author: Meyer, J.

text:
    Hartford Accident and Indemnity Company, Individually and as Subrogee of L.A.D. Associates, Inc., and Another, Respondent, v Michigan Mutual Insurance Co., Appellant, et al., Defendant, and Montfort, Healy, McGuire and Salley et al., Respondents.
    Argued March 22, 1984;
    decided May 3, 1984

      POINTS OF COUNSEL

      Kevin B. Lynch, Asher Marcus and Peter James Johnson for appellant.
    I. As a matter of law, Hartford’s payment to Mr. and Mrs. Gobin of the amount required under the terms of the settlement agreement of July 13-14,1981 was voluntarily made and, therefore, was not recoverable from Michigan. (Yonkers Fur Trading Co. v Royal Ins. Co., 247 NY 435; Trojcak v Wrynn, 45 AD2d 770; Flower v Lance, 59 NY 603; Forrest v Mayor of N. Y., 13 Abb Prac 350; Neufeld v City of New York, 93 App Div 591; Kienle v Gretsch Realty Co., 133 App Div 391; Matthews v Frank Brewing Co., 26 Misc 46; Felder v Old Falls Sanitation Co., 39 NY2d 855; Page v State of New York, 56 NY2d 604; Long v Forest-Fehlhaber, 55 NY2d 154.) II. Assuming, arguendo, that because of Mr. Berels’ announcement after the terms of settlement were spread on the court record the Yonkers Fur Trading doctrine was inapplicable, Michigan, nevertheless, committed no wrong against L.A.D. and DeFoe by ignoring Hartford’s demand that D.A.L. be impleaded into Gobins’ Supreme Court action. (Raleigh Assoc. v Henry, 302 NY 467; Madawick Contr. Co. v Travelers Ins. Co., 307 NY 111; Sullivan Co. v International Paper Makers Realty Corp., 307 NY 20; Harris v Allstate Ins. Co., 309 NY 72; Leaseway. of Cent. N. Y. v Climax Mfg. Co., 54 NY2d 822; Gorhan v Arons, 282 App Div 147, 306 NY 782; Long Is. R.R. Co. v Interboro Mut. Ins. Co., 84 AD2d 809; Beck v Renahan, 46 Misc 2d 252, 26 AD2d 990; Vescera v Dancy, 52 Misc 2d 830.)

      Steven B. Prystowsky for Hartford Accident and Indemnity Co., respondent.
    I. Hartford properly reserved its right to proceed against the parties in this action when it stipulated to settle the underlying cause of action. In any event, it is a question of fact which cannot be determined by affidavits. (Stevenson v News Syndicate Co., 302 NY 81; Town of Poland v Transamerica Ins. Co., 53 AD2d 140.) II. The court below correctly denied Michigan Mutual’s motion to dismiss Hartford’s complaint because Hartford stated a cause of action for bad faith. (St. Paul Fire & Mar. Ins. Co. v United States Fid. & Guar. Co., 43 NY2d 977; Brown v United States Fid. & Guar. Co., 314 F2d 675; Vencill v Continental Cas. Co., 433 F Supp 1371; Cornwell v Safeco Ins. Co., 42 AD2d 127; Dole v Dow Chem. Co., 30 NY2d 143; Tallarico v Long Is. Light. Co., 45 AD2d 845; Biss v Town of Conquest, 45 AD2d 914; Farrell v Royal Crown Bottling Co., 72 AD2d 531, 53 NY2d 619; Berardi v Getty Refining & Marketing Co., 107 Misc 2d 451; Fidelity Gen. Ins. Co. v Aetna Ins. Co., 27 AD2d 932.)
   OPINION OF THE COURT

Meyer, J.

An insurer which carries both the general liability coverage and the workers’ compensation coverage of three affiliated companies may be liable, when an employee of one of the companies sues the other two for injuries incurred in the course of his employment, for failure to comply with the demand of the excess carrier for the same three companies that the two companies sued implead the employer company, if the primary carrier cannot show a good-faith basis for its refusal. The order of the Appellate Division should, therefore, be affirmed, with costs.

Michigan Mutual Insurance Co. insured DeFoe Corporation and its two subsidiaries, L.A.D. Associates, Inc., and D.A.L. Construction Corporation, under a general liability policy with coverage of $1,000,000. It was also the workers’ compensation insurer for the same three companies. Hartford Accident and Indemnity Co. provided excess coverage of $5,000,000 to the same three companies. An employee of D.A.L. (Davor Gobin) was injured in the course of his employment. Though prevented by the exclusivity provision of the Workers’ Compensation Law (§ 11) from suing D.A.L., Gobin began a negligence action against DeFoe and L.A.D. Notwithstanding that Hartford, as excess carrier, demanded that D.A.L. be impleaded in the Gobin action, Michigan Mutual and the attorneys representing it failed to do so. The Gobin action was settled for $1,400,000, Hartford paying $400,000, but as part of the settlement proceeding stating that it reserved the right to pursue any remedies against Michigan Mutual.

Hartford then began the present action against Michigan Mutual and the law firm which at its behest represented DeFoe and L.A.D. in the Gobin action. Involved on this appeal are only the fourth through seventh causes of action against Michigan Mutual for inducing breach by DeFoe of the cooperation clause of Hartford’s policy, for inducing a like breach by L.A.D., for bad faith in failing to cause D.A.L. to be impleaded in the Gobin action, and for conspiracy to deprive DeFoe and L.A.D. of an adequate defense and representation in the Gobin action by not impleading D.A.L. Michigan Mutual moved for summary judgment as to those causes of action. Special Term treated the motion as one to dismiss and dismissed insofar as the causes of action were stated to be in favor of Hartford in its individual capacity but otherwise denied. On appeal the Appellate Division dealt with the motion as one for summary judgment but found triable issues of fact and, one Justice dissenting, modified by reinstating the causes of action by Hartford in its individual capacity and otherwise affirmed. It also granted Michigan Mutual’s motion for leave to appeal and certified to us the question whether its order was properly made.

Michigan’s contention that the cooperation clause of the Hartford policy did not obligate DeFoe and L.A.D. to implead D.A.L. is. based upon American Sur. Co. v Diamond (1 NY2d 594). The subrogation clause in the policy there involved (see 1 NY2d, at p 598) contained no agreement giving rise to an obligation to implead. Hartford’s policy, however, obligated its insured to “enforce any right of contribution or indemnity against any person or organization who may be liable to the insured”.

Michigan’s reliance on the rule that an insurer may not maintain a subrogation action against its own insured is likewise misplaced for that rule speaks to an insured under the same policy. Here Michigan Mutual provided two policies, one a general liability policy and the second a compensation policy which covered not only D.A.L.’s obligations under the Workers’ Compensation Law, but also under paragraph 1(B) of the standard policy required Michigan to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident * * * by any employee of the insured arising out of and in the course of his employment by the insured” (4 Larson, Workmen’s Compensation Law, Appendix E-2-1). Michigan Mutual would, therefore, under its compensation policy, be obligated to defend D.A.L. had it been impleaded in the Gobin action and to indemnify D.A.L. against payment of damages on the impleaded cause of action should it be held liable. That obligation would arise, however, not under the liability policy under which it was defending DeFoe and L.A.D., but under the separate compensation coverage of D.A.L.

Moreover, Michigan Mutual as the primary liability insurer owed to Hartford as the excess carrier the same duty to act in good faith which Michigan owed to its own insureds, DeFoe and L.A.D. (St. Paul Fire & Mar. Ins. Co. v United States Fid. & Guar. Co., 43 NY2d 977; see 2 NY PJI 243 [1983 Supp]). Whether Michigan Mutual acted, as it claims, in the interest of protecting its insureds against the harassment of multiple claims, or in its own interest so as to activate Hartford’s excess liability without having to share in or substitute for that liability as the insurer under the 1(B) coverage of its compensation policy is, therefore, a question to be determined upon trial of the action rather than on motion for summary judgment, as also is the question whether Hartford’s payment was “voluntary” (cf. Trojcak v Wrynn, 45 AD2d 770).

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

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

Order affirmed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Duane Moore, Appellant.
    Argued March 23, 1984;
    decided May 3, 1984

      POINTS OF COUNSEL

      Spiros A. Tsimbinos and Todd Greenberg for appellant.
    I. The court below improperly disregarded relevant factors in imposing sentence. (People v Hobson, 39 NY2d 479; People v Settles, 46 NY2d 154; People v Samuels, 49 NY2d 218; People v Cunningham, 49 NY2d 203; Williams v New York, 337 US 241; People v Farrar, 52 NY2d 302; People v Notey, 72 AD2d 279; People v Burgh, 89 AD2d 672, 94 AD2d 925.) II. The maximum sentence imposed of 32 years exceeded the limits of section 70.30 (subd 1, par [c]) of the Penal Law and was, therefore, illegal. (People v Zimmer, 88 AD2d 1031.)

      Denis Dillon, District Attorney (Denise Parillo and Anthony J. Gírese of counsel), for respondent.
    I. The court below properly exercised its sentencing function. (People v Felix, 58 NY2d 156; People v Gittelson, 18 NY2d 427, 681; People v Adams, 46 NY2d 1047; People v McGowan, 42 NY2d 905; People v Gurley, 42 NY2d 1086; People v Scott, 3 NY2d 148; People v Fuller, 57 NY2d 152; Gardner v Florida, 430 US 349; Williams v New York, 337 US 241.) II. Defendant was legally sentenced. (United States v Turkette, 452 US 576; Consumer Prod. Safety Comm. v GTE Sylvania, 447 US 102; People ex rel. Ternaku v LeFevre, 58 AD2d 932; People v Teti, 41 AD2d 841; People v Silvagnio, 79 AD2d 1112; People v Scricca, 51 AD2d 704; People v Creighton, 71 Misc 2d 370.)
   OPINION OF THE COURT

Per Curiam.

Although aggregate maximum terms of consecutive sentences imposed on defendant who was convicted of two crimes, one of which was a class B felony, exceeds 30 years, we hold that the sentences were not illegal requiring their modification or vacatur but that the maximum term of the consecutive sentences, 32 years, must be deemed to be 30 years.

Defendant pleaded guilty to rape in the first degree and assault in the second degree. He was sentenced to consecutive indeterminate terms of imprisonment of 8Vs to 25 years and 2Vs to 7 years, respectively.

On this appeal, defendant argues that the maximum sentence imposed of 32 years exceeded the limits of section 70.30 (subd 1, par [c]) of the Penal Law and was, therefore, illegal. In pertinent part, subdivision 1 of section 70.30, at the time that the defendant was sentenced, provided:

“1. Indeterminate sentences. An indeterminate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the state department of correctional services. Where a person is under more than one indeterminate sentence, the sentences shall

be calculated as follows:

% % %

“(b) If the sentences run consecutively, the minimum periods of imprisonment are added to arrive at an aggregate minimum period of imprisonment equal to the sum of all the minimum periods, and the maximum terms are added to arrive at an aggregate maximum term equal to the sum of all the maximum terms, provided, however, that both the aggregate maximum term and the aggregate minimum period of imprisonment shall be subject to the limitations set forth in paragraphs (c) and (d) of this subdivision, where applicable;

“(c) The aggregate maximum term of consecutive sentences imposed for two or more crimes, other than two or more crimes that include a class A felony, committed prior to the time person was imprisoned under any of such sentences shall, if it exceeds twenty years, be deemed to be twenty years, unless one of the sentences was imposed for a class B felony, in which case the aggregate maximum term shall, if it exceeds thirty years, be deemed to be thirty years. Where the aggregate maximum term of two or more consecutive sentences is reduced by calculation made pursuant to this paragraph, the aggregate minimum period of imprisonment, if it exceeds one-half of the aggregate maximum term as so reduced, shall be deemed to be one-half of the aggregate maximum term as so reduced”. (Emphasis supplied.)

In People v Zimmer (88 AD2d 1031), the Third Department interpreted these provisions to mean that where the aggregate maximum sentence exceeds 30 years, the sentence is illegal and must be vacated. Contrawise, the Second Department in this case held that the statute only governs the maximum sentence release date, but otherwise does not require that the entire sentence be voided. We agree.

Where the aggregate maximum term of consecutive sentences imposed for convictions of two or more crimes exceeds the applicable limitation set forth in section 70.30 (subd 1, par [c]) of the Penal Law, the term shall be “deemed” to be equal to that limitation and “reduced” accordingly. The statute does not restrict the number or length of the individual consecutive sentences that may be imposed, nor does it require that the resulting aggregate sentence be vacated whenever the aggregate maximum exceeds the limitation. Rather, as observed by the Appellate Division, it merely requires that the Department of Correctional Services calculate the aggregate maximum length of imprisonment consistent with the applicable limitation.

Here, where defendant was convicted of two crimes, one of which was a class B felony, the statute mandates that the resulting aggregate maximum term of imprisonment of 32 years be deemed to be 30 years. As thus reduced, the sentence falls within the statutory limitations and was correctly affirmed by the Appellate Division.

Defendant’s other contentions are without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order affirmed.


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Ronald Mitchell, Appellant.
    Argued March 28, 1984;
    decided May 8, 1984

      POINTS OF COUNSEL

      Richard A. Insogna for appellant.
    I. The Town Justice in the trial court was not impartial and acted erroneously and contrary to the decisions of this court when she failed to insure and safeguard appellant’s right to counsel and right to due process of law through the making of a “searching inquiry” which sufficiently and reasonably assured that appellant appreciated the dangers and disadvantages of giving up the fundamental right to counsel before she allowed him to proceed in said fashion. (People v Settles, 46 NY2d 154; People v White, 56 NY2d 110; People v Sawyer, 57 NY2d 12.) II. The holding of this court in People v White (56 NY2d 110) should additionally be examined in light of the facts involved in this action, when it is considered that the offenses filed in the trial court were criminal in nature, carried the possible imposition of imprisonment, and in fact resulted in the imprisonment of appellant. III. The Town Justice in the trial court below acted both partially and erroneously in acting in a capacity which fairly could be classified as one of a prosecutor in passing sentence and denying youthful offender adjudication to appellant. IV. The acts committed by appellant which were alleged to support the accusatory instrument which is the subject of this appeal, do not support said offense; the accusatory instrument is therefore jurisdictionally defective and should be dismissed by this court. (People v McGuire, 5 NY2d 523; People v Sambounis, 251 NY 94; People v Case, 42 NY2d 98; People v Harper, 37 NY2d 96; People v Mehdi, 29 NY2d 824; People v Munafo, 50 NY2d 326; People v Pritchard, 27 NY2d 246.) V. The denial of youthful offender adjudication to appellant by the trial court, while discretionary, constituted an abuse of discretion. (People v Cecil Z., 57 NY2d 899.)

      JohnB. Poersch, District Attorney {Alfred D. Chapleau of counsel), for respondent.
    I. Defendant-appellant’s right to counsel and to due process of law were protected by the Trial Justice and defendant-appellant made a willful and knowing waiver of his right to counsel prior to the entry of his plea of guilty. (People v White, 56 NY2d 110; People v Sawyer, 57 NY2d 12; Scott v Illinois, 440 US 367; People v Farinaro, 36 NY2d 283.) II. The Town Justice involved here, at all times, conducted herself in a judicious manner. III. The accusatory instrument to which defendant-appellant pleaded guilty was legally and factually sufficient. (People v Kazmarick, 52 NY2d 322; People v Cohen, 52 NY2d 584; People v Iannone, 45 NY2d 589.) IV. The denial of youthful offender status by the trial court was well within the trial court’s discretion and such discretion was properly exercised.
   OPINION OF THE COURT

Jasen, J.

Once defendant has indicated an interest in having counsel assigned during a criminal proceeding, a defendant may waive such counsel in the presence of a neutral magistrate, but only where the court has first undertaken a sufficient inquiry to insure that defendant appreciates the dangers and disadvantages inherent in giving up his right to counsel.

In the early hours of a cold winter’s morning, defendant, a 17-year-old male who had briefly left home on foot after a familial argument, telephoned the State Police and misrepresented that he had been involved in an automobile collision with a deer. Upon the arrival of State troopers and their discovery of defendant’s ploy, defendant was arrested and charged with falsely reporting an incident in the third degree (Penal Law, § 240.50, subd 1) and obstructing governmental administration (Penal Law, § 195.05). Defendant appeared in Justice Court, Town of Duanesburg, for arraignment and pleaded not guilty to both charges. A few weeks later, defendant reappeared with his mother, elected to proceed without counsel, and entered pleas of guilty to the informations. Thereafter, a probation report was prepared and the Town Justice denied youthful offender adjudication and imposed two definite sentences of imprisonment to be served consecutively, to wit: 60 days for falsely reporting an incident and 90 days for obstructing governmental administration. Defendant was committed to the custody of the Schenectady County Sheriff and began serving the sentence. Subsequently, defendant’s mother contacted her personal attorney who inquired of the Town Justice whether the court would entertain a motion to permit defendant to withdraw his previous pleas, but the court was not inclined to do so.

Defendant appealed the convictions to the County Court of Schenectady County and was released on bail, as he has since remained throughout the appeals process. On the People’s request, County Court dismissed the charge for obstructing governmental administration as jurisdiction-ally defective and vacated the conviction and sentence imposed thereon. However, the court affirmed defendant’s conviction and sentence for falsely reporting an incident, rejecting each of defendant’s challenges, including the claim that waiver of counsel was ineffective. In upholding the conviction, the court held that the Town Justice, after having twice advised defendant that he was entitled to counsel and to the appointment of one if he could not afford to retain his own, was justified in permitting the defendant to forego the assistance of counsel. On that critical point we disagree.

The record before us, including defendant’s affidavit of errors and the Town Justice’s return summarizing the proceeding in the trial court, reveals no colloquy between the Town Justice and the defendant sufficient to insure that the defendant knowingly and intelligently waived his constitutional right to counsel before pleading guilty to the charges against him. (Matter of Lawrence S., 29 NY2d 206, 208; People v Seaton, 19 NY2d 404, 406; see, also, Johnson v Zerbst, 304 US 458, 465; People v Gina M, M., 40 NY2d 595, 597; cf. People v Harris, 61 NY2d 9, 19.) The record, although not entirely clear, indicates that on February 17, 1982, defendant initially informed the Town Justice of his interest in having counsel assigned, and that the Town Justice noted the following on the arraignment memorandum: “Court to assign attorney after consulting with ADA Callahan — if necessary. Adjourned to 3/3/82”. Subsequently, however, upon his reappearance in court on the second adjourned date (March 17,1982) and after consultation with his mother, defendant pleaded guilty in the absence of counsel, the Town Justice merely noting on the arraignment memorandum that “defendant and mother did not want attorney assigned”.

As this court has previously held, a defendant may be permitted to proceed without the presence of previously retained counsel, but only after the trial court has first undertaken a sufficient inquiry to insure that the defendant appreciates the dangers and disadvantages inherent in proceeding by himself. (People v White, 56 NY2d 110, 117.) Likewise, once a defendant has indicated an interest in counsel being assigned, the Trial Judge may not accept the defendant’s subsequent waiver of right to counsel and plea of guilty unless the Judge has made an adequate inquiry of the defendant to determine whether the defendant understands the risks and consequences of his actions. (Cf. People v Gina M. M., supra, at p 597; see, also, People v Kaltenbach, 60 NY2d 797, 798; People v Sawyer, 57 NY2d 12, 21.)

So judged, we hold that the record before us does not support a finding that defendant’s waiver of counsel was effective. Nowhere do we find in the record that the Town Justice made any precautionary inquiry to insure that defendant, in waiving counsel, appreciated the value of being represented by counsel and the difficulties and pitfalls of proceeding without one. All that the record discloses is that the defendant was informed by the Town Justice that he was entitled to be represented by counsel and that one would be appointed if he could not afford one. More than that was required to have an effective waiver of counsel.

Accordingly, the judgment of conviction, plea of guilty and sentences imposed should be vacated. The order of Schenectady County Court appealed from should be reversed, and the case remitted to the Town of Duanesburg Justice Court for further proceedings on the information which was legally sufficient. In so deciding, we need not reach defendant’s other contentions.

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

Order reversed and case remitted to the Town of Duanesburg Justice Court for further proceedings on the information.


author: Simons, J.

text:
    The People of the State of New York, Respondent, v Manuel Antonio Gonzalez, Appellant.
    Argued March 19, 1984;
    decided May 8, 1984

      POINTS OF COUNSEL

      Richard Hamburger for appellant.
    The sentencing court’s determination that defendant was a predicate felon was erroneous as a matter of law. (People v Olah, 300 NY 96; People v Augle, 87 AD2d 348; People v Kruszeski, 87 AD2d 638; People v Le Grand, 81 AD2d 945; People v Martin, 81 AD2d 765; People v Brooks, 73 AD2d 564; People ex rel. Gold v Jackson, 5 NY2d 243; People ex rel. Goldman v Denno, 9 NY2d 138; People v Green, 56 NY2d 427; People v Tucker, 55 NY2d 1.)

      Carl A. Vergari, District Attorney (Terry Jane Ruder-man, Gerald D. Reilly and Anthony J. Servino of counsel), for respondent.
    Nisi prius correctly determined that appellant was a predicate felon within the meaning of section 70.06 (subd 1, par [b], cl [i]) of the Penal Law. (People ex rel. Goldman v Denno, 9 NY2d 138; People ex rel. Gold v Jackson, 5 NY2d 243; People v Kruszeski, 87 AD2d 638; People v Fonseca, 36 NY2d 133; People v Foster, 19 NY2d 150.)
   OPINION OF THE COURT

Simons, J.

Defendant has been sentenced as a second felony offender by Supreme Court, Westchester County. The sentence is predicated upon a prior Florida judgment, entered after a jury trial on a 10-count amended information, in which the jury convicted defendant of lesser included offenses. Defendant contends that the Florida convictions do not satisfy the New York tests for predicate felonies and he seeks resentence as a first offender.

On September 23,1981, defendant pleaded guilty in New York to a criminal sale of a controlled substance (Penal Law, § 220.39), a class B felony, in full satisfaction of a multicount indictment charging him with other narcotic offenses. Prior to sentencing, the People lodged a predicate felony statement against him. Attached to it was the Florida amended information, dated May 7,1976, charging defendant and two others with the crimes of attempted robbery (counts 1 and 2); aggravated assault (counts 3, 4, 7 and 8); aggravated battery (counts 5, 6 and 10) and shooting into an occupied building (count 9). Following a jury trial on the charges defendant was found guilty of two counts of aggravated assault as lesser included offenses of attempted robbery, aggravated assault without a firearm as a lesser included offense of the aggravated assault as charged in count 7 and aggravated assault as charged in count 8.

After reviewing the judgment and the accusatory instrument Supreme Court concluded that defendant’s convictions under counts 1 and 2 of the Florida information constituted predicate felony convictions within the meaning of section 70.06 (subd 1, par [b], cl [i]) of the New York Penal Law and sentenced him as a second felony offender to an indeterminate term of imprisonment of 4V2 to 9 years. It reasoned that the offense of aggravated assault as alleged in those counts corresponded to the New York felony of attempted robbery in the third degree (see Penal Law, § 160.05). The court viewed the remaining two counts of aggravated assault as New York misdemeanors. The Appellate Division affirmed, without opinion.

There should be a reversal. It cannot be determined by a comparison of the relevant statutes of the two States or from an examination of the Florida accusatory instrument whether the Florida jury, in convicting defendant of aggravated assault as lesser included offenses of attempted robbery, found that defendant had committed acts which would constitute a felony in New York.

For purposes of sentencing, a prior out-of-State conviction is a predicate felony conviction in New York when the foreign conviction carries with it a sentence of imprisonment in excess of one year and a sentence in excess of one year is also authorized for the offense in this State (Penal Law, § 70.06, subd 1, par [b], cl [i]). Because New York only permits terms of imprisonment in excess of one year for felony convictions, the statute requires that the conviction be for a crime whose elements are equivalent to those of a New York felony. To determine whether a foreign crime is equivalent to a New York felony the court must examine the elements of the foreign statute and compare them to an analogous Penal Law felony, for “[i]t is the statute upon which the indictment was drawn that necessarily defines and measures the crime” (see People v Olah, 300 NY 96, 98). The crime cannot be extended or enlarged by allegations in the indictment or by referring to evidence at trial.

Applying this standard, the sentencing court found that the elements of the Florida crime of aggravated assault corresponded with the New York felony of attempted robbery in the third degree. A review of the statutes defining the lesser included offenses of which defendant was convicted does not support its conclusion.

Section 784.021 of the Florida Statutes Annotated defines the crime of aggravated assault, which is a simple misdemeanor assault and then elevates it to a felony if committed: (a) with a deadly weapon without intent to kill; or (b) with an intent to commit a felony. Aggravated assault involving a “deadly weapon” as set forth in the first subdivision is not equivalent to a New York weapon possession felony because our Penal Law requires the possession of a “loaded firearm” (Penal Law, § 265.02, subd [4]), whereas the Florida crime involving “a deadly weapon” does not (Fla Stats Ann, § 790.001, subd [13]). Nor, as the sentencing court found, is aggravated assault with a “deadly weapon” equivalent to other analogous New York felonies. It is not equivalent to the felony of assault in New York (Penal Law, §§ 120.05, 120.10) because the Penal Law requires the additional element of “physical injury” or “serious physical injury” (Penal Law, §§ 120.00, 120.05, 120.10) and it does not correspond to “attempted assault” because that felony requires an “intent” to cause physical injury or serious physical injury (Penal Law, § 110.00). Therefore aggravated assault with a deadly weapon as defined in subdivision (a) of the Florida statute cannot serve as the basis for a predicate felony conviction in defendant’s case.

The second category of the Florida statute, aggravated assault with intent to commit a felony, may be equivalent to the New York felony of robbery or attempted robbery, and therefore a predicate felony conviction, if the felony referred to in the statute corresponds to the forcible taking of property from the victim’s person (compare Penal Law, § 160.00). The sentencing court and the Appellate Division evidently assumed that this was the case. In doing so, the sentencing court relied not only upon the statute which defined the crimes of which defendant was convicted, as Olah directs (People v Olah, 300 NY 96, supra), but also the accusatory instrument defining the crime with which he was charged. Noting that the amended information charged robbery, the court decided the conviction was for aggravated assault with the intent to commit the felony of robbery.

As an exception to the Olah rule we have permitted a sentencing court to go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction where the statute renders criminal not one act but several acts which, if committed in New York, would in some cases be felonies and in others would constitute only misdemeanors (see People ex rel. Goldman v Denno, 9 NY2d 138, 140; People ex rel. Gold v Jackson, 5 NY2d 243). Thus, in Jackson, defendant was charged with violating a statute which defined the offense by means of two separate and unrelated acts — breaking into a building with intent to commit a felony or breaking out of a building having entered with intent to commit a felony. The act of breaking in constituted a felony under New York law whereas the act of breaking out was a misdemeanor. Similarly, in Denno, defendant pleaded guilty to a Federal indictment, charging the violation of a statute which proscribed acts which in some instances constituted felonious conduct under New York law and in others did not. In doing so, defendant admitted the commission of an act constituting a felony (drug sale) and neither admitted nor denied the acts which were not felonies (drug possession, transportation, etc.). The judgment entered referred to defendant’s unlawful sale of drugs. Because the accusatory instrument clarified the charge in Jackson as breaking in, a New York felony, the conviction was counted as a predicate felony; because the accusatory instrument did not clarify the crime in Denno, the conviction could not be counted, notwithstanding defendant’s inculpating statement at the plea taking that he had sold drugs and the similar description of the crime in the judgment. The teaching of these cases is that the allegations of the accusatory instrument may be referred to when necessary to clarify the statutory charge, to limit or narrow the basis for the conviction, but they may not be used to enlarge or expand the crime charged.

This case is similar to Denno and Jackson because the statute of which defendant stands convicted is so broad that it proscribes conduct which in New York could be either a felony or a misdemeanor. It differs from those cases because the nature of the offense cannot be resolved by referring to the accusatory instrument. That is so because defendant was not convicted of the offenses stated in the information but rather of lesser included offenses, because the allegations of the information could support a finding of either assault with a deadly weapon or assault with intent to commit a felony, and because neither of the crimes defined in those two aggravated assault subdivisions sets forth elements which we may determine are the equivalent of a New York felony. Thus on this record it is not possible to resolve which facts alleged in the information were accepted by the jury and which were “nonoperative” (see People v Olah, 300 NY 96, supra). The jury could have found that defendant had committed aggravated assault either with a “deadly weapon” or with intent to commit a felony. If it found the latter we are still left without any basis upon which to determine what the felonious acts were and whether they constitute a felony in New York. Absent a review of the court’s instructions there is no way of knowing which theory of the crime the jury accepted (cf. People v Tucker, 55 NY2d 1) and the sentencing court should not have filled that, void by referring to the language of the original information.

Moreover, we have no assurance that Florida’s rule governing lesser included offenses is the same as our “theoretical impossibility” test (see People v Green, 56 NY2d 427, 430; see, also, CPL 1.20, subd 37; People v Glover, 57 NY2d 61). Indeed, it appears that its test is considerably more flexible and permits a charge down to a crime “which may or may not be included in the [greater] offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence” (Brown v State, 206 So 2d 377, 383 [Fla], mod Matter of Use by Trial Cts. of Std. Jury Instructions in Crim. Cases, 431 So 2d 594, 596-597 [Fla]; see, also, State v Anderson, 270 So 2d 353 [Fla]).

The statutory test for enhanced sentences is prescribed by the Legislature and our rules for implementing it have been settled for many years. The responsibility rests upon the prosecution to satisfy these requirements if it seeks additional punishment. If it is unable to do so because the record of the foreign conviction does not resolve the questions which must be answered before second offender status may be granted under New York law, then the court’s analysis is at an end and enhanced sentencing must be denied. There can be no resort to other parts of the record to fill the gaps (People v Olah, supra).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to Supreme Court, Westchester County, for resentencing of defendant as a first felony offender.

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

Order reversed and case remitted to Supreme Court, Westchester County, for resentencing of defendant in accordance with the opinion herein.

      . Section 70.06 of the Penal Law provides in pertinent part:
      “1. Definition of second felony offender.
      * * *
      “(b) For the purpose of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply:
      “(i) The conviction must have been in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed”.

      . Section 784.011 of the Florida Statutes Annotated defines an assault as “* * * an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”


text:
    In the Matter of the Arbitration between Gerald A. Cady, Respondent, and Aetna Life & Casualty Company, Respondent; Albert B. Lewis, as Superintendent of the Insurance Department, et al., Intervenors-Appellants.
    Decided May 8, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {Peter H. Schiff and Clifford A. Royael of counsel), for intervenors-appellants.

      William S. Yaus for Aetna Life & Casualty Company, respondent.

      Theodore J. Mlynarski, Jr., for Gerald A. Cady, respondent.
   OPINION OF THE COURT

Per Curiam.

At issue on this appeal is the validity of a regulation of the New York State Insurance Department limiting to 51 days the time to commence a proceeding pursuant to CPLR article 75 challenging a master arbitrator’s award under the No-Fault Insurance Law. The lower courts found the regulation invalid, as inconsistent with the 90-day limitations period provided by the Legislature in CPLR 7511 (subd [a]), and we now affirm.

Petitioner, a deputy sheriff, was injured during the course of his employment in a one-car accident. He received full salary during his absence from work up to February, 1980, and workers’ compensation benefits were found payable to his employer. Petitioner’s application for first-party benefits under article 18 of the Insurance Law proceeded through arbitration pursuant to subdivision 2 of section 675 of the Insurance Law, and ended with the master arbitrator’s supplemental award, dated September 17, 1981.

On December 15, 1981, petitioner commenced this proceeding under CPLR 7511 to vacate the award to the extent that it ordered that petitioner’s recovery be reduced by the workers’ compensation benefits. Among the grounds raised in opposition was that the article 75 proceeding was untimely under an Insurance Department regulation (11 NYCRR 65.17 [i] [2]) requiring written notice of intention to commence an article 75 proceeding within 21 days of mailing of the master arbitrator’s award and actual commencement of the proceeding within 30 days of the mailing of the notice of intention. The New York State Insurance Department and its Superintendent intervened in support of the validity of the regulation. Special Term declared the regulation invalid because it conflicted with CPLR 7511 (subd [a]), which permits an application to modify or vacate an arbitration award to be made within 90 days of its delivery. The court also found the offset improper and modified the arbitrator’s decision accordingly.

On appeal, the Appellate Division agreed that the limitations period of the insurance regulation was invalid but modified the lower court’s order by holding the offset proper. Although petitioner has not appealed from this determination, the intervenors were granted permission to appeal and challenge only that portion of the Appellate Division’s order which affirmed the declaration that 11 NYCRR 65.17 (i) (2) is invalid. The propriety of the offset is thus not before this court.

While the Superintendent unquestionably has statutory authority to interpret, clarify and implement legislative policy under the No-Fault Law (Breen v Cunard Lines S. S. Co., 33 NY2d 508, 511), as well as specific statutory authority under subdivision 2 of section 675 of the Insurance Law to promulgate procedures for review by a master arbitrator, regulations cannot be “inconsistent with some specific statutory provision.” (Ostrer v Schenck, 41 NY2d 782, 785; see, also, Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 595; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471, 480-481.) As the courts below correctly held, the 51-day period set forth in 11 NYCRR 65.17 (i) (2) truncates the 90-day period provided by the Legislature for commencing proceedings under article 75, and to that extent the regulation is therefore invalid. Nor can it be said that the insured voluntarily waived the right to commence an article 75 proceeding within 90 days by electing arbitration under the Insurance Law. There is no basis independent of the invalid regulation for a claim of waiver.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, affirmed, without costs.


text:
    In the Matter of Rebecca Taylor et al., Appellants, v Jack Berberian, Individually and as Superintendent of Community School Board District 3, et al., Respondents.
    Argued November 21, 1983;
    decided December 13, 1983

      APPEARANCES OF COUNSEL

      Eugene G. Eisner and Fanette Pollack for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Edward F.X. Hart and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

In cities having a population of 400,000 or more, the discretion to grant tenure to a principal upon completion of his or her probationary period lies exclusively in the superintendent of schools (see Matter of Caraballo v Community School Bd. Dist. 3, 49 NY2d 488; Education Law, § 2573, subd 6). And, although the school board retains ultimate discretion over the termination of a principal during the probationary period (see Education Law, § 2573, subd 1, par [b]), that discretion may not be fairly read to extend beyond the end of the probationary period. To hold otherwise would constitute an arrogation of the superintendent’s discretion over tenure decisions by the school board. Consequently, upon respondent’s determination not to recommend petitioner for tenure and to terminate her services after completion of the probationary period, petitioner may not be deemed to have acquired tenure by the school board’s inaction.

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

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.


text:
    Joseph Anastasio, on Behalf of Himself and All Similarly Situated Taxpayers of City of New York Entitled to the Veterans’ Property Tax Exemption Under State Law, Appellant, v City of New York et al., Respondents.
    Argued November 22, 1983;
    decided December 13, 1983

      APPEARANCES OF COUNSEL

      Edward G. Galian and Sidney Siller for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Edith I. Spivack and Rochelle M. Corson of counsel), for respondents.
   opinion of the court

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (93 AD2d 769).

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


text:
    The People of the State of New York, Respondent, v Max Gottfried, Appellant.
    Argued November 21, 1983;
    decided December 13, 1983

      APPEARANCES OF COUNSEL

      Edwyn Silberling and Edward Gasthalter for appellant.

      Patrick Henry, District Attorney CMark D. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s convictions of criminal contempt and perjury turned on factual issues which the jury resolved in favor of the People and for which in each instance the evidence in the record was sufficient.

As to the criminal contempt conviction there was evidence from which the jury would have been warranted in concluding that the cryptic entries in defendant’s black book were made in circumstances so memorable as to render his protestations of no recollection incredible and thus evasive. It is not sufficient to defeat a charge of criminal contempt that the witness utter words which may be said in form to constitute an answer. “To be guilty of contempt the witness need not flatly refuse to answer the questions put to him; false and evasive profession of an inability to recall, which amounts to no answer at all, is punishable as criminal contempt” (People v Ianniello, 36 NY2d 137, 142). Defendant’s repeated responses of “I don’t remember”, “I don’t recall”, and “I don’t know”, together with his reiterated statements that the moneys went to no one specifically, are sufficient to sustain the finding of contemptuous evasion.

With reference to the conviction for peijury, the entries in defendant’s black book taken with his testimony with respect thereto and the testimony of defendant’s bookkeeper as to the overheard conversation constituted evidence that defendant committed perjury when he denied making any payment to the union official. Additionally each component of such evidence provided corroborative proof with respect to the other (Penal Law, § 210.50).

Finally, notwithstanding the dismissal of the second count of criminal contempt, the trial court did not abuse its discretion in the circumstances of this case in admitting into evidence the extended portions of defendant’s testimony before the Grand Jury (cf. People v McGrath, 46 NY2d 12, 32).

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

Order affirmed in a memorandum.


text:
    Andrew J. Beck et al., Appellants, v New York News, Inc., Respondent, et al., Defendant.
    Argued November 21, 1983;
    decided December 13, 1983

      APPEARANCES OF COUNSEL

      Michael J. Connelly and Gail F. Stone for appellants.

      John H. Gross and Randy Paar for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (92 AD2d 823).

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


text:
    In the Matter of Consolidated Edison Company of New York, Inc., Appellant, v City of New York et al., Respondents. In the Matter of Consolidated Edison Company of New York, Inc., Appellant, v City of New York et al., Respondents.
    Argued November 21, 1983;
    decided December 13, 1983

      APPEARANCES OF COUNSEL

      Bernard Hulkower and Lisa B. Mann for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Gary Schuller and Leonard Olarsch of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

In each case, the order of the Appellate Division should be affirmed, with costs, essentially for the reasons stated in the memorandum of that court. We add only (1) that legislative authorization to require waiver of the benefits of section 626 of the Real Property Tax Law exists in section 369 of the New York City Charter, which empowers the board of estimate to determine the adequacy of the proposed compensation and embody its determination in a contract with conditions (see Blanshard v City of New York, 262 NY 5, 12), and (2) that because the waiver clause materially affects the compensation to be received by the city, the continuation clause contained in the 1972 contract, by which the company agrees notwithstanding termination of the contract to pay for its use of the franchised facilities “compensation at the rates in effect immediately prior to such termination * * * together with all taxes it would have been required to pay had its operation been duly authorized” carries with it the waiver of section 626 of the Real Property Tax Law, because otherwise the compensation to be received by the city for the facilities after termination would be materially reduced.

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

In each case: Order affirmed, with costs, in a memorandum.


text:
    Marriott Corporation et al., Respondents, v Rogers & Wells, Defendant, and Alavi Foundation of Iran, Appellant.
    Argued November 22, 1983;
    decided December 13, 1983

      APPEARANCES OF COUNSEL

      Gary A. Woodfield for appellant.

      Allen Green for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative (Marriott Corp. v Rogers & Wells, 81 AD2d 556).

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


text:
    Mildred Zarrello et al., Appellants, v City of New York, Respondent.
    Decided December 15, 1983

      APPEARANCES OF COUNSEL

      Richard J. Cardali for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Larry A. Sonnenshein of counsel), for respondent.
   opinion of the court

Memorandum.

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

Plaintiff Mildred Zarrello suffered injury when, on December 21, 1979, she fell on a public sidewalk located outside Long Island City Hospital in Brooklyn, New York. No notice of claim was served on the City of New York within the 90-day period prescribed by section 50-e of the General Municipal Law. On March 17, 1981, plaintiffs filed an application pursuant to subdivision 5 of said section for leave to file a late notice of claim. Supreme Court granted the application and, on reargument, adhered to its decision. The Appellate Division reversed in an exercise of discretion, holding that the delay had substantially prejudiced the city in maintaining its defense on the merits of the action.

It cannot be said, as a matter of law, that the Appellate Division abused its discretion in denying plaintiffs’ application for leave to file a late notice. The city received no notice of the accident, which was not reported to the police, until one year and 87 days after its occurrence. The complaint alleges that the city’s liability is predicated on the defective state of the sidewalk and the accumulation of ice and snow which combined at the time of the accident to create a dangerous condition. Inasmuch as the city had no occasion to investigate the scene of the accident until nearly one year after the time period for serving a notice of claim had run, there was an ample basis for the Appellate Division to have concluded that the city’s defense of the action had been substantially compromised by the delay (cf. Mills v County of Monroe, 59 NY2d 307, 310-311).

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

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


text:
    J. Roger Barber, as Commissioner of Agriculture and Markets of the State of New York, Respondent, v T. David Bullard, as President of Bullard Orchards, Inc., et al., Appellants.
    Decided December 15, 1983

      APPEARANCES OF COUNSEL

      Norman Reliar and Bernard E. Harvith for appellants.

      Thomas G. Conway and Charles J. Yanni for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the opinion by Justice T. Paul Kane at the Appellate Division (93 AD2d 672). Question certified not answered as unnecessary.

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


text:
    The People of the State of New York, Appellant, v Heriberto Gonzalez, Also Known as Alberto Gonzales, Respondent.
    Decided December 15, 1983

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (.Michael Gore of counsel), for appellant.

      William E. Hellerstein and Miriam J. Hibel for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted for murder in the second degree, assault in the second degree and criminal possession of a weapon in the second degree. His first trial ended in a mistrial when the jury declared that it was hopelessly deadlocked. At his second trial, manslaughter in the first degree was submitted to the jury as a lesser included offense of second degree murder. Defendant was acquitted of second degree murder and assault but convicted of first degree manslaughter and second degree criminal possession of a weapon.

On defendant’s appeal, the Appellate Division reversed due to prejudicial trial error and ordered a new trial (92 AD2d 873). Thereafter, that court granted defendant’s motion to reargue the appeal and, on reargument, substituted a new decretal paragraph in its prior order so as to direct a new trial only on the criminal possession of a weapon count and otherwise to dismiss the indictment without prejudice to the People re-presenting any appropriate charges to another Grand Jury (96 AD2d 847). The People have appealed to our court contending that the corrective action directed by the Appellate Division in reversing is illegal under CPL 470.20 (subd 1).

Inasmuch as defendant had been acquitted of second degree murder, further prosecution on that charge was barred by double jeopardy. Further, the Appellate Division could not order a new trial on the lesser included offense of first degree manslaughter because the indictment had to be dismissed as to the murder charge and there was thus nothing remaining to support further criminal prosecution for manslaughter under that accusatory instrument (People v Mayo, 48 NY2d 245, 253; followed in People v Villani, 59 NY2d 781; People v Beslanovics, 57 NY2d 726). The Appellate Division thus properly dismissed the indictment, except as to the weapon possession count, with leave to the People to re-present any appropriate charges to another Grand Jury.

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

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


text:
    The People of the State of New York, Respondent, v George Miles, Appellant.
    Argued November 22, 1983;
    decided December 15, 1983

      APPEARANCES OF COUNSEL

      Ramsey Clark and Lawrence W. Schilling for appellant.

      Robert M. Morgenthau, District Attorney (William J. Comiskey, Robert M. Pitler, Mark Dwyer and Jerrold L. Neugarten of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Although we agree with the defendant that People v Farrar (52 NY2d 302) is not binding on the Appellate Division (see People v Thompson, 60 NY2d 513), the fact remains that a majority at the Appellate Division decided not to grant the defendant any discretionary relief with respect to his sentence. That determination is not subject to further review in this court (see, e.g., People v Discala, 45 NY2d 38; cf. People v Rytel, 284 NY 242).

Jasen, J. (concurring in result only). While I agree that the Appellate Division’s determination not to grant defendant any discretionary relief with respect to his sentence is not subject to further review in this court, I do not agree that People v Farrar (52 NY2d 302) is not binding on the Appellate Division. (See dissent in People v Thompson, 60 NY2d 513, 522.)

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur; Judge Jasen concurs in result only in a separate memorandum.

Order affirmed in a memorandum.


text:
    In the Matter of Jeanne M., Respondent, v Richard G., Appellant, and Sean M., Intervenor-Respondent.
    Decided December 15, 1983

      APPEARANCES OF COUNSEL

      Samuel Kowal for appellant.

      Stanley Weiner for Jeanne M., respondent.

      James R. Filenbaum for intervenor-respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed, without costs, upon the ground that the portion of the order of the Appellate Division, which reversed Family Court blood test orders, does not finally determine the proceeding within the meaning of the Constitution, and upon the further ground that the portion of the order of the Appellate Division which modified the Family Court support order did not modify in a “respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iii]; Klein v Klein, 40 NY2d 582).


text:
    Berkeley Associates Co. et al., Appellants, v Peter J. McQuillan, as a Justice of the Supreme Court, State of New York, et al., Respondents.
    Argued November 21, 1983;
    decided December 15, 1983

      APPEARANCES OF COUNSEL

      Richard N. Runes for appellants.

      Robert Abrams, Attorney-General (Florence E. Abrams, Peter H. Schiff and Brenda S. Spears of counsel), for Peter J. McQuillan, as a Justice of the Supreme Court, State of New York, respondent.

      Kenneth A. Schultz, respondent pro se, and for Magda Abou-Saif, respondent.
   OPINION OF THE COURT

Judgment reversed, without costs, and matter remitted to the Appellate Division, First Department, with directions to dismiss the proceeding for mootness.

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


text:
    The People of the State of New York, Appellant, v James Foster, Respondent.
    Argued November 23, 1983;
    decided December 15, 1983
   Appeal dismissed upon the ground that the Appellate Division’s determination of reversal 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:
    Mary L. Bartlett, as County Clerk of Oneida County, Appellant, v Herbert B. Evans, as Chief Administrative Judge of the Courts, et al., Respondents.
    Submitted November 28, 1983;
    decided December 15, 1983
   Motion to dismiss appeal granted to the extent that the appeal is transferred to the Appellate Division, Second Department, without costs, upon the ground that 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.)

Chief Judge Cooke taking no part.


text:
    In the Matter of the Civil Service Employees Association, Inc., et al., Respondents, v Harold R. Newman, as Chairman of the Public Employment Relations Board of the State of New York, et al., Respondents, and Clifton R. Wharton, Jr., as Chancellor of the State University of New York at Albany, et al., Appellants.
    Submitted November 21, 1983;
    decided December 15, 1983
   Motion for leave to withdraw appeal denied. There are two separate article 78 proceedings pending for review of different determinations by PERB. Thus, Parker v Rogerson (35 NY2d 971), involving inconsistent appellate routes in a single proceeding, is inapplicable. The appeal pending here is the only vehicle by which a review of the nonfinal order of the Appellate Division entered June 7, 1982 [88 AD2d 685] may be obtained (Matter of Concerned Citizens to Review Jefferson Val. Mall v Town Bd. of Town of Yorktown, 54 NY2d 957).


text:
    In the Matter of J. & L. Weissman Co., Inc., Appellant, v Harrison J. Goldin, as Comptroller of the City of New York, et al., Respondents.
    Submitted November 14, 1983;
    decided December 15, 1983
   Motion for leave to appeal dismissed as untimely (see CPLR 5611; Farragher v City of New York, 19 NY2d 831), with $20 costs and necessary reproduction disbursements.


text:
    Langham Mansions Co., Appellant, v Paul B. Brine, Jr., Respondent.
    Decided December 15, 1983
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Term, First Judicial District. A direct appeal does not lie, absent any question as to the constitutional validity of a statutory provision (NY Const, art VI, § 3, subd b, par [2]; CPLR 5601, subd [b], par 2).


text:
    Henry Kenny et al., Plaintiffs, v James Bacolo et al., Defendants, and Martin L. Horowitz, Defendant and Third-Party Plaintiff-Appellant. Atlantic Repair Co., Inc., et al., Third-Party Defendants-Respondents.
    Argued October 17, 1983;
    decided December 20, 1983

      APPEARANCES OF COUNSEL

      Alexander J. Wulwick, Louis G. Adolfsen and Salvatore A. Mazzoni for defendant and third-party plaintiff-appellant.

      Raymond C. Green for Atlantic Repair Co., Inc., third-party defendant-respondent.

      William F. Larkin and John P. Connors for Decker Tank & Equipment Co. and another, third-party defendants-respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The question certified is not answered, as unnecessary.

The Longshoremen’s and Harbor Workers’ Compensation Act provides that an employer’s obligation to compensate an employee under the act “shall be exclusive and in place of all other liability of such employer to the employee * * * and anyone otherwise entitled to recover damages from such employer at law * * * on account of such injury” to the employee (US Code, tit 33, § 905, subd [a]). Plaintiff, an employee of the third-party defendant, Atlantic Repair Co., Inc., received an award of compensation on January 12, 1981, pursuant to a compensation order under the act (see US Code, tit 33, § 919) obligating Atlantic and the State Insurance Fund to provide certain payments to plaintiff. This compensation order precludes defendant Horowitz from maintaining this third-party action for contribution against plaintiff’s employer (see Cooper Stevedoring Co. v Kopke,Inc., 417 US 106; Atlantic Coast Line R.R. Co. v Erie Lackawanna R.R. Co., 406 US 340; Halcyon Lines v Haenn Ship Corp., 342 US 282; US Code, tit 33, § 905, subd [a]).

Defendant claims that there is no bar to his third-party claim for contribution. He argues that he may not be bound by the Federal award because he was afforded no notice of or opportunity to appear at the administrative proceeding. Defendant further contends that the award was improperly made because the provisions of the act are inapplicable to plaintiff’s injuries as they did not occur in circumstances covered by the act (see US Code, tit 33, § 903, subd [a]).

It is true that the principle of collateral estoppel does not apply here to bar the claim because defendant was not a party or in privity with a party to the proceeding before the Federal agency. In addition, the record does not indicate that he had a fair and full opportunity to litigate the issue before the agency because he had no notice of the proceeding (see S. T. Grand, Inc. v City of New York, 32 NY2d 300, 304). Defendant, however, may not properly controvert the award in a State court. The exclusive means for setting aside Federal compensation orders is by way of an administrative or judicial proceeding in a Federal forum pursuant to the provisions of the act (see Dantes v Western Foundation Corp. Assn., 614 F2d 299, 300; US Code, tit 33, § 921, subds [c], [e]). Thus, Atlantic’s motion to dismiss the third-party complaint was properly granted.

It was also proper to dismiss the third-party complaint as to Bacolo and Decker Tank & Equipment Company. As plaintiff’s coemployee, Bacolo is immune from any suit for contribution based upon injuries he may have caused to plaintiff (see Dingler v Halcyon Lijn N.V., 305 F Supp 1, 2 [citing US Code Cong & Admin News, 1959,86th Cong, 1st Sess, vol 2, p 2135]; US Code, tit 33, § 933, subd [a]). Decker Tank was sued, as the owner of the leased truck, on the theory that it was vicariously liable for the driver’s negligence. Inasmuch as the driver, Bacolo, is statutorily immune from suit, there can be no liability imputed to Decker Tank and no action can be sustained against it (see Naso v Lafata, 4 NY2d 585; Rauch v Jones, 4 NY2d 592; Albarran v City of New York, 56 AD2d 822).

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

Order affirmed, etc.

       Similarly, the exclusive means for setting aside a State compensation order, which is operating to bar recovery in a State court action, is in a proceeding before the State Workers’ Compensation Board and it is the plaintiff who must plead and prove the unavailability of workers’ compensation benefits or insurance (see O’Connor v Midiria, 55 NY2d 538, 541; Werner v State of New York, 53 NY2d 346, 355; O’Rourke v Long, 41 NY2d 219, 226).


text:
    In the Matter of Mildred Coffey, Respondent, v Joseph D’Elia, as Commissioner of the Nassau County Department of Social Services, et al., Respondents, and David Axelrod, as Commissioner of the New York State Department of Health, Appellant.
    Decided December 20, 1983
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (.Robert E. Rearman, Melvyn R. Leventhal, Peter H. Schiff and Mary Ellen Weinberg of counsel), for appellant.

      Leonard S. Clark and Maryellen C. Sullivan for petitioner-respondent.

      Edward, G. McCabe, County Attorney (Bruce Adams of counsel), for Joseph D’Elia, as Commissioner of the Nassau County Department of Social Services, respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, without costs, and the determination of the Commissioner of the State Department of Social Services reinstated.

Petitioner, a recipient of Medicaid, suffers from chronic pulmonary disease. In October, 1980, petitioner made a request to the Nassau County Department of Social Services that she be provided an air conditioner under the Medicaid program. The local agency denied the request and, after a hearing, respondent Commissioner of Social Services affirmed the determination on the ground that “[t]he medical evidence submitted by the appellant was insufficient to establish that an air conditioner is necessary.” The Appellate Division reversed and annulled the determination. That court reasoned that the determination had been solely based on the testimony of a physician for the Department of Social Services who had never examined petitioner and, therefore, was not supported by substantial evidence.

A review of the stated grounds for the commissioner’s determination indicates that, contrary to the conclusion of the Appellate Division, the reason for the denial was petitioner’s failure to demonstrate the medical necessity of the requested equipment. In support of her request, petitioner had submitted letters from her treating physician, who did not specialize in treating pulmonary disabilities, that detailed her condition and that stated, in pertinent part, that he “believe[d] that an air conditioner for [petitioner’s] home would be of tremendous value in maintaining her symptom-free, as well as preventing the acute episodes which she has suffered in the past”, and that he has “found that patients with air conditioning seem to experience less discomfort and symptoms when they live in an air conditioned environment.” Petitioner’s own testimony indicated that factors, other than improved climate, served to alleviate her symptoms. No evidence was submitted that demonstrated that petitioner had required or received more extensive medical treatment during summer months and there was evidence that her condition had in the past been most acute at times other than the summer months. In view of the nature and quantum of the evidence in the record before the agency presented in support of petitioner’s request, it cannot be said that the determination under review was not rationally based upon evidence of a substantial nature.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment reversed, without costs, and determination of the Commissioner of the State Department of Social Services reinstated in a memorandum.


text:
    David B. Thompson et al., Appellants, v County of Erie, Defendant, and Consolidated Rail Corporation, Respondent.
    Argued November 23, 1983;
    decided December 20, 1983

      APPEARANCES OF COUNSEL

      Francis M. Letro and Paul William Beltz for appellants.

      Harry F. Mooney for respondent.
   OPINION OF THE COURT

Memorandum.

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

On the record before us, it cannot be said as a matter of law that the Appellate Division abused its discretion in granting defendant’s cross motion for summary judgment dismissing the complaint herein.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of New York Excess and Surplus Lines Association, Ltd., Respondent, v Albert B. Lewis, as Superintendent of Insurance of the State of New York, Appellant, et al., Respondent.
    Decided December 20, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (August L. Fietkau and Peter H. Schiff of counsel), for appellant.

      Alan Jay Martin for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, and question certified answered in the affirmative for the reasons stated in the memorandum of the Appellate Division (92 AD2d 839; see, also, Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352).

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


text:
    In the Matter of Thomas E. Radich, Respondent, v Council of the City of Lackawanna, Respondent, and Anthony Mingarelli et al., Appellants.
    Decided December 20, 1983

      APPEARANCES OF COUNSEL

      Timothy A. McCarthy for appellants.

      James L. Magavern for Thomas E. Radich, respondent.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), the order of the Appellate Division should be affirmed, with costs.

Pursuant to subdivision 1 of section 2-a of the General City Law, upon the resignation of the former Mayor, the powers and duties of that office automatically and instantaneously devolved upon the president of the city council, who thereby became the Mayor. By operation of the statute, no vacancy in the office of Mayor ever existed (Matter of Burns v Kinley, 60 NY2d 40, 41) and the provisions of the statute, rather than those of the city charter, govern mayoral succession in this case. Section 2-a of the General City Law is a proper exercise of legislative power in an area of State-wide significance and, therefore, does not implicate the home rule provisions of article IX of the Constitution. (Matter of Burns v Kinley, supra, at p 43; Matter of Kelley v McGee, 57 NY2d 522, 538.)

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

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


text:
    The People of the State of New York, Respondent, v Fred Hall, Appellant.
    Argued October 25, 1983;
    decided December 20, 1983

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Peter D. Braun of counsel), for appellant.

      Howard R. Relin, District Attorney (Thomas Rainbow Morse of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s conviction vacated, and a new trial ordered.

The People concede that no inquiry was made by the trial court to ensure that defendant (as well as his codefendants) perceived the potential risks inherent in their joint representation by the same attorney. “[B]ecause of this absence of a proper inquiry on the record, we are unable to ascertain whether the defendants’ decision to proceed with their attorney was knowingly and intelligently made, or whether they merely acquiesced out of ignorance to their joint representation.” (People v Macerola, 47 NY2d 257, 264.) Inasmuch as defendant has additionally demonstrated on the record a significant possibility that there was a conflict of interest in consequence of the joint representation, he was denied the right to effective assistance of counsel guaranteed him by both Federal and State Constitutions (id.).

In this case the jury could reasonably have concluded that the role played by defendant in the criminal transaction was of a significantly lower level of criminal culpability than that of either of his two codefendants. The evidence would have supported conclusions that at the outset he was asleep and not an initiator, but awakened to find himself in the middle of an ongoing enterprise; that he did not cover his face with stockings as did his two codefendants; that he did not wield a metal pipe in the victim’s face as did one of his codefendants or threaten to hurt her as did both of them; and that he did not participate, as did the others, in discussions as to beating up the victim’s companion or in throwing him out of the car. These substantial dissimilarities in the evidence would have suggested defense strategies and trial tactics for defendant quite different from those for the two codefendants. (People v Baffi, 49 NY2d 820.)

In these circumstances, failure of the trial court to have made the requisite inquiry mandates a reversal of defendant’s conviction.

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v Raffa Johnson, Respondent.
    Decided December 20, 1983

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney CMichael H. Warren of counsel), for appellant.

      William E. Hellerstein and Jill F. Moscowitz for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, conviction reinstated and case remitted to the Appellate Division, First Department, so that it may consider any questions of fact and whether to exercise its discretion (see People v Creech, 60 NY2d 895).

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


text:
    In the Matter of Veronica Trehy, as Mother and Natural Guardian of Joseph P. Trehy, Jr., an Infant, Respondent, v Commack Union Free School District et al., Appellants.
    Decided December 20, 1983

      APPEARANCES OF COUNSEL

      Eugene L. Wishod for appellants.

      Robert L. Ferris for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), respondent’s submission is treated as a motion to discontinue, the order is reversed, without costs, and the matter remitted to Supreme Court, Suffolk County, with directions to enter an order discontinuing the proceeding with prejudice pursuant to CPLR 3217 (subd [b]).

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


text:
    In the Matter of New York Veteran Police Association, Respondent, v New York City Police Department Article I Pension Fund et al., Appellants.
    Argued December 12, 1983;
    decided December 20, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis and Michael Gage of counsel), for appellants.

      John G. Marks for respondent.

      Richard Hartman and Raymond E. Kerno for Patrolmen’s Benevolent Association of the City of New York, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Petitioner is a not-for-profit corporation, organized under the laws of the State of New York, whose primary purpose is to provide its members, retired police officers, with services and information concerning pensions and other matters. It seeks in this article 78 proceeding brought pursuant to section 89 (subd 4, par [b]) of the Public Officers Law, the Freedom of Information Law, to obtain access to the names and addresses of all retirees of the New York City Police Department currently receiving pensions and annuities.

Special Term denied the application and dismissed the petition. The Appellate Division reversed Special Term and granted the requested relief. While the appeal to this court was pending, section 89 of the Public Officers Law was amended by adding a new subdivision 7 (L 1983, ch 783). The new statute provides that nothing in the Freedom of Information Law shall require the disclosure of the home address “of an officer or employee, former officer or employee, or of a retiree of a public employees’ retirement system” or the name or address of the beneficiary of such system or of an application for appointment to public employment. The act became law June 30,1983. Its provisions provide that it was to take effect immediately and to apply to any request for information for which there had been no final determination on the effective date, “including judicial review.”

The provisions of the amendment apply to this proceeding which was pending before the court at the time it became effective and foreclose relief to petitioner.

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

Order reversed, etc.


text:
    Hicksville Motors, Ltd., et al., Respondents, v Merchants Mutual Insurance Company, Respondent, and Kathleen Minerva, Appellant.
    Decided December 20, 1983

      APPEARANCES OF COUNSEL

      Leland Stuart Beck for appellant.

      John W. Hoefling for Merchants Mutual Insurance Company, respondent.

      Michael E. Tockman and Jay A. Marshall for Hicksville Motors, Ltd., respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (97 AD2d 396).

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


text:
    In the Matter of Harry Polche, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York, et al., Respondents.
    Decided December 20, 1983

      APPEARANCES OF COUNSEL

      Richard A. Dienst for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Pamela Seider Dolgow of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Inasmuch as it cannot be determined on the record in this case that appellant was entitled to accidental disability benefits as a matter of law, the determination of respondent board of trustees will not be disturbed. (Matter of Canfora v Board of Trustees of Police Pension Fund, 60 NY2d 347.)

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

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


text:
    In the Matter of Duncan Petroleum Transport, Inc., Appellant, v Aetna Insurance Company et al., Respondents.
    Decided December 20, 1983

      APPEARANCES OF COUNSEL

      Brian W. McElhenny for appellant.

      Richard C. Mulle for Aetna Insurance Company, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (96 AD2d 942).

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


text:
    In the Matter of Philip P. Dondi, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.

      Submitted November 21, 1983;
    decided December 20, 1983
   Motion for leave to appeal granted. Motion for a stay granted to the extent that the interim stay contained in the order to show cause dated November 10, 1983, signed by Honorable Bernard S. Meyer of this court, is continued pending the determination of the appeal herein.


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.
    Submitted November 28, 1983;
    decided December 20, 1983
   Motion to vacate the Court of Appeals October 28, 1983 order of dismissal granted, appellants’ papers on appeal to be served and filed on or before January 20, 1984.


text:
    In the Matter of Save the Pine Bush, Inc., et al., Respondents, v Planning Board of the City of Albany et al., Respondents, and Benacquista, Polsinelli and Serafini Management Corp. et al., Interveners-Appellants.
    Submitted November 14, 1983;
    decided December 20, 1983
   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 affirmance. Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.


text:
    In the Matter of Charles A. Weil, Appellant, v Joseph T. McClough et al., Respondents.
    Submitted November 28, 1983;
    decided December 20, 1983
   Motion to vacate the Court of Appeals order of dismissal dated November 3, 1983 denied. [See 60 NY2d 859.]


text:
    In the Matter of the Estates of Joseph N. Zlinkoff et al., Deceased. David Zlinkoff, Appellant; Marie M. Lambert et al., Respondents.
    Submitted December 12, 1983;
    decided January 5, 1984
   Document entitled “Supplemental Verified Letter to the Hon. Chief Judge Lawrence H. Cooke” as a “Motion as of Right in the Interests of Justice” dismissed upon the ground that neither the court nor any individual Judge has jurisdiction to entertain the application. [See 60 NY2d 556, 683.]


text:
    Mutual Fire, Marine & Inland Insurance Co. et al., Appellants, v Fred S. James & Company of New York, Respondent. (And Another Action.)
    Argued December 14, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      Mark F. Bruckmann and Edward G. Spacek for appellants.

      Paul N. Watterson and David M. Brodsky for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice David Ross at the Appellate Division (92 AD2d 203).

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


text:
    The People of the State of New York, Respondent, v Horace Chaitin, Appellant.
    Argued December 12, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      J. Irwin Shapiro and Daniel M. Kolko for appellant.

      Edward J. Kuriansky, Deputy Attorney-General (Arthur G. Weinstein, David E. Ruck and Robert Dublirer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The argument, first advanced in our court, that under the language of the indictment and the instructions of the trial court the jury was required to find that the actual filing of the false invoices occurred in Kings County but that there is no evidence in the record to support any such finding, was not preserved for our review, there having been no motion to dismiss in the trial court based on this ground (cf. People v Coria, 49 NY2d 26, 33, n 2).

Nor did the trial court commit error in permitting cross-examination with respect to defendant’s prior suspension as a Medicaid provider. The door was opened on defendant’s direct examination in consequence of which an issue which would otherwise have been collateral was made material (cf. Halloran v Virginia Chems., 41 NY2d 386, 393), several objections to questions on cross-examination were sustained, curative instructions were given in one instance, the stipulation signed by defendant was admissible as an admission, no objection to the reading of its caption was raised on the ground of prejudice. In sum, to the extent cross-examination was permitted over pertinent protest registered by defense counsel, it was not error. Nor was it error to deny defense counsel’s several motions for a mistrial.

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

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

Order affirmed in a memorandum.


text:
    In the Matter of Blanche Conley, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued December 14, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      Bernard F. Ashe, Ira Paul Rubtchinsky and Rocco A. Solimando for appellant.

      James H. Whitney, Robert D. Stone and Richard J. Trautwein for Gordon M. Ambach, as Commissioner of Education, respondent.

      David W. Larrison and John T. McCann for Board of Education of the Syracuse City School District, respondent.

      Henry F. Sobota for New York State School Boards Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to petitioner, to remit the matter to Supreme Court, Albany County, with direction to remand to the Commissioner of Education for revision of the directives contained in his decision dated October 14, 1981 so as to order the choice of a replacement chairman of the panel and the conduct of new hearings in conformity with this memorandum, and, as so modified, affirmed.

The authority of the Commissioner of Education to review the findings of a hearing panel under section 3020-a of the Education Law, includes the right to annul the decision of the panel on the ground of bias or partiality of the panel chairman (Education Law, § 3020-a, subd 5; cf. § 310; Matter of Shurgin v Ambach, 56 NY2d 700, 702). The standard by which the determination of the commissioner in the exercise of such authority is to be judged on judicial review is whether his determination “was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803, subd 3). The operative test in this instance is whether the commissioner’s determination to annul the decision of the hearing panel was arbitrary and capricious.

His determination was made on the ground that, during the course of the proceedings before the panel, its chairman accepted a remunerative position with the New York State United Teachers (NYSUT) as one of eight arbitrators available to hear disputes between NYSUT and its professional employees, without disclosure thereof to the board of education until subsequent to the close of the hearings. This employment, coupled with the circumstance that counsel for NYSUT represented the teacher at the hearings, was found to raise a sufficient question as to the impartiality of the chairman (or the appearance thereof) as to warrant vacatur of the decision of the panel. Although no direct relationship between the chairman and one of the parties to the proceeding was revealed, there was shown to have been an undisclosed connection between the chairman and counsel for the teacher. This connection alone, without any showing of actual partiality or impropriety on the part of the chairman (of neither of which is there any suggestion in this record), constituted a rational basis for the commissioner’s action. Accordingly, his determination of annulment was not arbitrary or capricious and must be sustained.

The commissioner had no authority, however, to impose the prescriptions that he did on the further conduct of the hearings. Specifically, he had no authority to direct the selection of the new chairman of the panel by the parties; the statute mandates that the third member of the panel shall be chosen by mutual agreement of the other two panel members (Education Law, § 3020-a, subd 3, par c; cf. 8 NYCRR 82.10 [f]).

Additionally, inasmuch as portions of the evidence at the hearings consisted of conflicting testimony of live witnesses, the credibility and persuasive force of which testimony might not be susceptible to adequate evaluation on the basis of a reading of the transcript only, it was an abuse of discretion, in view of the key role played by the chairman of the hearing panel as its only impartial member, to order the determination of the reconstituted panel to be based only “upon the record already established”. This is not to say that portions or all of the transcript of the first hearings cannot be employed by the new panel in making its determination; it is to say only that, absent agreement of the parties and the new chairman, the commissioner cannot order that the consideration of the new panel be confined to the record already established.

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

Order modified, with costs to petitioner, and matter remitted to Supreme Court, Albany County, with directions to remand to the commissioner for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Ronald Associates No. 2, Respondent, v Philip R. Michael, as Commissioner of Finance of the Department of Finance of the City of New York, Appellant.
    Argued December 12, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      Frederick A. 0. Schwarz, Jr., Corporation Counsel {Judith R. Greenwald and Leonard Olarsch of counsel), for appellant.

      William E. Banfield for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (93 AD2d 723).

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


text:
    In the Matter of the City of Syracuse, Appellant, v Utica Mutual Insurance Company, Respondent. (Proceeding No. 1.) In the Matter of the City of Syracuse, Appellant, v Utica Mutual Insurance Company, Respondent. (Proceeding No. 2.)
    Argued December 14, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      David M. Garber, Corporation Counsel {James L. Gelormini of counsel), for appellant.

      Thomas D. Keleher for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Legislature in enacting section 674 of the Insurance Law adopted a new procedure which authorizes first-party benefits with a resulting equitable adjustment between insurers without the need for the formalities applicable to claims and lawsuits. In our view the comprehensive nature of the no-fault legislation and the absence therefrom of any requirement for compliance with section 50-e or 50-i of the General Municipal Law indicates a legislative intent that the provisions of the latter statutes should have no application to the statutory arbitration proceedings between insurers or self-insurers. In addition, we note that this interpretation is consistent with the opinion expressed by the Committee on Insurance Arbitration which is responsible for administering these arbitration proceedings (11 NYCRR 65.10 [b] [1]). That opinion is entitled to great weight insofar as it represents the interpretation of the statute by an agency charged with implementing and enforcing it (Matter of Cortlandt Nursing Care Center v Whalen, 46 NY2d 979; see, also, Uniformed Firefighters Assn. v Beekman, 52 NY2d 463, 472).

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

In each case: Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Pamela Renee Russ, Appellant.
    Argued December 13, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      Barry Stendig and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress should be granted and the indictment dismissed.

The officer who frisked defendant and took a pistol from the area of her waistband had received a radio report of an anonymous 911 calf in which the informant stated that he had seen a woman in a blue car with a white top parked in front of 123 West 112th Street pass a handgun to a man seated in the car with her. Finding defendant in a car meeting the description and the specific location indicated by the informant provided reasonable suspicion that a crime had occurred or was about to occur and warranted the officer’s request that she step out of the car for inquiry (Pennsylvania v Mimms, 434 US 106; People v Landy, 59 NY2d 369, 376).

It did not, however, justify the frisk. A frisk requires reliable knowledge of facts providing reasonable basis for suspecting that the individual to be subjected to that intrusion is armed and may be dangerous (People v Carney, 58 NY2d 51; People v Benjamin, 51 NY2d 267). Here, there was no such predicate either in the information received, which indicated that defendant had given a gun to the man but provided no basis for inferring that she had another or that it had been returned to her, or in what occurred during the officer’s encounter with defendant. No inquiry was made of defendant so she neither refused to answer nor answered evasively (see People v Klass, 55 NY2d 821); no suspicious bulge was perceived in her clothing (cf. People v De Bour, 40 NY2d 210, 213); no furtive movements were made by her (see People v Benjamin, 51 NY2d 267, supra); her appearance and movements were not concealed by darkness (see People v McLaurin, 43 NY2d 902, revg on dissent 56 AD2d 80, 84). Bearing in mind the weakness of information received from an anonymous source (People v De Bour, 40 NY2d 210, 224, supra; cf. People v Moore, 32 NY2d 67, cert den 414 US 1011), we conclude that the fact that the car was of the described colors and in the specified location authorized the officer to address investigative inquiries to its woman occupant but not to frisk her.

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

Order reversed, etc.


text:
    Vantage Petroleum, Bay Isle Oil Co., Inc., Bay Isle Oil Corp., Respondent, v Board of Assessment Review of the Town of Babylon et al., Respondents. Board of Education, Lindenhurst Union Free School District No. 4, Town of Babylon, Appellant.
    Argued December 15, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      Eugene L. Wishod for appellant.

      Laureen Cronin for petitioner-respondent.

      Lou Lewis for Shoreham-Wading River School District, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

The appeal raises the question whether a board of education in the County of Suffolk may intervene in a tax certiorari proceeding involving property within the district. To the extent that the application sought intervention by permission under CPLR 1013, the exercise of discretion by the courts below is, absent an abuse of discretion as a matter of law, not here present, beyond our review (Patron v Patron, 40 NY2d 582). To the extent that intervention as of right was sought under CPLR 1012 (subd [a], par 2), we affirm for the reasons stated in the Appellate Division memorandum (91 AD2d 1037) to which we add only that whether movant will be bound by the judgment within the meaning of that subdivision is determined by its res judicata effect (Matter of Unitarian Universalist Church v Shorten, 64 Misc 2d 851, 854, vacated on other grounds 64 Misc 2d 1027; Lesser v West Albany Warehouses, 17 Misc 2d 461; Sutphen Estates v United States, 342 US 19, 21) and that a judgment fixing the value of property for taxation in one year may be evidence of its assessed value for a succeeding year but is not res judicata (Matter of Woolworth Co. v Tax Comm., 20 NY2d 561, 567; People ex rel. Hilton v Fahrenkopf, 279 NY 49, 52-53).

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

Order affirmed, etc.


text:
    Jerome Beltz, an Infant, by Raymond Beltz, His Father and Natural Guardian, et al., Respondents, v City of Buffalo et al., Appellants.
    Argued December 13, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      John J. Naples, Corporation Counsel (Carl Tronolone of counsel), for City of Buffalo, appellant.

      James R. Walsh and Dale A. Ehman for Cemulini Concrete Construction, Inc., appellant.

      Paul William Beltz and Anne M. Beltz for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs (90 AD2d 955).

After commencing deliberations in this personal injury action, the jury returned to the courtroom and announced a verdict of “five hundred thousand dollars for personal suffering, disability and future medical expenses for Jerome (the infant plaintiff) and negligence on behalf of the defendants of three hundred fifty thousand dollars”. It also reported a verdict for the infant’s father on the derivative cause of action. Defense counsel objected to entry of the verdict, claiming that the infant’s verdict was “inconsistent” and excessive, that the jury’s confusion could not be corrected without a complete recharge, and that the prejudice to defendants was incurable. Plaintiffs’ counsel, agreeing that only one verdict could be returned for the infant plaintiff, requested that the court give the jury supplemental instructions and direct it to reconsider its decision. Over defense counsels’ objection, the court ruled that it would do so. After the court instructed the jury, counsel once again objected generally and without requesting any additional or clarifying instruction.

In view of counsels’ failure to preserve their objections to the procedure adopted by the court and to its supplemental instructions by appropriate exceptions or requests, no legal error is presented. The jury’s subsequent verdict of $850,000 was properly received and judgment entered thereon.

We have considered defendants’ other points and to the extent they have been preserved for our review, we find them without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    Walter J. Schloss Associates, Respondent, v Arkwin Industries, Inc., et al., Appellants.
    Argued December 14, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      Eugene R. Scheiman, Stephen F. Selig, Thomas E. Al-bright and William A. Brandt, Jr., for appellants.

      Stephen Lowey, Bernard A. Green and Edwin A. Wolf for respondent.
   OPINION OF THE COURT

Order reversed, with costs, defendants’ motion to dismiss the complaint granted and question certified answered in the negative for reasons stated in the dissenting opinion by Justice Guy J. Mangano at the Appellate Division (90 AD2d 149, 153-162).

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