text:
    County of Rensselaer et al., Respondents, v Edward V. Regan, as Comptroller of the State of New York, et al., Appellants.
    Argued October 15,1992;
    decided November 19, 1992

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General, Albany (Julie S. Mereson, Jerry Boone and Peter H. Schiff of counsel), for appellants.

      Thuillez, Ford, Gold & Conolly, Albany (Michael J. Hutter of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

In 1981, the Legislature enacted the "special traffic options program for driving while intoxicated” (STOP-DWI) whereby a participating county could receive fines and forfeitures collected by courts within that county for alcohol-related driving offenses (L 1981, ohs 910, 913; reenacted L 1988, ch 47; see, Vehicle and Traffic Law § 1197). The funds were to be used for law enforcement and education purposes in accordance with plans submitted to and approved by the Commissioner of Motor Vehicles, who had a continuing duty to monitor each county’s program.

In an effort to defray the Commissioner’s costs of administering the STOP-DWI program, the Legislature provided in the 1990-1991 State Operations Budget that the State Comptroller shall “collect, withhold and receive” up to 2% of these revenues received “in any court,” to be deposited in the general fund. Plaintiffs, five participating counties and others, sought a declaratory judgment that this provision violated article V, § 1 of the State Constitution, which provides, in pertinent part, that the Legislature “shall assign to [the Comptroller] no administrative duties, excepting such as may be incidental to the performance of [the Comptroller’s constitutional] functions.”

Supreme Court assumed, without deciding, that plaintiffs had standing to challenge the budget provision (151 Misc 2d 552, 554), and the Appellate Division expressly held that the county plaintiffs had standing (173 AD2d 37, 40), applying a standard that court had previously enunciated (see, Matter of City of New York v Lawton, 128 AD2d 202, 206; Purcell v Regan, 126 AD2d 849, 850, Iv denied 69 NY2d 613). According to the Appellate Division, a county has standing to challenge allegedly invalid legislation when it has a proprietary claim of entitlement to a specific fund, and asserts that the legislation has impaired its entitlement to that fund (173 AD2d, at 40). We have not previously endorsed that concept of standing, nor —as the parties have framed the issue — is it necessary for us to consider the validity of that concept today.

The thrust of defendants’ standing argument on this appeal is that the counties lack standing because they cannot establish the requisite proprietary interest. According to defendants, the revenues are State, not county, funds. On the facts before us, defendants’ standing argument must be rejected. The STOP-DWI legislation having been neither amended nor repealed, the participating counties have a proprietary claim to the fines and forfeitures at issue, thus establishing standing, under the Appellate Division’s standard, to challenge the constitutionality of the Legislature’s assignment of administrative duties to the Comptroller.

Turning to the merits, the counties concede that the Legislature, which has ultimate authority over the disposition of fines collected in this State, may reduce or even eliminate their share of the revenues. However, what is challenged here as unconstitutional is the methodology by which the Legislaturc accomplished the "up to” 2% reduction — by assigning to the Comptroller duties assertedly not incidental to his constitutional duties and granting overbroad discretion to effect the reduction (compare, Hunter v Pittsburgh, 207 US 161, 179 [State Legislature, so long as it "conform(s) its action to the state constitution, may do as it will” with regard to political subdivisions] [emphasis added]). On these points, we agree for reasons stated by Justice Kahn at Supreme Court (151 Misc 2d 552, supra) and Justice Levine at the Appellate Division, that the budget provision at issue violates article V, § 1 of the State Constitution.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, with costs, in a memorandum.

       Thus it is unnecessary for us to consider whether the Rensselaer County STOP-DWI Coordinator and the STOP-DWI Coordinators’ Association independently have standing.


source: Caselaw Access Project

license: Public Domain

text:
    Commissioners of the State Insurance Fund, Appellant-Respondent, v Insurance Company of North America, Respondent-Appellant.
    Argued October 14,1992;
    decided November 19, 1992

      APPEARANCES OF COUNSEL

      Raymond C. Green, New York City (Melisande Kopp of counsel), for appellant-respondent.

      Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Nina Cangiano and Glen Feinberg of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant Insurance Company of North America (INA), by reversing the grant of summary judgment to plaintiff State Insurance Fund (SIF) on the first cause of action and instead granting summary judgment to defendant dismissing that first cause of action and, as so modified, the Appellate Division order should be affirmed.

This is an action by one insurer, SIF, to recover from another insurer, INA, a pro rata contribution for a settlement paid in a personal injury action. The two insurers respectively insured Clay Drywall, Inc. (Clay), a third-party defendant in the suit brought by its employee against the owners of a building and others, on whose premises the employee was injured in an industrial accident. SIF insured Clay under a combined workers’ compensation and employer’s liability policy. INA coinsured Clay under a comprehensive general liability policy. SIF paid the workers’ compensation award of $19,411.33 and acquired a workers’ compensation lien against any recovery by the employee from third parties (Workers’ Compensation Law § 29 [1]). The employee sued the owners of the work premises and others, who impleaded Clay for contribution and indemnification. SIF paid Clay’s portion of the settlement, consisting of $150,000 "fresh money” and $19,411.33 in waiver of its workers’ compensation lien. SIF then brought this declaratory judgment action against INA asserting two causes of action seeking one half of the respective settlement components. The injured employee and the insured employer are not involved in this dispute.

Both insurers moved for summary judgment on both causes of action. Supreme Court and the Appellate Division agreed that SIF should recover one half of the $150,000 (i.e., $75,000) "fresh money” contributed to the liability settlement of the lawsuit. Supreme Court denied summary judgment to SIF on the second cause of action seeking one half ($9,705.66) of the value of the waived workers’ compensation lien. The Appellate Division modified by granting INA’s summary judgment motion to dismiss that second cause of action. This Court granted cross motions for leave to appeal and we now modify. The net effect of our Court’s decision is to dismiss SIF’s complaint.

We conclude that both of SIF’s causes of action should be dismissed because the plain English exclusion clause in INA’s policy, which insures Clay unambiguously, excludes from coverage "claims that arise from bodily injury that your [the employer’s] employees suffer on the job.” The unambiguous language makes the exclusion applicable to any claim arising from bodily injury, whether in contribution or indemnity or as an exception to Workers’ Compensation Law § 11. Coverage for these claims is excluded "in clear and unmistakable language” under the INA policy (see, Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311). This Court is not permitted to construe a clause in a way that drains it of its only intended meaning. To divine ambiguity here would violate that principle and would defeat the use of plain English language in this insurance policy and clause (see, Goldman & Sons v Hanover Ins. Co., 80 NY2d 986).

Neither the theoretical nature of third-party contribution lawsuits (see, Dole v Dow Chem. Co., 30 NY2d 143) nor our precedents (see, Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co., 45 NY2d 551) compel a contrary result in the context of our application of a clear policy exclusion in this case. The liability of the third-party plaintiffs and third-party defendant (Clay) both originate with the same injury to the employee, although under different theories (see, Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603). Thus, the INA policy exclusion for all claims for negligent personal injuries, including indemnification and contribution, brought against the insured-employer originating with the employee’s work-related injuries is operative.

In view of our analysis, there is no need to address other issues raised by the parties and no indirect inferencés with respect to any other aspects should be drawn from our resolution of this case.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order modified, with costs to defendant, by denying plaintiffs motion for summary judgment as to the first cause of action and vacating the damages award to plaintiff on that cause of action, and granting defendant’s cross motion for summary judgment dismissing the first cause of action and, as so modified, affirmed, in a memorandum.


text:
    The People of the State of New York, Respondent, v Joseph Gebrosky, Appellant.
    Argued October 15,1992;
    decided November 19, 1992

      APPEARANCES OF COUNSEL

      Paul Lewis, New York City, and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Faith Crouchley and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant’s absence from a material part of his Sandoval hearing (People v Sandoval, 34 NY2d 371) violated his right to be present at all material stages of his trial (People v Beasley, 80 NY2d 981; People v Dokes, 79 NY2d 656). The issue is reviewable, despite defendant’s failure to object, and the People’s contention that this case involves exceptional circumstances rendering defendant’s presence "superfluous” is unavailing (People v Dokes, supra, at 662).

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Juan Aviles, Appellant.
    Argued October 22,1992;
    decided November 19, 1992
    APPEARANCES OF COUNSEL

      Kenneth Finkelman, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Richard Sheridan and Allen H Saperstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The trial court refused defense counsel’s request to instruct the jury in this case concerning lesser-included crimes, particularly manslaughter in the first degree. Defendant was convicted of murder in the second degree and other related crimes, and the Appellate Division affirmed the judgment of conviction. A Justice of the Appellate Division granted leave to appeal to this Court.

The street dispute started at 9:00 p.m. as a verbal exchange between defendant and an individual named Razor, escalated to a chase of Razor and three of his friends by defendant, who was brandishing a knife, and culminated in a multiperson melee on the ground. The homicide victim entered the fray to assist defendant, only to be stabbed twice mortally by defendant.

The lesser-included charge instruction, based on a view of the entire evidence of this street melee, cannot be said as a matter of law to have no reasonable support in the record evidence. Accordingly, the requested instruction should have been given and there should be a new trial.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum; Judge Smith taking no part.

Order reversed, etc.


author: Titone and Hancock, Jr., JJ.

text:
    In the Matter of Karen Heintz, Appellant, v Lee P. Brown, as Police Commissioner of the City of New York, et al., Respondents.
    Argued October 14,1992;
    decided November 19, 1992

      APPEARANCES OF COUNSEL

      Lysaght, Lysaght & Kramer, P. C., Lake Success (Raymond E. Kerno of counsel), for appellant.

      O. Peter Sherwood, Corporation Counsel of New York City, New York City (Ellen B. Fishman and Leonard Koemer of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, a New York City Police Officer, commenced this CPLR article 78 proceeding to annul and vacate respondents’ determination to deny line-of-duty designation for injuries she sustained while on duty. Petitioner injured her back when she slipped and fell on a wet bathroom floor at a police precinct. The police sergeant who investigated the accident the day it occurred recommended denial of the line-of-duty designation because he concluded that petitioner had been negligent in that she “failed to perceive the risk in treading on a [sic] obviously wet floor [and] [h]cr disregard for basic rules of safety.” An eyewitness confirmed the fall but did not indicate the condition of the floor. Subsequent to the sergeant’s recommendation, petitioner submitted a statement to the department that she "slipped in a puddle of water that was by the sink.” Thereafter, the department officially disapproved petitioner’s line-of-duty injury request. This determination disqualified petitioner from receiving payment of her hospital bills pursuant to Administrative Code of the City of New York § 12-127 (b). Supreme Court denied the petition to annul and vacate respondents’ determination. The Appellate Division affirmed.

Administrative Code § 12-127 (b) authorizes the City to pay the hospital bills of its uniformed forces “who, while in the actual performance of duty, and by reason of the performance of such duty and without fault or misconduct on his or her part, shall receive injuries to an extent which may endanger his or her life.” The paramount issue before this Court is whether respondents properly interpreted the "fault or misconduct” standard of section 12-127 (b) to include negligence, thereby prohibiting the payment of petitioner’s hospital expenses.

Petitioner contends that the “fault or misconduct” standard set forth in section 12-127 (b) refers not to mere negligence but rather to gross negligence or to acts that would result in the denial of benefits under the Workers’ Compensation Law. Respondents contend that petitioner seeks an interpretation of section 12-127 (b) that is inconsistent with its plain language.

Petitioner’s reliance upon the Workers’ Compensation Law is misplaced because it provides benefits "without regard to fault as a cause of the injury” (Workers’ Compensation Law § 10 [1]). Further, we reject the argument that fault under section 12-127 (b) would be equivalent to gross negligence. Such a construction is unsupported by either the plain meaning of fault or the legislative history. Accordingly, we conclude that it is proper to interpret the “fault or misconduct” standard set forth in Administrative Code § 12-127 (b) to include negligence. This interpretation is reasonable under the circumstances of this case.

Nor was respondents’ determination arbitrary, capricious or an abuse of discretion. In this regard, the court’s scope of review is limited to an assessment of whether there is a rational basis for the administrative determination without disturbing underlying factual determinations (Matter of Pell v Board of Educ., 34 NY2d 222, 230-231). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts” (id., at 231).

Respondents’ met their burden of showing that petitioner was negligent. The determination that petitioner failed to avoid an obvious hazard is supported by her own statement that the water was a puddle in front of a sink. In addition, petitioner’s failure to allege any facts tending to show that her injuries were not due to any fault or misconduct on her part leaves the finding of negligence unrebutted. We note here that after the initial recommendation, petitioner’s request was subjected to five levels of internal review via an informal grievance procedure. At no time during that process did petitioner supplement her claim with information establishing that she was not negligent. Thus, there was a rational basis for respondents’ determination.

Petitioner’s remaining contentions lack merit.

Titone and Hancock, Jr., JJ.

(dissenting). While on duty, petitioner police officer slipped in a wet spot on the bathroom floor and injured herself. By the majority’s holding, she is denied reimbursement for her medical expenses under Administrative Code of the City of New York § 12-127 (b) because she was guilty of "fault or misconduct”. She should have seen the wet spot, the majority holds, and was in some way contributorily negligent. Thus, she receives no recompense.

Could the Legislature possibly have intended an interpretation of the words "fault or misconduct” which makes contributory negligence — any negligence, no matter how slight — a basis for denying to firefighters and police officers injured in the line-of-duty relief under a statute which was obviously enacted for their benefit? One searches in vain for a reason why the Legislature might have intended such a harsh construction, a result which unfairly burdens members of the police and fire departments and is contrary to the evident purpose of the legislation.

The result seems all the more unfair when it is realized that members of the police and fire departments have always been excluded from workers’ compensation coverage which, if it applied, would protect them even if they were negligent. Ironically, the very reason for their exclusion from workers’ compensation was that they were already covered for line-of-duty injuries under the Administrative Code (see, Matter of Ryan v City of New York, 228 NY 16, 20). But the majority now holds that contributory negligence is an absolute bar under section 12-127 (b). It is inconceivable that the Legislature could have intended a statutory scheme for on-the-job injuries in which almost every employee in the State — except for members of police and fire departments — would be compensated for injuries regardless of their negligence. The majority suggests no reason why the Legislature would have envisioned such a punitive construction. If followed, this construction would deny medical reimbursement to deserving firefighters and police officers injured on the job if, as will be true in most cases, they have contributed to the cause of their own injuries, at least in some minor degree — for example, to a firefighter who slips on a wet sidewalk while dragging a fire hose, or to a police officer who trips on a curb while pursuing a suspect.

The majority holds that by reading the Code’s "plain meaning” (majority mem, at 1000) it must equate "fault or misconduct” with "simple negligence”. But it clearly need not do so. Under the doctrine of noscitur a sociis, "the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it” (McKinney’s Cons Laws of NY, Book 1, Statutes § 239). Here, the word "fault” is associated with the word "misconduct” and can be interpreted as mandating a greater showing of intent or wrong doing than "simple negligence” or plain carelessness. The Code’s requirement that an officer be "without fault or misconduct” can be construed as precluding coverage only where the officer willfully engaged in conduct which entailed an unnecessary risk such as deliberately violating a safety rule or otherwise acting recklessly. Thus, we disagree with the majority that the case may be decided by simply invoking the shibboleth of "plain meaning”, for the meaning of the word "fault” in the context here, is not plain.

Even if the meaning of the word "fault” could be regarded as plain, there would be an even more compelling reason for rejecting the majority’s construction: it produces a result which is anomalous and grossly unfair (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 145, 146, 148). As the rule is stated, in the oft quoted words of Chief Judge Breitel:

" 'There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one "plainly at variance with the policy of the legislation as a whole” this Court has followed that purpose, rather than the literal words’ ” (New York State Bankers Assn, v Al-bright, 38 NY2d 430, 437 [quoting United States v American Trucking Assns., 310 US 534, 543]).

Because, in our view, section 12-127 (b) as now interpreted is not in accord with the legislative will and could lead to highly unfair results, it should receive appropriate legislative attention.

Even adopting the majority’s stringent construction of "fault” as including any negligence, no matter how slight, substantial evidence does not support the City’s finding that petitioner was contributorily negligent. The only evidence in support of it was petitioner’s supervisor’s report. Concededly, petitioner was on duty when she slipped and fell on a puddle of water on the bathroom floor in the female officer’s locker room. Another police officer witnessed the fall and confirmed petitioner’s account of the incident. Later that same day, the supervisor investigated the incident and concluded that petitioner "failed to perceive the risk in treading on a[n] obviously wet floor. Her disregard for basic rules of safety represents negligence on her behalf’. Although the supervisor recommended disapproval of the line-of-duty designation, he did not witness the incident and the sole basis for his conclusion was the conceded fact that petitioner slipped and fell in a puddle. There was no evidence of petitioner’s lack of care and nothing to support the conclusion that the floor was "obviously wet” or that petitioner "disregard[ed] basic rules of safety”. The supervisor’s conclusion that petitioner was negligent was necessarily a speculation on his part and amounts to a finding based on a presumption of negligence from the mere happening of the incident. Accordingly, no rational basis existed for the City’s determination.

The results of two other line-of-duty applications from police officers who injured themselves under virtually identical circumstances when they slipped and fell on wet bathroom floors confirm the irrationality of the result here. In conclusory reports written after investigation of these injuries, the supervisors recommended, and the City later adopted, line-of-duty designations. The contradiction between these cases and this case illustrates the obvious difficulty in applying the majority’s interpretation of the Code fairly and the inevitability of arbitrary and inconsistent results when a showing of even the slightest negligence can lead to a rejection.

Acting Chief Judge Simons and Judges Kaye, Bellacosa and Smith concur; Judges Titone and Hancock, Jr., dissent and vote to reverse in a joint opinion.

Order affirmed, with costs, in a memorandum.


text:
    Susan Baba, Appellant, v 459 West 43rd Street Corp., Respondent.
    Submitted September 14,1992;
    decided November 19, 1992
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from a nonfinal order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Douglas Dockendorf, Appellant, v City of Saratoga Springs, Respondent.
    Submitted November 16,1992;
    decided November 19, 1992
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the Appellate Division order appealed from, which denied reargument or, in the alternative, leave to appeal to this Court, does not finally determine the action within the meaning of the Constitution.

Judge Smith taking no part.


text:
    Pan World Construction Corp., Respondent, v 791 Park Avenue Corp., Defendant and Third-Party Plaintiff-Appellant, et al., Defendants. Brown, Harris, Stevens, Inc., Third-Party Defendant-Respondent.
    Submitted September 28,1992;
    decided November 19, 1992
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which dismissed defendant’s appeal from so much of Supreme Court’s February 6, 1992 order as denied defendant’s motion for reargument, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    31-33 Lenox Avenue Wine & Liquor Corp., Appellant, v Richard Brueckner, on Behalf of New York Property Insurance Underwriting Association, Respondent.
    Submitted October 5,1992;
    decided November 19, 1992
   Motion to dismiss the appeal taken as of right granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no appeal lies as of right from the Appellate Division order absent a two-Justice dissent on a question of law or the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    William P. Pahl Equipment Corp. et al., Appellants, v Henry Kassis et al., Respondents, et al., Defendants.
    Submitted September 21,1992;
    decided November 19, 1992
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as granted defendant’s postjudgment cross motion for sanctions denied, with $100 costs and necessary reproduction disbursements; motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Howard Shafer, as President of the New York State Public Employees Federation, AFL-CIO, et al., Respondents, v Edward V. Regan, as Comptroller of the State of New York, et al., Appellants, et al., Respondents.
    Argued October 20,1992;
    decided November 24, 1992

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General, Albany (Lew Millenbach, Jerry Boone and Peter H. Schiff of counsel), for appellants.

      Richard E. Casagrande, Albany (Nancy L. Burritt of counsel), for Howard Shafer, respondent.

      Peter Henner, Albany, for Warren Deitz and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that the impracticability of competitive testing for the position of Municipal Financial Analyst was not established. Nor did the record disclose any different or additional qualifications which would distinguish Municipal Financial Analysts from auditors placed in the competitive class. There was therefore no rational basis for the wholesale exemption of all Municipal Financial Analysts from civil service competitive examination (cf., Matter of Grossman v Rankin, 43 NY2d 493, 506 [court should not interfere where an argument can be made for either classification]). However, we do not join with the Appellate Division in suggesting that, assuming the existence of some additional qualifications for which it is impracticable to test, the Commission still would have been required to try to find a "middle ground” position. We express no view regarding the validity of the rule established in Matter of Condell v Jorling (151 AD2d 88).

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, with costs, in a memorandum.


author: Titone, J.

text:
    Album Realty Corp. et al., Appellants, v American Home Assurance Company, Respondent.
    Argued October 21,1992;
    decided November 24, 1992

      Zalman & Schnurman, New York City (Norman E. Frowley, Benjamin Zalman and Donna Russo of counsel), for appellants.

      Mound, Cotton & Wollan, New York City (John Mezzacappa and Bruce R. Kaliner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

American Home Assurance Company issued a builders risk insurance policy to plaintiff Album Realty Corp. covering a building plaintiff was constructing in New York City. The policy insured against "all risks of direct physical loss of or damage to the property insured from any external cause”. However, it expressly excluded from coverage loss or damage (1) "caused by or resulting from * * * extremes of temperature” or (2) "caused by * * * freezing”.

On December 24, 1989, a sprinkler head froze and ruptured, causing water to fill the subbasement of the insured premises to a depth of 13 feet. The flooding resulted in damage to mechanical and electrical equipment located in the subbasement and caused some structural damage to the building. After American Home rejected plaintiffs claim on the ground that the damage was caused by "extremes in temperature” and/or "freezing” and therefore excluded from coverage, plaintiff commenced this action seeking damages. The trial court granted plaintiff summary judgment as to liability, but the Appellate Division reversed and granted summary judgment in favor of defendant.

The question presented is whether the loss sustained by plaintiff is within the exclusionary clause relating to freezing. The answer depends on whether the parties contemplated that the exclusion would apply in a circumstance such as that presented; that is, did they expect a loss arising in this manner to be characterized as being caused by freezing? (See, Bird v St. Paul Fire & Mar. Ins. Co., 224 NY 47, 51.) The loss can be traced back to freezing, but "[w]e are to follow the chain of causation so far, and so far only, as the parties meant that we should follow it” (Goldstein v Standard Acc. Ins. Co., 236 NY 178, 183). In determining the intent of the parties, "[o]ur guide is the reasonable expectation and purpose of the ordinary business [person] when making an ordinary business contract” (see, Bird v St. Paul Fire & Mar. Ins. Co., 224 NY, at 51, supra).

Manifestly, the property damage would not have occurred in the absence of the freezing, as the Appellate Division concluded. However, we do not accept that Court’s determination that the freezing was the proximate, efficient and dominant cause of the flooding and water damage within the meaning of the exclusionary clause. As read by the ordinary and reasonable business person, a loss caused by freezing could not be found to incorporate a loss visibly occasioned by water damage by virtue of the mere fact that the presence of water can best be explained by the rupturing of a sprinkler head which had frozen. A reasonable business person would conclude in this case that plaintiffs loss was caused by water damage and would look no further for alternate causes (see, Home Ins. Co. v American Ins. Co., 147 AD2d 353, 354 [in insurance context, a causation inquiry does not trace events back to their "metaphysical beginnings”]). That only this most direct and obvious cause should be looked to for purposes of the exclusionary clause at issue becomes even more evident when the limited language of the clause, which excludes damage "caused by” freezing, is compared to the other exclusionary clauses, all of which use broader language, i.e., "caused by or resulting from”, "arising directly or indirectly from”, "directly or indirectly caused by” or "resulting from”, etc.

Because the facts are not in dispute and the inferences to be drawn are not in doubt, summary judgment as to liability should have been granted to plaintiff.

Titone, J.

(dissenting). I cannot join in the majority’s conclusion that the freezing of a sprinkler head in plaintiffs building was not the "proximate, efficient and dominant cause” of plaintiffs loss (majority mem, at 1010). Where the danger of property damage is the principal concern, it is not the subfreezing weather itself that poses the significant threat, but rather the harm that may result when inanimate objects are exposed to temperatures that they were not made to endure.

As any owner of a home or other property with running water knows, the risk of ruptured pipes is one of the primary hazards associated with freezing temperatures. Since water expands when it freezes, there is always a substantial risk that, as the temperature drops below 32 degrees Fahrenheit, inelastic water-bearing vessels will split or break apart, spilling their liquid contents onto the property and fixtures below. Thus, contrary to the majority’s conclusion, a clause in an insurance contract excluding damages caused by "extremes of temperature” or "freezing” could only be construed by a reasonable business person as applying to the water damage that inevitably ensues when water-bearing pipes freeze and burst. Indeed, as a matter of common sense and experience, such water damage may well be the chief peril that is contemplated by a clause referring to harms caused by freezing temperatures.

Inasmuch as the water damage in this case was clearly the "direct and obvious” product of the property’s exposure to subfreezing temperatures, it is irrelevant that other exclusionary clauses may have encompassed hazards that were related more remotely to the ultimate harm (see, majority mem, at 1011). Here, the exclusionary clause on which defendant insurer relies was unquestionably applicable, and, accordingly, the order of the Appellate Division granting defendant insurer summary judgment should be affirmed.

Acting Chief Judge Simons and Judges Kaye, Hancock, Jr., and Bellacosa concur in memorandum; Judge Titone dissents and votes to affirm in an opinion; Judge Smith taking no part.

Order reversed, etc.

       The Appellate Division found that the loss was caused by freezing. There is no evidence in the record to show that "extremes” of temperature, an arguably ambiguous term, existed on the day in question; temperatures below freezing might not be considered "extreme” in December. Moreover, American Home does not argue that the analysis under the extremes in temperature clause should be any different than that under the freezing clause. Consequently, we focus on the exclusionary clause relating to freezing.


text:
    The People of the State of New York, Respondent, v Virgilio Polanco, Appellant.
    Decided November 24, 1992

      APPEARANCES OF COUNSEL

      Irving Anolik, New York City, for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Gregory H. Mansfield 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 for the reasons stated in the memorandum of the Appellate Division (179 AD2d 531).

Concur: Acting Chief Judge Simons and Judges Kaye, Ti-tone, Hancock, Jr., and Bellacosa. Taking no part: Judge Smith.


text:
    In the Matter of Wheels, Inc., Respondent, v Parking Violations Bureau of the Department of Transportation of the City of New York et al., Appellants.
    Decided November 24, 1992

      APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City, New York City (Julian L. Kalkstein of counsel), for appellants.

      Proskauer Rose Goetz & Mendelsohn, New York City (Morton M. Maneker of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In Matter of Ryder Truck we declared that five identification elements, including plate type, on a parking ticket were mandatory, and the omission of one element required dismissal (Matter of Ryder Truck Rental v Parking Violations Bur., 62 NY2d 667). We now amplify that decision and hold that a misdescription of any of the five mandatory identification elements also mandates dismissal.

Acting Chief Judge Simons and Judges Titone, Hancock, Jr., Bellacosa and Weiss concur; Judges Kaye and Smith taking no part.

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

       Designated pursuant to NY Constitution, article VI, § 2.


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    The People of the State of New York, Respondent, v Michael L. Cerilli, Appellant.
    Submitted October 16,1992;
    decided November 24, 1992

      APPEARANCES OF COUNSEL

      Feldman & Feldman, Hauppauge (Arza Rayches Feldman and Steven A. Feldman of counsel), for appellant.

      William V. Grady, District Attorney of Dutchess County, Poughkeepsie (Bridget Rahilly Steller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating the sentence of probation under superior court information 320/89 and remitting the case to County Court for resentencing in accordance with this memorandum and, as so modified, affirmed.

On May 7, 1989, defendant attempted to cash a stolen check at the Arlington Bar and Grill in Poughkeepsie. In an unrelated incident occurring five months later at the Junction Tavern, also in Poughkeepsie, defendant obtained a small amount of cocaine and split it with an undercover officer. On December 21, 1989, defendant waived indictment and pleaded guilty to the two pending superior court informations, and was sentenced on February 20, 1990 to one year in Dutchess County Jail for the stolen check charge and five years’ probation for the drug possession.

Defendant appealed, claiming that probation was illegal under Penal Law § 65.00 (1), which provides that

"the court shall not, except to the extent authorized by [Penal Law § 60.01 (2) (d)], impose a sentence of probation in any case where it sentences a defendant for more than one crime and imposes a sentence of imprisonment for any one of the crimes.”

The Appellate Division rejected defendant’s argument, holding that the statute applies only when the crimes are charged in a single accusatory instrument. The court’s conclusion was based on the statutory words "in any case,” which it read to require a single "case,” or accusatory instrument.

"In any case” is among the most common phrases in the Penal and Criminal Procedure Laws. The correct reading of the phrase may be gleaned, for example, in CPL 220.35, which provides: "In any case where the defendant offers to enter a plea of guilty [to] a misdemeanor to constitute a disposition of the entire indictment or to constitute a complete disposition of one or more other indictments”. (Emphasis added.) Manifestly, "in any case” refers to "in any instance” rather than to a single accusatory instrument.

That there is no single-accusatory-instrument requirement is confirmed by the legislative history:

"The proposed subdivision does not permit use of the sentence of probation where the court imposes a sentence of imprisonment for some other crime
* * * The use of the sentence would be improper in [this] situation because its basic purpose is to provide a method of supervising offenders without removing them from the community * * * If the court decides to withhold additional imprisonment
* * * it can impose a concurrent sentence, or, where authorized, conditional or absolute discharge.” (Commn Staff Notes, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] § 25.00 [1], at 262.)

As the Commission indicated, probation is inappropriate for defendants being imprisoned because the "basic purpose” of probation is to provide supervision without removing offenders from the community. This rationale applies with equal force whether defendant is sentenced for related crimes contained in a single accusatory instrument or unrelated crimes charged in separate instruments. So long as defendant is imprisoned for "some other crime” the Legislature did not authorize probation as a sentencing option.

Defendant’s remaining contention is unpreserved for our review.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

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

       As enacted in 1965, the Penal Law did not authorize a "split sentence” of probation and imprisonment, and thus the bar of Penal Law § 65.00 (1) was absolute. The Legislature subsequently authorized split sentences in limited circumstances not present here (see, L 1974, ch 835, § 1 [adding Penal Law § 60.01 (2) (d)]; § 2 [conforming amendment to Penal Law § 65.00 (1) ]; L 1980, ch 86, § 1; L 1982, ch 65, § 1 [each amending Penal Law § 60.01 (2) (d)]).


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    The People of the State of New York, Respondent, v Alfred Paccione, Appellant.
    Decided November 24, 1992
    APPEARANCES OF COUNSEL

      Joseph V DiBlasi, Forest Hills, for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (David J. Mudd of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

As a result of an investigation of illegal gambling activities, police officers of the Manhattan South Public Morals Division executed a search warrant at a Manhattan commercial office space. Upon entering the room, the officers discovered defendant Alfred Paccione, among others, seated at a table and speaking on a telephone. The telephone was connected to tape recorders on the floor. On the table were five telephones, a validator clock, line and tally sheets, and piles of completed time-stamped betting slips. While in the room, the officers answered the telephones; the calls were from prospective bettors. Defendant was subsequently convicted of promoting gambling in the first degree, possession of gambling records in the first degree, and possession of a gambling device.

Based on the above, we conclude that a rational trier of fact could find defendant guilty beyond a reasonable doubt. People v Rossi (80 NY2d 952) is distinguishable inasmuch as the incriminating evidence there was obtained as a result of an illegal arrest and no such circumstances exist here.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

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


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    George A. Berry, Appellant, v John Does, Respondent.
    Submitted November 16,1992;
    decided November 24, 1992
   Appeal, insofar as taken from the Appellate Division order dismissing plaintiffs appeal to that Court, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question and, insofar as taken from the Appellate Division order denying plaintiffs motion for permission to proceed as a poor person, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that order does not finally determine the action within the meaning of the Constitution.


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    In the Matter of Arlene C. Carella, Respondent, v Charles E. Collins, III, Appellant.
    Submitted November 16,1992;
    decided November 24, 1992
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 M [2]).


text:
    John Castellano, Respondent-Appellant, v City of New York, Appellant-Respondent.
    Submitted October 13,1992;
    decided November 24, 1992
   Motion for leave to appeal denied. Cross motion for leave to appeal dismissed upon the ground that plaintiff, having stipulated to a reduction in the amount of damages to which he is entitled, is not a party aggrieved (see, Dudley v Perkins, 235 NY 448, 457).


text:
    Incorporated Village of Atlantic Beach, Appellant, v Artemios Gavalas, Respondent.
    Submitted October 19,1992;
    decided November 24, 1992
   Motion for reargument granted and, upon reargument, motion for leave to appeal granted. [See, 80 NY2d 924.]


text:
    Kenford Company, Inc., Appellant, v County of Erie et al., Respondents.
    Submitted August 31,1992;
    decided November 24, 1992
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see, Cohen and Karger, Powers of the New York Court of Appeals § 36 [c]; § 78, at 337-338).

Acting Chief Judge Simons and Judge Hancock, Jr., taking no part.


text:
    In the Matter of Andre Melette, Appellant, v Carl D. Berry, as Superintendent of Woodbourne Correctional Facility, Respondent.
    Submitted August 31,1992;
    decided November 24, 1992
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    John H. Park et al., Appellants, v Capital Cities Communication, Inc., et al., Defendants, and Kenneth V. Klementowski et al., Respondents.
    Submitted September 28,1992;
    decided November 24, 1992
   Motion by defendant Buffalo Ophthalmologic Society to dismiss appeal taken as of right against said defendant granted and appeal dismissed, without costs, upon the ground that, as to that defendant, the order appealed from does not finally determine the action within the meaning of the Constitution. Motion by defendant Klementowski to dismiss appeal taken as of right against said defendant granted and appeal dismissed, without costs, upon the ground that, as to that defendant, no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Howard Hughes, Appellant.
    Submitted October 19,1992;
    decided November 24, 1992
   Motion for leave to appeal dismissed upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (CPLR 5601, 5602; CPL 450.90; see, People v Tramell, 77 NY2d 893).


text:
    The People of the State of New York, Appellant, v David Maynard, Respondent.
    Decided November 24, 1992
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Respondent, v Gary Mongen, Appellant.
    Submitted September 21,1992;
    decided November 24, 1992
   Motion to vacate this Court’s order of «December 27, 1990 dismissing defendant’s appeal denied. [See, 76 NY2d 1015.] Judge Smith taking no part.


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    Board of Education of Bloomfield Central School District, Respondent, v Christa Construction, Inc., Appellant, et al., Defendants.
    Argued October 20,1992;
    decided November 18, 1992

      APPEARANCES OF COUNSEL

      Emstrom & Estes, Rochester (J. William Ernstrom of counsel), for appellant.

      Charles A. Hall, Webster (Elizabeth H. Marvald of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant, Christa Construction, Inc., entered into a contract with respondent Board of Education to perform extensive school improvements. The contract, amended by numerous change orders, has been substantially performed and appellant seeks arbitration of disputed claims concerning contract balance, change orders and extras. The School District resists arbitration on public policy grounds, citing Education Law § 1718 (1). It claims that the contract is void because the Board’s agreement with respect to the change orders, if enforced through an arbitration, would result in an expenditure by the Board in excess of amounts lawfully appropriated.

Supreme Court denied the Board’s motion for a stay and ordered arbitration, but the Appellate Division reversed and stayed arbitration. We granted leave to appeal and reverse to reinstate the order of Supreme Court.

This Court has repeatedly held that arbitration is a favored method of dispute resolution in New York (Matter of Weinrott [Carp], 32 NY2d 190, 199; see also, Sablosky v Gordon Co., 73 NY2d 133, 138), and "New York courts interfere 'as little as possible with the freedom of consenting parties’ to submit disputes to arbitration” (Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 93).

While arbitration may be challenged on public policy grounds (Hirsch v Hirsch, 37 NY2d 312, 315), that is a limited exception. The instant case does not qualify for the application of the exception (Matter of Port Wash. Union Free School Dist. v Port Wash. Teachers Assn., 45 NY2d 411, 418; see also, Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660).

Acting Chief Judge Simons and Judges Kaye, Titone, Bellacosa and Smith concur in memorandum; Judge Hancock, Jr., taking no part.

Order reversed, etc.