailed by subjecting it to the former’s power to certify. Indeed, Matter of Blyn v Bartlett (39 NY2d 349) clearly so recognized when it called attention to the fact that “[t]his is not a case, however, where the legislative body acting unilaterally has attempted to nullify court positions or programs by refusing to fund them” (39 NY2d, at p 358). There is no difference between refusing to fund and refusing to permit appropriated funds to be expended for the purpose for which appropriated. Nor is it relevant that the County Executive is given that power only as to a vacancy and not as to an original appointment, and that subdivision e of section 3.09 may apply “only for the duration of a given fiscal year,” as the Appellate Division held (91 AD2d, at p 211). It makes no difference whether the change or curtailment is short-lived or permanent, if it constitutes a change or curtailment and has not been approved by the voters.

That it does is the teaching of both Morin v Foster (45 NY2d 287) and Matter of Fogarty v Warden (297 NY 963, affg without opn 273 App Div 910, affg without opn 191 Misc 916). Although those cases concerned the permissive referendum requirements of subdivision 4 of section 34 of the Municipal Home Rule Law, the operative language (“abolishes, curtails or transfers * * * any power of an elective county officer”) is, except for the order in which the words appear, identical. In Morin the County Charter provided for appointment of a county manager to a four-year term and thus empowered the legislature to bind its successors. We held that a local law which abolished the four-year term and made the manager subject to removal at the pleasure of the legislature and regardless of cause curtailed the power of the legislature to bind its successor and was, therefore, invalid absent a provision for permissive referendum, notwithstanding that the power to remove the manager at will could be viewed as enhancing the power of the legislators. Fogarty presented the reverse situation of a city manager who, under the Newburgh City Charter, held office “during the pleasure of the council” and a local law making the manager removable only after hearing and for cause. We affirmed the holding of Special Term that the latter provision, which limited the council’s power of removal, curtailed its powers. Those holdings, though distinguishable on their facts, establish that any change, even one arguably an enhancement, and any diminishment, of the powers of the Comptroller must be submitted to referendum. To suggest that section 3.09 does not constitute a change or curtailment because the power still exists (even though it cannot be exercised, despite the availability of funds, without the certification of the County Executive) is to render meaningless the referendum requirement of section 23 (subd 2, par f) of the Municipal Home Rule Law.

While the foregoing is a sufficient basis for reversal, it bears noting that respondents’ argument that both the Charter and the Administrative Code are local laws requires no different conclusion. Matter of Henry v Noto (50 NY2d 816, 818), it is true, recognized that “power properly may be limited by legislative action of equal or greater dignity than that sought to be altered,” but the Charter and the Code, though both local laws, are not of equal dignity. The Charter is the higher law, having been approved by referendum on November 3,1959. The Code has never been submitted to the voters.

Chief Judge Cooke and Judges Jones, Wachtler, Si-mons and Kaye concur; Judge Meyer dissents and votes to modify in accordance with his dissenting opinion in which Judge Jasen concurs.

Order modified, without costs, to declare valid subdivision e of section 3.09 of the Erie County Administrative Code and, as so modified, affirmed in a memorandum.


author: Wachtler, J.

text:
    James J. Mead, Appellant, v Karen E. Bloom et al., Defendants, and Hallman-Adkins Chevrolet, Respondent.
    Argued March 29, 1984;
    decided May 17, 1984

      APPEARANCES OF COUNSEL

      Richard T. Farrell, Paul William Beltz and Anne M. Beltz for appellant.

      Dale Thuillez and Joseph DeMarie for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice James H. Boomer at the Appellate Division (94 AD2d 423).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Meyer, Simons and Kaye. Judge Wachtler dissents and votes to reverse in an opinion.

Wachtler, J.

(dissenting). I disagree with the majority’s holding that plaintiff’s verdict must be reduced in accordance with section 15-108 of the General Obligations Law. Inasmuch as the settling defendant’s relationship to this litigation is one of vicarious liability only, the statute, which sets forth the consequences of a settlement by one of two or more joint tort-feasors, is inapplicable.

Plaintiff brought this action for personal injuries suffered in an automobile collision. Joined as defendants and treated as one unit for purposes of liability were the driver, Karen Bloom, and the owner, Maurice Bloom, of the car that struck plaintiff’s, and MCA Distributing Corporation (MCA), upon whose business Karen Bloom was alleged to be engaged when the accident occurred. Hallman-Adkins Chevrolet, Inc., was also named as defendant, on the theory that it had negligently repaired the brakes on the Bloom automobile. A claim against General Motors Corporation, alleging that the automobile was manufactured and distributed with defective brakes, was settled before trial.

As to the defendants against whom plaintiff went to trial, theories of fault were pleaded only against Karen Bloom and Hallman-Adkins, based upon negligent operation and negligent repair of the car, respectively. Plaintiff sought to impose liability upon Maurice Bloom solely as the owner of the car and upon MCA solely as Karen Bloom’s principal. Hallman-Adkins interposed cross claims seeking contribution from all three defendants. Because Maurice Bloom and MCA were participants in the lawsuit solely as parties potentially vicariously liable for the negligence of Karen Bloom, the trial court instructed the jury to consider these three defendants as one “unit” for purposes of apportioning liability, and to treat Hallman-Adkins as a separate “unit”. Before the jury rendered its verdict, MCA settled with the plaintiff for $40,000.

The jury returned a verdict against the defendants in the amount of $500,000 apportioning 75% of the liability to the “unit” comprised of the Blooms and MCA and the remaining 25% to Hallman-Adkins. The parties agreed to a reduction of the verdict by the amount of General Motors Corporation’s settlement with plaintiff. Thereafter, Hallman-Adkins sought a further reduction in the verdict by reason of MCA’s settlement. It was urged that, pursuant to section 15-108 of the General Obligations Law, MCA’s settlement with plaintiff required a reduction in the verdict by either the amount of the settlement or the amount of MCA’s equitable share of the damages, whichever is greater. Believing MCA’s equitable share of the damages to be 75%, Hallman-Adkins asserted that plaintiff’s verdict had to be reduced by a corresponding amount. The trial court rejected this argument and instead reduced the verdict only by $40,000, the amount of MCA’s settlement.

The Appellate Division reversed, holding that the verdict must be reduced in accordance with Hallman-Adkins’ request. In an opinion now endorsed by a majority of this court, the Appellate Division begins by recognizing that section 15-108 of the General Obligations Law is not applicable to indemnification claims (citing Riviello v Waldron, 47 NY2d 297). Thus, it would seem that the consequences of the settlement by MCA (a party whose only liability in this lawsuit is vicarious) with plaintiff should not be dictated by the statute. But the Appellate Division comes to a contrary conclusion, holding section 15-108 applicable in this case because of the presence of another tort-feasor’s right to contribution against the settling defendant. Plaintiff’s verdict must be reduced by MCA’s “equitable share of the damages”, according to that court, because “plaintiff has released MCA and has thereby deprived Hallman-Adkins of its right to contribution from MCA” (94 AD2d, at p 425). The court also found that MCA was treated as part of the unit consisting of itself and the Blooms and the unit was found liable for 75% of the damages, and that the same figure should represent MCA’s “equitable share of the damages”.

I disagree with the approach taken by the Appellate Division, and now by this court. Nothing in this situation warrants a departure from our clear holding in Riviello v Waldron (supra) that section 15-108 applies only to a settlement by one of two or more joint tort-feasors. Because MCA is not a joint tort-feasor, the effect of its settlement with plaintiff is to reduce the verdict by the settlement amount only. Moreover, any perceived unfairness in the effect of plaintiff’s release of MCA upon Hallman-Adkins’ contribution rights can be remedied by recognizing that Hallman-Adkins’ rights in this regard were not diminished by an agreement in which it took no part.

Following this court’s decision in Dole v Dow Chem. Co. (30 NY2d 143), which allowed joint, actively negligent tort-feasors to seek contribution among themselves in proportion to their respective degrees of fault, questions arose regarding the extent of those contribution rights when one joint tort-feasor entered into a settlement with the plaintiff. Little case law developed concerning these rights in the brief interval before the legislative response, but the law was clearly moving in the direction of holding contribution rights to be unaffected by the release of one tort-feasor. Thus, it was held that the release of one tort-feasor did not bar the remaining tort-feasors from asserting a cross claim against the settling tort-feasor for apportionment (Blass v Hennessey, 44 AD2d 405) and that the settling tort-feasor had not waived the right to seek apportionment from other tort-feasors (Hain v Hewlett Arcade, 40 AD2d 991). These holdings appeared to be the only appropriate response, given the policy, as established by Dole, that liability should be shared by joint tort-feasors in accordance with their respective degrees of fault. Nevertheless, such holdings created a strong disincentive on the part of tort-feasors to settle with the injured party, since the settler’s position was not much improved after a settlement. The immediate legislative response was the enactment of section 15-108 of the General Obligations Law, the purpose of which is to encourage settlements by joint tort-feasors by affording a measure of finality to the settling tort-feasor’s release from the litigation (Rock v Reed-Prentice Div., 39 NY2d 34, 40-41; Franzek v Calspan Corp., 78 AD2d 134, 140-141; Mielcarek v Knights, 50 AD2d 122, 126; McLaughlin, Practice Commentary, McKinney’s Cons Laws of NY, Book 23A, General Obligations Law, § 15-108, pp 717-718).

Subdivision (a) of section 15-108 provides that a release given to one of two or more persons liable in tort for the same injury reduces the claim of the injured person against the other tort-feasors to the extent of the amount stipulated in the release, the amount of consideration paid for it, or the amount of the released tort-feasor’s equitable share of the damages, whichever is greatest. Subdivision (b) then eliminates the contribution rights of other tort-feasors against the released tort-feasor, while subdivision (c) eliminates any contribution rights the released tort-feasor may have against the others. Thus, in a situation involving multiple wrongdoers, the effect of a settlement on the rights of the parties is now clearly defined by statute. The question that subsequently arose was whether the statute is equally applicable when an indemnification claim is involved.

In Riviello v Waldron (47 NY2d 297, supra), a bar employee injured a patron, allegedly while acting within the scope of his employment. Prior to trial, the employee settled with the injured party for $25,000. Plaintiff proceeded to trial against the tort-feasor’s employer and recovered judgment in the amount of $200,000. The employer then argued that, pursuant to section 15-108, the verdict had to be reduced by the employee’s “equitable share of the damages”, which was 100% given that the employer’s liability was wholly derivative in nature. This court held, however, that “section 15-108 is meant to be read in conjunction with the contribution rights set forth in article 14 [of the CPLR]” (id., at p 306) and therefore is not applicable where a claim of indemnification is concerned. Support for this conclusion was also found in the purpose of section 15-108, which was to clarify the effect of a settlement upon Dole contribution rights among joint tort-fea-sors.

Not resolved in Riviello was the further issue of whether the employer, having been held liable to the injured party on the basis of the employee’s negligence, could thereafter recover those damages from the settling employee. Several Appellate Division cases had resolved this issue in favor of allowing the claim over (Felice v St. Agnes Hosp., 65 AD2d 388; Heinsohn v Putnam Community Hosp., 65 AD2d 767). The possibility that such a claim would be permitted, with its resulting lack of incentive on the part of the primary wrongdoer to settle, has been the focus of criticism of the Riviello decision (Siegel, NY Prac, § 176, 1981-1982 Pocket Part, at p 53; Recent Development, 44 Alb L Rev 719, 728-729). Despite the disincentive to settlement involved in our holding in Riviello, we did not retreat from our restrictive view of the statute’s applicability.

In McDermott v City of New York (50 NY2d 211, 220), we reaffirmed the Riviello rule of inapplicability of section 15-108 to indemnity claims, holding that “one who settles a tort action against him may continue to pursue a cause of action for indemnification, unencumbered by section 15-108”. Although McDermott involved an indemnity claim by a settling party who had been held vicariously liable to the injured party, there would appear to be no basis for failing to afford the same relief to a nonsettling party held vicariously liable, such as the employer in Riviello.

In the present case, if the only defendants were the Blooms and MCA, it is clear that section 15-108 would not affect the result of the release of one of the defendants. Thus, if the primary wrongdoer, Karen Bloom, had settled, plaintiff would still be entitled to pursue those parties held derivatively liable for Karen’s negligence, except to the extent that damages had been reduced by the settlement amount. Nor would the settlement limit the rights of the other defendants to proceed against Karen for indemnity. Similarly, a settlement by one of the derivatively liable defendants would not preclude the settling defendant’s pursuit of an indemnity claim against Karen, and plaintiff’s rights against the nonsettling defendants would remain intact.

The addition of another actively negligent defendant (Hallman-Adkins) to this situation creates a somewhat more complex problem in defining the results of a release of one of the defendants, but does not justify or require a departure from the rule of section 15-108’s inapplicability to indemnity claims. As to the two actual wrongdoers, Karen Bloom and Hallman-Adkins, the statute is clearly applicable. If one of these joint tort-feasors had settled with plaintiff, the other tort-feasor would have been entitled to reduction of the verdict by the greater of amount or the settling tort-feasor’s equitable share of the damages. Where the release is obtained by a vicariously liable party, however, we should continue to interpret section 15-108 as inapplicable to define the rights of the parties following settlement. Thus, in the present case, MCA’s release is not governed by section 15-108, and the verdict should be reduced only by the settlement amount.

The sole reason offered by the Appellate Division and a majority of this court for a contrary conclusion is the perceived loss of Hallman-Adkins’ contribution rights against MCA. Clearly, Hallman-Adkins’ cross claims seeking contribution from MCA assert valid claims. Those claims were not lost, however, when plaintiff released MCA from further liability to him. Indeed, in the joint tort-feasor situation uncomplicated by the presence of indemnity claims, the thrust of the law prior to section 15-108 was that a settling tort-feasor was not thereby immunized from the contribution claims of other tort-feasors; this was the impetus for enactment of the statute. Moreover, there is no reason in law or logic for holding otherwise in the present context. Absent a statutory directive to the contrary, there can be no question that a plaintiff’s release of one defendant cannot operate to defeat the rights of others who are not parties to the release agreement. Accordingly, Hallman-Adkins’ contribution rights against MCA are unaffected by the release.

I recognize that this approach involves a disincentive to settlement by a party whose liability is derivative or by a party against whom an indemnity claim might be made. But that disincentive was created by our holdings in Rivi-ello and McDermott concerning the statute’s applicability. MCA, by its settlement, obtained only a release from plaintiff’s claims against it; as the employee in Riviello, it did not thereby gain a release from the claims of other parties against it. Equally compelling is the reliance of the litigants, in effectuating settlements, upon our prior broad statements in this complex area. It is unfair to now disavow those holdings without an articulable rationale and to recognize a distinction which I believe could not have been anticipated. Any change in the breadth of section 15-108 should, in my view, be comprehensively addressed by the Legislature.

Order affirmed, etc.

       No issue concerning the amount or method of so reducing the verdict to account for the General Motors settlement is raised by the parties.


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    In the Matter of Ronald Fox, Respondent, v John P. Finnerty, as Sheriff of Suffolk County, Appellant.
    Decided May 17, 1984

      APPEARANCES OF COUNSEL

      Martin Bradley Ashare, County Attorney CMarion T. McNulty of counsel), for appellant.

      Robert D. MacLachlan, Jr., 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), determination appealed from and order of the Appellate Division brought up for review reversed, with costs, and the original determination of appellant reinstated. The punishment was not so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222, 237).

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


text:
    The People of the State of New York, Respondent, v Joseph Saglimbeni, Appellant.
    Argued May 10, 1984;
    decided May 17, 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:
    The People of the State of New York, Respondent, v Michael Aiello, Appellant.
    Submitted April 30, 1984;
    decided May 17, 1984
   Motion to vacate the Court of Appeals order of dismissal dated January 31, 1984 denied. [See 61 NY2d 760.]


text:
    In the Matter of Dorothy Bensen et al., Respondents, v Town of Islip, Appellant.
    Decided May 17, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification at the Appellate Division is not in a “respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


text:
    City of New York, Respondent, v 60 W. 119 Corp. et al., Appellants, et al., Defendants.
    Submitted April 16, 1984;
    decided May 17, 1984
   Motion for reargument granted and, upon reargument, this court’s decision and order of February 28, 1984 are vacated and the following substituted therefor: “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), and upon the further ground that defendants’ motion for leave to appeal is untimely because the prior motion for leave to appeal addressed to the Appellate Division was not made within 30 days after service with notice of entry of the judgment sought to be appealed.” [See 61 NY2d 900.]


text:
    In the Matter of the Application of Michael Ford, as Director of Manhattan Psychiatric Center, Respondent, v Civil Service Employees Association, Inc., et al., Appellants.
    Submitted May 7, 1984;
    decided May 17, 1984

      APPEARANCES OF COUNSEL

      Michael J. Smith for appellants.

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

Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the arbitration award sought to be appealed from is not a final determination of an administrative agency within the meaning of CPLR 5602 (subd [a], par 1, cl [ii]).


text:
    In the Matter of Jane PP, Respondent, v Paul QQ, Appellant.
    Submitted May 7, 1984;
    decided May 17, 1984
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie from the unanimous Appellate Division order of affir-mance. Motion for leave to appeal granted.


text:
    Argued May 3, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Rubin Sterngass, appellant pro se.

      Jack Sterngass for Development Enterprises Inc., appellant.

      lian S. Schoenberger, County Attorney (S. Martin Gordon of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (96 AD2d 925).

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


text:
    In the Matter of William G. Mayville, as Justice of the Fort Covington Town Court, Franklin County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Decided June 5, 1984
    Proceeding brought pursuant to section 22 of article VI of the New York Constitution and subdivision 7 of section 44 of the Judiciary Law for review of Commission determination dismissed, without costs, on the court’s own motion, upon the ground that the proceeding has abated by reason of petitioner’s death; determination of the Commission dated March 4, 1984 vacated and the Commission’s complaint dismissed.

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


text:
    Country Wide Insurance Company, Appellant, v Vorazit Osathanugrah, Defendant, and Sunthorn Srihongse, Respondent.
    Argued April 30, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Bernard Samuels and Eric M. Alderman for appellant.

      Andrea M. Alonso and Patricia DAlvia for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Arnold L. Fein at the Appellate Division (94 AD2d 513).

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


text:
    The People of the State of New York, Respondent, v Russell Ward, Appellant.
    Submitted April 30, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Wayne P. Smith for appellant.

      JohnB. Poersch, District Attorney (Alfred D. Chapleau of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s conviction vacated, and the case remitted for further proceedings on the indictment.

The principal evidence introduced at the trial was a portion of a tape recording of an extended conversation in the course of which defendant admitted his participation in the burglary of a residence in the Town of Niskayuna of which he was charged and convicted. The trial court properly held that the recording was not in itself suppressible, inasmuch as it had been made with the consent of a cooperating informer who was a party to the conversation.

Defendant’s inculpatory statements, which counsel conceded at the trial and on this appeal were admissible if the objection to the recording in its entirety were not sustained, appeared on page 8 of the transcript. The preceding seven pages comprised an extended conversation in which defendant disclosed and made detailed plans with cohorts for an imminent, armed robbery of a Price Chopper market, including a car theft and the possible shooting of store personnel. Over defense counsel’s objection and request that the tape recording be redacted to delete all but the inculpatory statements pertinent to the Niskayuna burglary, the trial court ruled that the earlier portions of the recording were admissible under People v Vails (43 NY2d 364) as “inexorably involved” with the segment in which defendant admitted his participation in the crime charged.

This ruling was error. In Vails the court found that the challenged evidence of defendant’s prior criminal conduct was “intrinsic” to the criminal transaction for which he was being tried and provided “highly probative evidence relating directly to the crime charged” — in sum was “inextricably interwoven with the crime charged in the indictment” (43 NY2d, at p 368). No such relationship exists in the present case between defendant’s introductory conversation with reference to the projected Price Chopper robbery and other criminal conduct and the Niskayuna burglary. Although, as the prosecutor argued, receipt of defendant’s statements with respect to the Price Chopper robbery might have assisted the jury in evaluating the probative worth of defendant’s admissions as to the Niska-yuna burglary to the extent of showing the contextual setting in which such admissions were made, such testimony was not necessary to a full comprehension of the inculpatory statements made by defendant. It is critical that the introductory Price Chopper statements were highly inflammatory and prejudicial to defendant. That prejudice far outweighed the minimal legitimate advantage which would accrue to the prosecution from disclosure to the jury of defendant’s entire conversation.

We have examined defendant’s remaining contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order reversed, conviction vacated and case remitted to Schenectady County Court for further proceedings on the indictment in a memorandum.


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    City of New York et al., Respondents, v Caristo Construction Corp., Appellant.
    Argued May 1, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Joseph Arthur Cohen for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court (94 AD2d 688).

We agree that under transactional analysis, were it not for the express provision in the judgment of the United States District Court that its dismissal of respondents’ “post-trial asserted claim” for contract indemnification was “without prejudice”, the final determination in the Federal action would preclude assertion of that claim in the present action under res judicata principles. The explicit “without prejudice” provision, however, saves the claim from such preclusion. To be given legal effect, the contention, now advanced by appellant, that it was error to have included this provision in the Federal judgment inasmuch as the claim for contract indemnification had never been pleaded or otherwise asserted in the Federal law suit, had to be raised on appeal or other application for correction of the asserted error in the Federal action (cf. McLearn v Cowen & Co., 48 NY2d 696, 60 NY2d 686).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Accounting of Bankers Trust Company of Rochester, as Trustee under a Unitrust Agreement and for the Benefit of Philip Y. Hahn, Deceased. Bankers Trust Company of Western New York, Respondent; Philip Y. Hahn Foundation et al., Appellants.
    Argued May 3, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Charles S. Desmond for Philip Y. Hahn Foundation, appellant.

      PaulB. Zuydhoek and Arthur B. Sherwood for the Estate of Philip Y. Hahn, deceased, appellant.

      Michael R. Law and Robert F. Zogas for the Estate of Muriel M. Hahn, deceased, appellant.

      Robert Abrams, Attorney-General (.Bernard Toomin, Peter H. Schiff, Daniel L. Kurtz and Jonathan J. Silbermann of counsel), for Ultimate Charitable Beneficiaries, appellants.

      Laura B. Hoguet and E. Bayard Halsted for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to respondent payable by all appellants jointly, for the reasons stated in the opinion Per Curiam in that court (93 AD2d 583).

In view of the arguments pressed in our court we add that, even if this trustee had settled on a plan (perhaps more accurately, an objective) to effect the prompt liquidation of the Coleman shares as opportunity afforded, nothing in the prudent man standard required, in this instance, continuing adherence to that plan or precluded its modification or abandonment. The standard by which the performance of the trustee is to be judicially measured is whether, in all the circumstances including in this instance the express authorization to the trustee “in its absolute discretion” to retain the Coleman shares, the trustee exercised “such diligence and such prudence in the care and management [of the fund], as in general, prudent men of discretion and intelligence in such matters, employ in their own like affairs” (King v Talbot, 40 NY 76, 85-86; cited with approval Matter of Bank of N. Y., 35 NY2d 512, 518-519). The determination of the Appellate Division that there was no breach of that standard in this case comports with the weight of the evidence.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum, with costs to respondent payable by all appellants jointly.


text:
    The People of the State of New York, Respondent, v Alvin Jordan, Appellant.
    Argued May 4, 1984;
    decided June 5, 1984
    APPEARANCES OF COUNSEL

      Bruce Fenton for appellant.

      Elizabeth Holtzman, District Attorney (Rosalyn H. Richter and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On this direct appeal from his conviction of criminal possession of a weapon in the third degree, defendant seeks dismissal of the indictment against him on the grounds that he was denied his constitutional right to a speedy trial (incorporated in CPL 30.20) and that the People were not ready for trial within the time prescribed by statute (CPL 30.30). Neither of these claims was advanced in the criminal action before or at trial (CPL 210.45) although they were raised and rejected on defendant’s pretrial petition for a writ of habeas corpus. That petition, however, was denied by the Appellate Division, and a further appeal to the Court of Appeals from that denial was dismissed (51 NY2d 1007).

No application for the relief now sought having been made in Supreme Court in the criminal action and accordingly there having been no denial of a request for such relief, as a matter of appellate procedure, as the Appellate Division recognized, there was no ruling of the trial court in this action to be reviewed by the Appellate Division, or now in our court (People v Whisby, 48 NY2d 834; People v Adams, 38 NY2d 605).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    In the Matter of County of Onondaga et al., Appellants, v New York State Department of Correctional Services et al., Respondents.
    Argued April 30, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Robert J. Rossi, County Attorney (John R. Voninski of counsel), for appellants.

      Robert Abrams, Attorney-General (Nancy A. Spiegel and Peter H. Schiff of counsel), for respondents.

      Kenneth R. Fisher for Association of County Attorneys, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Petitioners commenced this proceeding seeking relief in the nature of mandamus to compel respondents to accept sentenced prisoners within a specified period of time. Respondents concede that CPL 430.20 (subd 1) imposes upon them a clear legal obligation to accept sentenced prisoners “forthwith” (Crespo v Hall, 56 NY2d 856), but urge that this mandate has not been violated in the present case. We agree that, on this record, which indicates only that the relevant delays in accepting prisoners amount to an average of six days, petitioners have failed to establish such a clear violation of respondents’ duty as to warrant mandamus relief (contrast Crespo v Hall, supra [an action for declaratory judgment and incidental injunctive relief]).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, without costs, in a memorandum.


text:
    John H. Fiske et al., Respondents, v William D. Fiske et al., Appellants.
    Argued May 1, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Robert L. Abrams for appellants.

      David V. Needleman for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. The weight of the evidence more nearly comports with the findings of the Appellate Division. In addition, we agree with that court that the oral agreement was enforceable in this instance to the extent specified in the Appellate Division decision.

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


text:
    Catham Realty Corp., Appellant, v Town of Southampton et al., Respondents.
    Argued May 3, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Robert J. DeBoissiere for appellant.

      John F. Petitt for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (97 AD2d 531).

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


text:
    John Cummings et al., Appellants, v Town Board of North Castle, Respondent, and Michael Gagliardi, Intervenor-Respondent.
    Argued April 30, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Stuart R. Shamberg and Robert F. Davis for appellants.

      Alfred D. Fredericks for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

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

Under sections 421 and 431 of the zoning ordinance, nurseries are permitted uses in an R-2A district with a special use permit and the power to grant such a permit is reserved to the Town Board. When the legislative body reserves to itself the granting of special exceptions it need set forth no standards for the exercise of its discretion (Matter of Larkin Co. v Schwab, 242 NY 330, 334; see Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20), and even if the ordinance sets forth standards, it has not divested itself of the power of further regulation (Rodgers v Village of Tarrytown, 302 NY 115, 123), unless the standards expressed purport to be so complete or exclusive as to preclude the Board from considering other factors without amendment of the zoning ordinance (Matter of 4M Club v Andrews, 11 AD2d 720; Matter of Bar Harbour Shopping Center v Andrews, 23 Misc 2d 894, 900). Except in the latter situation, grant or denial of the permit is left to the “untrammeled, but of course not capricious discretion” of the Board with which the courts may interfere only when it is clear that the Board has acted “solely upon grounds which as matter of law may not control the discretion” of the Board (Matter of Larkin Co. v Schwab, 242 NY, at p 335).

The Board in granting a nursery permit to intervenor did not exceed permissible bounds. The standards governing the Town Board’s action on an application for a special permit use are set forth in section 435 of the ordinance and the definition of “nursery” in section 220 of the ordinance does not preclude the Board from permitting sale and display merely because it makes no mention of the sale and display of nursery products. The fact that commercial sale and display of nursery products is also a permitted use in an NB district does not limit the Board’s “dispensing power” (Matter of Larkin Co. v Schwab, 242 NY, at p 334) with respect to the granting of a nursery permit in an R-2 A district. Nor is the implication that petitioner seeks to draw from the reference to “permitted principal uses” in an R-2A district that a property may contain but one “principal” use, even if accepted, sufficiently clear to preclude the Board from granting the permit.

The standards pertinent to grant of the permit in question are those set forth in section 435. The Board found that as modified by the conditions it imposed those standards were met. Petitioners argue and Special Term held that section 435.3 was violated. They point to the Board’s statement, in imposing its conditions, that “[t]he hours for machinery operation * * * can produce higher noise levels than would be found if the parcels were developed residen-tially” (emphasis supplied). Section 435.3 requires that the Board find that “Operations in connection with any special use will not be more objectionable to nearby properties by reason of noise * * * than would be the operations of any permitted use not requiring a special permit” (emphasis supplied). The Board’s conclusion that noise from interve-nor’s nursery “can produce higher noise levels” does not constitute a finding that it will “be more objectionable.” Its determination that, with the conditions it imposed, inter-venor’s nursery application met the standards of the ordinance is, therefore, neither contrary to those standards nor beyond its discretion.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    James M. Todd, Doing Business as Coin Operated Equipment Company, Appellant, v Ronald S. Krolick et al., Doing Business as Gentlemen, Respondents.
    Argued May 1, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Anthony J. Amodeo and Harlan R. Harrison for appellant.

      Thomas F. Gleason for respondents.
   OPINION OF THE COURT

Memorandum.

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

The complaint does not state a cause of action because, as the Appellate Division held (96 AD2d 695), the washing machine agreement between plaintiff and Monarch Associates which plaintiff seeks to enforce against defendants, Monarch’s successor in title, is a license, not a lease or easement. The complaint is insufficient for the further reason that it fails to allege that the agreement, which purported to bind Monarch and its successors for a period of 10 years, was recorded. Under sections 290 and 291 of the Real Property Law the agreement, whether a license, lease, easement or covenant running with the land, because it creates an interest in real property for longer than three years, “is void as against any person who subsequently purchases or acquires * * * the same real property * * * in good faith for a valuable consideration” (Real Property Law, § 291). The complaint alleges no more than that defendants had notice of the washing machines, not that they had notice of the agreement. There is, therefore, no allegation of constructive notice of the agreement sufficient to make section 291 inapplicable (Bermann v Windale Props., 4 AD2d 746; General Meter Serv. Corp. v Manufacturers Trust Co., 182 Misc 184, 187, affd 267 App Div 992; Wash-O-Matic Laundry Co. v 621 Lefferts Ave. Corp., 191 Misc 884, 886; see Andy Assoc. v Bankers Trust Co., 49 NY2d 13).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Michael B., a Child Alleged to be Permanently Neglected. Broome County Department of Social Services, Respondent; Darlene B., Appellant. Charles FF. et al., Intervenors-Respondents.
    Argued May 2, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Ronald R. Benjamin for appellant.

      Thomas B. Oakes for respondent.

      Peter E. J. Nilsson for intervenors-respondents.

      G. Peter VanZandt, Law Guardian.

   OPINION OF THE COURT

Memorandum.

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

On our prior consideration of this matter we remitted for a further hearing because the record indicated that appellant had made several visits to her son, procured living accommodations and financial means for her son, and that she had failed to undergo psychological testing because of a misdelivery of the notice of appointment.

After the further hearing the Trial Judge concluded that the additional evidence introduced did not change the situation and that he was bound by our prior decision. In light of the additional testimony presented, the Appellate Division, however, found appellant’s testimony as to setting up an apartment for her son was totally discredited, that she had visited Michael but sporadically and had intentionally declined to seek counseling, and that her meager work record was not excused by her claimed illness, which it found exaggerated. It, therefore, adjudged Michael to be permanently neglected and granted the petition to terminate her parental rights. On review of the record, we find that the weight of the evidence comports with the findings of the Appellate Division and is clear and convincing.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of William R. Frye, Appellant, v Commissioner of Finance of the City of New York et al., Respondents.
    Argued May 3, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Herald Price Fahringer for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stanley Buchsbaum, Gale Zareko and Alvin H. Kaufer of counsel), for respondents.

      David J. Levidow for Deadline Club, New York City Chapter/Society of Professional Journalists, Sigma Delta Chi, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

At issue is whether petitioner is to be deemed a “professional” within the meaning of subdivision (c) of section S46-2.0 of the New York City Administrative Code, not whether in any sense of the word he can properly be referred to as a “professional” (cf. Civil Rights Law, § 79-h). It is, moreover, in the context of the present proceeding, whether petitioner sustained his burden of establishing his right to exemption from tax as a person engaged in a profession, which is “essentially a question of fact to be determined by the commission[er] subject to very limited judicial review” (Matter of Koner v Procaccino, 39 NY2d 258, 263).

That petitioner is a journalist does not, without more, protect him from taxation (Matter of Steinbeck v Gerosa, 4 NY2d 302, app dsmd for want of substantial Federal question 358 US 39), nor does petitioner so contend. He argues, rather, that the licensing and ethical control criteria suggested in Matter of Rosenbloom v State Tax Comm. (44 AD2d 69, mot for lv to app den 34 NY2d 518 [dealing with the parallel provision of the State’s unincorporated business tax]) cannot constitutionally be applied to him because the First Amendment proscribes licensing or control of journalists. The Rosenbloom factors are not absolute, however, as the footnote (44 AD2d, at p 71) with respect to the corporate form shows. Whether the absence of licensing and ethical control can serve to exclude journalists from exemption from tax need not be decided, therefore, if the denial of exemption to him is a reasonable construction of the Administrative Code and is supported by the record (Matter of Koner v Procaccino, supra; Matter of Howard v Wyman, 28 NY2d 434, 438).

That the Commissioner’s construction of the subdivision in question as to educational background is reasonable is clear from Matter of Koner v Procaccino (39 NY2d, at p 262); Matter of Voorhees v Bates (308 NY 184,189); People ex rel. Tower v State Tax Comm. (282 NY 407, 412), among others. Moreover, as the Appellate Division noted, the evidence does not demonstrate that a special course of study is required of practicing journalists or that petitioner followed such a course of instruction and study. Petitioner’s evidence establishes his attainment of a position of pre-eminence in his field. That, however, is an insufficient basis for us to conclude that the Commissioner’s interpretation of the law or the facts is clearly erroneous.

Nor, finally, is the assessment of unincorporated business tax against petitioner barred by laches. The personal income tax returns filed by him for the years in question were for a separate and distinct tax (Matter of Hewitt v Bates, 297 NY 239) and, as we have held many times, estoppel is not available against a governmental agency in the exercise of its governmental functions (Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Judgment affirmed, with costs, in a memorandum.


text:
    Brian Bailey et al., Appellants, v William Morgan, Respondent.
    Argued May 3, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      James D. Horwitz and Joseph R. Brennan for appellants.

      Thomas J. Spargo for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (95 AD2d 883).

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


text:
    City of New York, Appellant, v Long Island Airports Limousine Service Corp. et al., Respondents. In the Matter of City of New York, Appellant, v William C. Hennessy, as Commissioner of Transportation of the State of New York, et al., Respondents.
    Argued May 1, 1984;
    decided June 5, 1984

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Pamela S. Dolgow and Ronald E. Sternberg of counsel), for appellant.

      Michael S. Oberman and William M. Stewart for Long Island Airports Limousine Service Corp., respondent.

      Frederick Goldfeder and Darrell W. Harp for William C. Hennessy, respondent.
   OPINION OF THE COURT

Memorandum.

Respondent, Long Island Airports Limousine Service (LIALS), and appellant, the City of New York (City), in 1968 entered into a contract whereunder the City granted LIALS a 10-year franchise to operate a transportation service between the New York airports and points east. Section 4.7 of the contract provided that: “In the event the Company continues the operation of the authorized routes, or any portion of the authorized routes after and in spite of termination, cancellation or expiration of the franchise hereby granted, the Company agrees to pay the City the compensation and charges set forth in this contract which were in effect immediately prior to such termination or expiration and in the manner as set forth herein, together with all taxes it would have been required to pay had its operation been duly authorized. If the Company shall fail to pay such compensation or taxes, the Comptroller of the City may withdraw the amounts thereof from the security fund if such fund shall not have already become the property of the City as in this contract provided.” At the time the contract was executed, article 5 of the Transportation Corporations Law prohibited the operation of an omnibus business without the locality’s consent, and the franchise agreement embodied the City’s consent. But later amendments to the statute eliminated the need for consent of the locality. LIALS paid the City compensation until termination of the contract, but continued operating its transportation service thereafter without City consent, as it could lawfully do, and without payment to the City. Relying on section 4.7 of the contract, the City seeks continuing compensation.

LIALS contends that the language of section 4.7 manifests an understanding between the parties that the obligation to continue payments after cancellation or termination of the franchise rested on the City’s ability to withhold consent to the subsequent operation of the transportation service. We agree. Section 4.7 provides for the continuation of LIALS’ business, and continuing payments to the City, “in spite of” cancellation, termination or expiration of the franchise, which contemplates an act in defiance of and rendered unlawful by the City’s withdrawal of consent. It does not address the situation here, where operation of the transportation service without the City’s consent became lawful. Section 4.7 further provides that in the event of continued service after cancellation or termination, LIALS would be responsible for' “all taxes it would have been required to pay had its operation been duly authorized.” Again, this language demonstrates the applicability of the section to situations where the City had the power to withhold consent to LIALS’ operation of the transportation service. Since the City lost its power to do so, the obligation to continue payments even after contract termination was not triggered, and LIALS was not in breach of the agreement.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    Eugene Weiss et al., Appellants, v Sargent Karch, Respondent.
    Argued May 2, 1984;
    decided June 5, 1984
    APPEARANCES OF COUNSEL

      Ernest H. Gellman for appellants.

      Jeffrey L. Zivyak for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this action for breach of a contract to sell a cooperative apartment, the parties stipulated that the seller (respondent) had breached the contract and was liable to the buyers (appellants), for such damages as the court would award “by applying to this action a breach of contract measure of damages”. After a trial on damages, Trial Term awarded appellants $100,000, the difference between the contract price ($475,000) and what it determined to be the market value of the apartment ($575,000) as of October 14, 1980, the day appellants learned of respondent’s repudiation of the agreement, plus $6,400 in consequential damages for the maintenance appellants paid during a four-month renovation period for their replacement apartment. The Appellate Division modified on the facts and the law by dismissing the award of consequential damages and reducing the remaining damages, on its differing finding as to the apartment’s market value, to $37,000.

In light of the disagreement between the courts below as to market value, this court has reviewed the record and determined that the Appellate Division’s findings more nearly comport with the weight of the evidence. (CPLR 5501, subd [b]; Matter of Marine Midland Props. Corp. v Srogi, 60 NY2d 885, 887; Matter of Hime Y., 54 NY2d 282, 286.) The Appellate Division also properly dismissed Trial Term’s award of consequential damages, as appellants’ payment of maintenance on a replacement apartment was based upon a particular need of theirs of which respondent was unaware at the time the contract was made. (Uniform Commercial Code, § 2-715, subd [2], par [a].)

Appellants contend that the market value of the apartment should not have been assessed as of the date they learned of respondent’s breach, but rather “a commercially reasonable time after learning of the breach.” This argument must be rejected. This contract, in reality a sale of securities in the cooperative corporation, is governed by the Uniform Commercial Code, and appellants’ “benefit of the bargain” damages thereunder are to be determined by using the measure of “the difference between the market price at the time when the buyer learned of the breach and the contract price”. (Uniform Commercial Code, § 2-713, subd [1]; see, also, Simon v Electrospace Corp., 28 NY2d 136, 145; Parker v Hoppe, 257 NY 333, 341.)

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Robert P. Reeves, as a Judge of the Family Court, Rensselaer County.
    Decided June 7, 1984
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Robert P. Reeves is not suspended from his office of Judge of the Family Court, Rensselaer County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    Bee Jay Industrial Corp., Appellant, v Charles Fina et al., Respondents.
    Decided June 7, 1984

      APPEARANCES OF COUNSEL

      Richard M. Gordon for appellant.

      Harold J. McLaughlin 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 (98 AD2d 738). We note that defendants’ motion for summary judgment was itself predicated on the absence of a written contract as required by the Statute of Frauds (General Obligations Law, § 5-703, subd 2).

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


text:
    In the Matter of Grand Jury Subpoenas Served Upon Ken Kronberg et al., Appellants. The People of the State of New York, Respondent. In the Matter of Grand Jury Subpoenas Served Upon Al Schwartz et al., Appellants. The People of the State of New York, Respondent.
    Argued May 8, 1984;
    decided June 7, 1984

      APPEARANCES OF COUNSEL

      Lawrence Hochheiser, Kenneth J. Aronson and Julia Pamela Heit for appellants.

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

Order affirmed, without costs, for reasons stated in the memorandum of the Appellate Division (95 AD2d 714).

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


text:
    In the Matter of John M. Ferreri, Respondent, v New York State Thruway Authority, Appellant.
    Decided June 7, 1984

      APPEARANCES OF COUNSEL

      Robert J. Farrell and Charles T. Randall for appellant.

      Jonathan Axelrod and Dominic Toed for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the Authority reinstated.

Petitioner, having been disciplined for refusing to accept an overtime assignment, sought review of that order pursuant to section 76 of the Civil Service Law. He recognizes the “work now, grieve later” rule under which an employee covered by a collective bargaining agreement which establishes grievance machinery is required to obey a work order and pursue his grievance remedy, even though there is substantial reason to believe that the order violates the agreement (Elkouri & Elkouri, How Arbitration Works [3d ed], pp 154-159; Fairweather, Practice and Procedure in Labor Arbitration [2d ed], pp 226-227; Trotta, Arbitration of Labor-Management Disputes, p 283). He argues, however, that he was justified in refusing to return for a midnight to 8:00 a.m. snow removal shift by the exceptions to the general rule for situations in which it is indisputably clear that the order is beyond the power of management (Elkouri & Elkouri, op. cit., at p 156, and n 212) or in which compliance would present an unusual threat to the health or safety of the employee (Elkouri & Elkouri, op. cit., at p 155; Trotta, op. cit., at p 283).

We need not decide whether as a matter of contract law the Appellate Division’s construction of the collective bargaining agreement between petitioner’s union and the Thruway Authority is correct, for the agreement cannot be construed as placing the overtime work order to petitioner clearly beyond management’s prerogative. The provision upon which petitioner and the Appellate Division relied (art XVI, § H) speaks to the equitable distribution of overtime opportunities among employees. It may reasonably be construed, as the hearing officer construed it, as relating only to the order in which, as a matter of priority, overtime assignments are to be made. Nothing in its provisions or elsewhere in the contract so explicitly limits the Authority’s power to order mandatory overtime as to make indisputably clear that it had no such power and, thus, to excuse petitioner’s refusal to accept the assignment. Nor can it be said that the hearing officer erred in rejecting petitioner’s claim that his refusal was justified by advice of union officials that the Authority, by raising and then abandoning the mandatory overtime question in collective bargaining, had waived its right to make such an order. Not only was no documentary evidence presented in support of this claim, but also the Authority’s manual, which had been distributed to the union, contained an explicit statement of its right to order overtime. Whether there had been such a waiver was, therefore, a matter to be determined under the contract’s grievance mechanism or in a proceeding before the Public Employment Relations Board (cf. Matter of Civil Serv. Employees Assn. v Newman, 61 NY2d 1001, affg 88 AD2d 685) and was not so indisputably clear as to warrant petitioner’s refusal to work.

Nor did the hearing officer err in concluding that petitioner had not brought himself within the health or safety exception or in taking into account in fixing the penalty the prior warning given petitioner concerning refusal to obey orders. As to the health or safety claim, it was not asserted as a basis for refusal and is inconsistent with petitioner’s offer to continue working past the end of his shift and with the Authority’s offer of expense-paid motel accommodations and meals during the eight-hour period preceding the overtime assignment. As for the prior warning, the fact that petitioner was told that no action other than the warning would be based upon the prior incident cannot reasonably be construed as an agreement that administrat n of the warning would never be taken into account in fi dng the penalty for subsequent insubordination.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, 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), judgment reversed, with costs, and determination of the Authority reinstated in a memorandum.


text:
    In the Matter of Juan Colon, Respondent, v Robert J. McGuire, as Police Commissioner of the City of New York, et al., Appellants.
    Decided June 7, 1984

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (<Jonathan Weinberger of counsel), for appellants.

      Carmine J. Perrotta 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 reversed, with costs, and judgment of Supreme Court, New York County, reinstated for the reasons stated in the opinion of Justice Ira Gammerman at Special Term.

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


text:
    The People of the State of New York, Appellant, v Patrick J. Burke, Respondent.
    Argued May 4, 1984;
    decided June 7, 1984
    APPEARANCES OF COUNSEL

      Benjamin J. Bucko, District Attorney (Norma W. Schwab of counsel), for appellant.

      Richard L. Greenburg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In this arson prosecution, the question whether the People’s case rested entirely on circumstantial evidence turned on the nature of the testimony of the People’s witness Robert Bennett. Though unable at trial to recall any prior conversations with the defendant, Bennett did testify that any statements he made during the Grand Jury presentation were true. The prosecutor then read into evidence Bennett’s Grand Jury testimony, in which he said that, in a conversation about the fire, he asked defendant whether he had covered his tracks, and that defendant answered, “yes, there was nothing to worry about, he had left nothing behind, no one would find anything.”

In arguing that a circumstantial evidence charge was required, defendant does not claim that because Bennett’s Grand Jury testimony was at best admissible for impeachment purposes it was necessarily circumstantial, and we do not address that issue. Defendant claims that his prior statements to Bennett were not direct acknowledgments of guilt and therefore constituted only circumstantial evidence. We agree. Whereas the defendant’s statement in People v Rumble (45 NY2d 879) (“I’m not responsible for what I did”) could itself be accepted by the fact finder as a direct admission that defendant had committed the act in issue, in the present case the Bennett testimony, even if accepted by the jury as relating to the crime charged, still required an inference that defendant had set the fire, and was therefore circumstantial evidence. “[A]n extrajudicial admission by a defendant, not amounting to a confession because not directly acknowledging guilt, but including inculpatory acts from which a jury may or may not infer guilt, is circumstantial, not direct evidence” (People v Bretagna, 298 NY 323, 326, cert den 336 US 919). Since the evidence was entirely circumstantial, the trial court erred in refusing to instruct the jury to apply the more rigorous circumstantial evidence standard.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant-Respondent, v Ignatius Fuggazzatto, Respondent-Appellant.
    Argued May 7, 1984;
    decided June 7, 1984
    APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Brian D. Foley and Barbara D. Underwood of counsel), for appellant-respondent.

      Andrew E. Abraham and William E. Hellerstein for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing that part which denied defendant’s motion to vacate his plea and by dismissing indictment No. 1158/73 and, as so modified, affirmed.

Two indictments are in issue, No. 5172/72 and No. 1158/73, filed simultaneously. Defendant’s motions pursuant to CPL 30.30 to dismiss both indictments were denied. Defendant proceeded to trial on the first, resulting in a conviction, and entered a plea of guilty on the second, on the understanding that the sentence imposed would run concurrently with and not exceed the first. For the reasons stated in the Appellate Division’s memorandum (96 AD2d 538), we agree that the period of more than six months between the filing of the indictments and the first attempt to execute the bench warrant was not excludable from the time limitations imposed by CPL 30.30, and that defendant’s conviction was properly set aside and indictment No. 5172/72 dismissed. We note further that the period of more than six months between the dismissal of the felony complaint and the filing of the indictment itself provided an independent basis for dismissal under CPL 30.30 (People v Osgood, 52 NY2d 37).

Defendant’s plea having been induced by the understanding that the sentence would be concurrent with the sentence imposed for his conviction, since set aside, the plea must be vacated (People v Clark, 45 NY2d 432, 440). Remittal for further proceedings on the second indictment is unnecessary because the speedy trial motion encompassed both indictments, and the reasons for dismissing the first apply with equal force to the second.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order modified by vacating defendant’s plea to indictment No. 1158/73 and dismissing indictment No. 1158/73 and, as so modified, affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Nathaniel Hood and Gwendolyn Hood, Appellants.
    Argued May 9, 1984;
    decided June 7, 1984

      APPEARANCES OF COUNSEL

      Richard A. Greenberg for Nathaniel Hood, appellant.

      Julia Pamela Heit for Gwendolyn Hood, appellant.

      Elizabeth Holtzman, District Attorney (Nikki Kowalski and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendants are not entitled to specific performance of an alleged plea bargain which was never formally entered on the record.

Defendants, Nathaniel Hood and his sister Gwendolyn, were indicted for attempted murder in the first degree, attempted assault in the first degree, and criminal possession of a weapon in the second degree. In January, 1978, the case was moved to a trial part, and plea negotiations ensued. From his own discussions with counsel the Judge understood, just before the luncheon recess, that an agreement had been reached whereby Nathaniel would plead to assault in the first degree and receive a 15-year sentence and Gwendolyn would plead to a weapons possession charge and receive a sentence of probation, and that this agreement would be entered on the record upon resumption of the proceedings that afternoon. Not surprisingly, the parties at this stage present different accounts of what actually occurred in those off-the-record discussions. After lunch, the supervising prosecutor appeared and informed the court, on the record, that having consulted with the victim, the People determined that it was not appropriate to accept the plea bargain. Both defendants subsequently pleaded not guilty, proceeded to a Bench trial, and were convicted of attempted murder in the first degree and sentenced to terms of 15 years to life in prison. The Appellate Division affirmed the convictions.

Defendants are not entitled to specific performance of the alleged plea bargain. The statements on the record by the prosecutor rejecting the proposed plea bargain are inconsistent with defendants’ contention that there had been a prior off-the-record unconditional acceptance by the People. Even if defendants’ contentions were accepted, however, there is no basis for judicial recognition of a plea bargain until it is concluded by entry on the record. (See People v Frederick, 45 NY2d 520, 526; People v Selikoff, 35 NY2d 227, 244, cert den 419 US 1122.)

Defendants argue further that they were denied effective assistance of counsel in the conduct of their trial. While no defense witnesses were called, each defense counsel cross-examined the People’s witnesses, presented opening and closing arguments to the court, and presented theories — albeit unsuccessful — of defense. In these circumstances we cannot say that defendants’ right to effective assistance of counsel was denied. (People v Baldi, 54 NY2d 137; People v Aiken, 45 NY2d 394.) We have considered defendant Gwendolyn Hood’s additional argument that her guilt was not as a matter of law proven beyond a reasonable doubt, and find it also to be without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Ismael Mercado, Appellant.
    Argued May 9, 1984;
    decided June 7, 1984

      APPEARANCES OF COUNSEL

      Stephanie T. Knowles and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Stuart L. Sanders and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The court did not abuse its discretion as a matter of law in denying the defendant’s motion to reopen the suppression hearing. A court is not bound to grant a motion to reopen in order to entertain a new issue based on a decision announced after the motion to suppress has been denied (People v Grosfeld, 58 NY2d 887). Here, as in Grosfeld, the defendant failed to meet the threshold requirement for such relief because he did not establish a factual predicate at the hearing to support his contention that the warrant-less arrest violated his rights under Payton v New York (445 US 573), and this defect was not cured by the papers he submitted on the motion to reopen. Under these circumstances the retroactivity of Payton is irrelevant (People v Grosfeld, supra), as are the trial court’s beliefs or observations concerning retroactivity (People v Kaminski, 58 NY2d 886).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Richard Wheeler, Appellant.
    Argued May 10, 1984;
    decided June 7, 1984

      APPEARANCES OF COUNSEL

      Kevin M. O’Shea for appellant.

      Denis Dillon, District Attorney (Bruce E. Whitney and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to County Court, Nassau County, for a new trial.

Defendant was tried jointly with his brother for the crime of murder in the second degree. The brother made a pretrial statement, in which he implicated defendant as a participant in the robbery which led to the victim’s death. Once this statement was deemed admissible, defendant moved to sever his trial from that of his brother, urging that the admission of the confession upon the joint trial impermissibly deprived him of his right to confrontation of the declarant. The trial court denied the motion, concluding that the confession had been sufficiently redacted so as to avoid any incriminating references to defendant and that its admission upon the joint trial was thus permissible. Although references to the defendant by name had been eliminated from his codefendant’s statement, the evidence before the jury (both in the form of the actual, redacted statement and the police officers’ testimony to its substance) contained numerous references by the codefen-dant to another participant in the crime. For example the codefendant stated that: “We got to the track”; “I said [deletion] let’s watch the cashiers window to see if somebody made a big hit and we will roll them”; and “we did not talk about the shooting that night”. Defendant’s conviction was affirmed by the Appellate Division.

We conclude that the codefendant’s statement was not admissible on the joint trial, and that defendant’s application to sever his trial should have been granted. When an extrajudicial statement by one defendant contains incriminating references to another defendant, admission of that statement upon their joint trial deprives the nonconfessing defendant of his right to confront the witness against him unless that witness also testifies at the joint trial (Bruton v United States, 391 US 123). If the confession, however, can be effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant, it may be utilized at the joint trial (People v Smalls, 55 NY2d 407; People v Boone, 22 NY2d 476). The burden of effective redaction rests, of course, with the People.

The People assert that the references to another participant in the codefendant’s statement would not necessarily be viewed by the jury as referring to defendant. The People point to the testimony at trial to the effect that yet a third person may have participated in the crime and argue that the jury might have viewed collective references in the confession as concerning this additional participant. The possibility that the jury may have viewed the incriminating references in this manner is insufficient to eliminate the prejudice to defendant from the use of this statement upon his trial. Given that the two brothers were being tried for the crime together, we believe the confession could only be read by the jury as inculpating defendant (People v Geoghegan, 68 AD2d 279, affd 51 NY2d 45). Its admission on the joint trial was therefore error. Nor can we say that there is no possibility that this error contributed to defendant’s conviction and therefore we cannot agree with the People’s contention that the error was harmless beyond a reasonable doubt.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

Order reversed, etc.


text:
    Highway Displays, Inc., Appellant, v State of New York, Respondent.
    (Claim No. 64680.)
    Argued May 4, 1984;
    decided June 7, 1984

      APPEARANCES OF COUNSEL

      Herbert N. Wallace for appellant.

      Robert Abrams, Attorney-General {Dennis Hurley and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (97 AD2d 431).

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


text:
    In the Matter of the Viguerie Company, Appellant, v Basil A. Paterson, as Secretary of State of the State of New York, Respondent.
    Argued May 7, 1984;
    decided June 7, 1984

      APPEARANCES OF COUNSEL

      Stuart A. Jackson, Ronald L. Mayers and Thadd A. Blizzard for appellant.

      Robert Abrams, Attorney-General (.Ronald Cohen, Peter H. Schiff and Daniel L. Kurtz of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (94 AD2d 672), to which we add, the inhibiting effect of which petitioner complains is precisely what the Legislature intended and is well within its police power.

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


text:
    Bellevue South Associates, Appellant, v Heckler Electric Co., Inc., et al., Respondents.
    Argued May 9, 1984;
    decided June 7, 1984

      APPEARANCES OF COUNSEL

      John M. O’Connor and Mark Weldon for appellant.

      Charles Fastenberg, Allen Ross and Frederick Cohen for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (95 AD2d 721).

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


text:
    William Moffatt, Respondent, v Eleanor Moffatt, Appellant.
    Decided June 7, 1984

      APPEARANCES OF COUNSEL

      Barbara Simon for appellant.

      Alan P. Goodman 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), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs. The order of the Appellate Division, insofar as it denied defendant’s cross motion to discontinue her counterclaim on the appeal from the order of Supreme Court dated November 6, 1980, is affirmed for the reasons stated in the memorandum at the Appellate Division (86 AD2d 864). The order of the Appellate Division, insofar as it reinstated the jury verdict on the appeal from the Supreme Court order dated April 30, 1981, is affirmed upon the ground that that portion of the Appellate Division order presents no question for review by this court (Gutin v Mascali & Sons, 11 NY2d 97).

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


text:
    Delaware County Electric Cooperative, Inc., et al., Appellants, v Power Authority of the State of New York et al., Respondents.
    Argued May 8, 1984;
    decided June 7, 1984

      APPEARANCES OF COUNSEL

      Victor T. Fuzak, Richard F. Campbell and Howard E. Berger for appellants.

      Gerald C. Goldstein, Stephen L. Baum, Wendy M. Lane and Reina Barcón for Power Authority of the State of New Ydrk, respondent.

      Frederic H. Lawrence and Kenneth M. Jasinski for New York State Electric and Gas Corporation, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Reid S. Moule at the Appellate Division (96 AD2d 154).

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