text:
    Edward F. Wydallis, Appellant, v United States Fidelity & Guaranty Company, Respondent.
    Submitted September 11, 1984;
    decided October 16, 1984

      APPEARANCES OF COUNSEL

      Harold W. Grubart for appellant.

      Charles T. Rubin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to plaintiff, by reinstating the first and second causes of action of the complaint and, as so modified, affirmed.

In 1978 defendant sold two policies of insurance to Puritan Industries, Inc., a New York corporation, whose principal place of business was Auburn, Massachusetts. The first, an all risk policy, provided coverage in the face amount of $1,265,000. The second, entitled a “Comprehensive Dishonesty, Disappearance and Destruction Policy” provided coverage in the face amount of $25,000. Both policies were subsequently assigned to plaintiff. In June, 1980 Puritan notified defendant that it had sustained a loss by theft in March, 1979. Negotiations seeking reimbursement proved unsuccessful and on November 24,1980 plaintiff brought suit on the policies in New York. That action was dismissed because of defective service on defendant. In October, 1982, within six months of the dismissal, plaintiff instituted the present action which is identical to the dismissed action, asserting two causes of action under the all risk policy and a third cause of action under the comprehensive policy. Defendant moved to dismiss pursuant to CPLR 3211, contending the claims were barred by the Statute of Limitations. Special Term dismissed the third cause of action on the comprehensive policy but denied the motion on the first and second causes of action addressed to the all risk policy. The Appellate Division modified by dismissing the complaint in its entirety.

Both policies were sold and delivered in Massachusetts. The pertinent language of the all risk policy provides: “No suit or action against this company for the recovery of any claim by virtue of this policy shall be sustained in any court of law or equity in this commonwealth unless commenced within two years from the time the loss occurred.” (Emphasis added.)

The comprehensive policy contained similar language but it did not limit the two-year period of limitations to actions brought in Massachusetts.

Plaintiff contends that the action is not barred by the two-year policy limitation, that the original action was commenced within two years and inasmuch as this action was commenced within six months of the prior timely action, the present action is timely under CPLR 205. The prior action was dismissed for want of personal jurisdiction, however, and the statute cannot be applied in that circumstance to extend the period of limitations (see Markoff v South Nassau Community Hosp., 61 NY2d 283). If the applicable Statute of Limitations is two years, then plaintiff’s claim is barred because the present action was commenced more than two years after the loss.

Plaintiff contends that the two-year statute does not apply, that because Puritan was a New York resident it was entitled to benefit of the provisions of CPLR 202, and under New York law the applicable period of limitations is the six-year period provided for contracts generally (CPLR 213, subd 2).

Plaintiff asserts this claim as assignee and accordingly, his rights are those of his New York assignor (see United States Fid. & Guar. Co. v Smith Co., 46 NY2d 498). As a New York resident suing in New York he is entitled to the New York statute if it is in fact longer than the Massachusetts statute.

In this case the comprehensive policy established a contractual limitation applicable to actions in Massachusetts and elsewhere which bound the contracting parties. It did not violate the law or public policy of either New York (see Bargaintown, D.C. v Bellefonte Ins. Co., 54 NY2d 700; Proc v Home Ins. Co., 17 NY2d 239) or Massachusetts. Indeed plaintiff concedes the Massachusetts statutes provide for a two-year limitation period for claims to recover on insurance policies. Accordingly, the courts properly enforced the comprehensive insurance contract according to its terms. The provisions of the all risk policy, however, limited the period for suit only for actions instituted within the Commonwealth of Massachusetts. Accordingly, an action lawfully instituted in New York by a New York resident is governed by this State’s six-year statute.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Harriet Roberts, as Executrix of Edith Rathaus, Deceased, Respondent-Appellant, v Geraldine Jossen et al., Appellants-Respondents.
    Argued September 13, 1984;
    decided October 16, 1984

      APPEARANCES OF COUNSEL

      Janet Cunará for Geraldine Jossen, appellant-respondent.

      Jonathan R. Frank and Steven R. Finkelstein for Citibank, N. A., appellant-respondent.

      Kenneth L. Stein and Gary B. Friedman for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating the award of interest, with costs payable out of the estate to all parties appearing separately and filing separate briefs, and the matter remitted to Surrogate’s Court, New York County, for further proceedings in accordance with this memorandum and, as so modified, affirmed.

These cross appeals involve the ownership and distribution of $200,000 invested in a certificate of deposit of respondent Citibank, N. A. The certificate was originally purchased in the name of the decedent but subsequently transferred by the bank into the joint names of decedent and respondent Jossen, one of her two daughters. It matured January 31,1975, after decedent’s death. The principal and accrued interest on the certificate were held by respondent Citibank, N. A. in a noninterest bearing account from January 31, 1975 until the court ordered the funds deposited at interest by order dated July 31, 1979. Petitioner Roberts is the other daughter of decedent and the executrix of her estate.

Insofar as respondent Jossen appeals from the order of the Appellate Division reversing the determination of Surrogate’s Court that the certificate belonged to her and directing respondent Citibank, N. A. to turn over the funds to the estate, we find that the determination of the facts by the Appellate Division (99 AD2d 1002) more nearly comports with the weight of the evidence and should be sustained. With respect to the cross appeals of respondent Citibank, N. A. and respondent Roberts, however, the order is modified by vacating that portion which directed the bank to pay interest on the funds at the statutory rate from February 1, 1975 to July 31, 1979. Respondent bank points out that the question of its liability to pay interest was disputed in the Surrogate’s Court, never resolved by its decree and was not submitted to the Appellate Division. Its contention is supported by the record which indicates that Surrogate’s Court entered an order after its decision on ownership, five days before executing its decree, specifically holding in abeyance the determination of liability for interest on the invested funds after the maturity until its 1979 order. The reference in the Surrogate’s decree to “all accrued interest” was not intended to alter that prior ruling, but referred to “earned” interest accrued before the certificate matured and after the court’s 1979 order. Accordingly, the order of the Appellate Division should be modified and the matter remitted to Surrogate’s Court for a determination of whether cross appellant Citibank, N. A. is liable to the estate for interest on the funds deposited and if so, the proper rate and period for which interest is due.

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

Order modified, with costs payable out of the estate to all parties appearing separately and filing separate briefs, and matter remitted to the Surrogate’s Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Philip Hirsch, Appellant, v Lindor Realty Corp., Respondent.
    Argued September 7, 1984;
    decided October 16, 1984

      APPEARANCES OF COUNSEL

      Isaac Anolic for appellant.

      Martin Kurlander for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Supreme Court appealed from and the resettled order of the Appellate Division brought up for review should be modified, with costs to defendant, by deleting provisions for dismissal of the complaint and by substituting therefor provisions declaring that plaintiff is not the owner, nor possessed of any right, title or interest held by defendant corporation in the consolidated mortgage, described in the original judgment of the Supreme Court, entered on May 8, 1981, and as so modified, affirmed.

The parties’ course of conduct indicated that the lender waived the time periods for repayment established under the original loan agreement and the option agreement. The latter provided that time was of the essence only as to the last payment due on September 1, 1980, which was a legal holiday. Thus, tender of both the June and final payments on September 2, 1980 was timely (see General Construction Law, § 25, subd 1). Under the circumstances of this case where the covenant was simply for the payment of money and plaintiff has shown no change in his position by the delayed tender of payment, equity may properly “intervene to prevent a forfeiture of a substantial interest despite a technical breach or omission by the holder of the interest” (see W. F. M. Rest. v Austern, 35 NY2d 610, 614; Noyes v Anderson, 124 NY 175,179-181; Giles v Austin, 62 NY 486, 493). The Appellate Division properly cured any defect which may have existed in the method of tender by conditioning its order on the tender of payment again within 30 days of the entry of its order (see Geary v Dade Dev. Corp., 29 NY2d 457, 461-462).

In an action for declaratory judgment, where the disposition is on the merits, the court should make a declaration, even though the plaintiff is not entitled to the declaration he seeks. Thus, the Appellate Division erred here in authorizing dismissal of the complaint on the condition that defendant tender payment of $55,492.28 within 30 days (see Lanza v Wagner, 11 NY2d 317, 334, app dsmd 371 US 74). The appropriate relief was to declare that plaintiff was not the owner of the consolidated mortgage, subject to the same condition (see id.; Greschler v Greschler, 51 NY2d 368, 378).

On this appeal taken pursuant to CPLR 5601 (subd [d]), the only order before this court for review is the prior nonfinal order of the Appellate Division, entered October 5, 1982 (see CPLR 5501, subd [b]). Plaintiff argues that defendant’s method of tender did not satisfy the condition set forth in the Appellate Division’s order. As this involves circumstances occurring after entry of that nonfinal order, it is beyond the scope of this court’s review (see CPLR 5501, subd [b]; 5601, subd [d]; Matter of Board of Educ. v Nyquist, 31 NY2d 468, 472). This was properly a matter to be presented to the Supreme Court when defendant applied for a final judgment in its favor pursuant to the Appellate Division’s order. By choosing to appeal directly to this court from the Supreme Court judgment, plaintiff has waived review of the new matter (see Parker v Rogerson, 35 NY2d 751, 753; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C5601:6, pp 499-500). Review of the merits of the Supreme Court’s final judgment could have been obtained by taking an appeal to the Appellate Division (see First Westchester Nat. Bank v Olsen, 19 NY2d 342, 346-347).

By the same reasoning, defendant’s argument in this court regarding its right to recover payments under the collateral mortgage, that were collected by plaintiff since entry of the Appellate Division’s order, is also beyond the scope of this court’s review on this appeal pursuant to CPLR 5601 (subd [d]). In addition, defendant may not obtain such affirmative relief when it has not appealed any order or judgment to this court.

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

Judgment appealed from and resettled order of the Appellate Division brought up for review modified, with costs to defendant, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Anthony Williams, Appellant.
    Submitted September 7, 1984;
    decided October 16, 1984

      APPEARANCES OF COUNSEL

      Richard F. Timian for appellant.

      Paul A. Carbonaro, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In the course of the selection of the jury for the trial in this case defense counsel’s application to excuse two prospective jurors for cause was denied. In response to counsel’s questions these jurors had said that although they did not associate with blacks they could render a fair and impartial verdict. They also indicated that they did not approve of interracial marriages between blacks and whites but stated that they did not feel that the circumstance that defendant had had a white girlfriend and, although unmarried, they had brought a child into the world would interfere with their verdict. On a more general interrogation of the members of the panel each and every juror answered in the negative as to whether his feelings would affect his ability to sit on this jury and listen fairly and impartially. Each one indicated that, although he might not be in favor of mixed marriages, that fact would not affect his ability to sit on this jury.

Defense counsel was offered an opportunity, of which he did not avail himself, to pursue the matter further.

[I] It was not error to deny the application to excuse these two jurors for cause. This case presents a situation significantly different from that in People v Blyden (55 NY2d 73) on which defendant and the dissenting Justice at the Appellate Division rely. In that case, the juror in question volunteered his desire to speak to the Judge; he disclosed his individualized basis for opposition to minorities in general including blacks (difficulties in connection with his construction job in the course of which he admitted that he had “been known to flip [his] wig” and “got up tight”). At first he stated that he didn’t know whether his feelings would affect his deliberations (“I don’t know if it would or not, and I wouldn’t want to jeopardize this guy’s case, because of that. That is why I came forward.”). Finally, in response to the court’s thrice-repeated question whether he could put aside his feelings about minorities, the juror was prepared to say no more than, “I think I could.” In those circumstances we held that it was error not to have discharged the juror.

In the case before us the only feelings of the jurors were expressed in the abstract, with no disclosure of particular personal conduct ever taken in consequence of such feelings, as was true in Blyden, or any other indication of inability to lay personal predilections aside; and the jurors expressed their confidence that, notwithstanding their feelings, they could listen fairly and impartially and that their feelings would not affect their ability to sit on the jury.

We assume that most if not all jurors bring some predispositions, of varying intensity, when they enter the jury box. It is only when it is shown that there is a substantial risk that such predispositions will affect the ability of the particular juror to discharge his responsibilities (a determination committed largely to judgment of the Trial Judge with his peculiar opportunities to make a fair evaluation) that his excuse is warranted. Were the rule otherwise, it would be difficult not to require the discharge, in every case such as the present in which racial bias if it existed could be said possibly to affect the determination of guilt of the particular defendant, of every potential juror who disclosed anything but total absence of prejudice with respect to racial differences, notwithstanding his stated readiness to lay his feelings aside in the discharge of his duties as a juror.

With respect to defendant’s other contentions before us we observe that there are affirmed findings of fact that defendant had been properly given the preinterrogation warnings to which he was constitutionally entitled, that his subsequent oral inculpatory statement was voluntarily made, and that Trooper Ross had probable cause to arrest him. None of these factual determinations was erroneous as a matter of law. Nor was it error to admit into evidence the tire iron and blue paint chips; the foundation laid was not insufficient because of deficiencies of proof with respect to the chain of custody. Finally, we, too, conclude that the evidence was sufficient to sustain the finding of defendant’s guilt beyond a reasonable doubt.

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

Order affirmed in a memorandum.

       We assume, as apparently did the Appellate Division, that the prescriptions of CPL 270.20 (subd 2) with respect to exhaustion of defendant’s peremptory challenges were met in this instance.


text:
    John Weber et al., Appellants, v City of New York, Defendant, and New York City Housing Authority, Respondent. (And Third- and Fourth-Party Actions.)
    Decided October 16, 1984

      APPEARANCES OF COUNSEL

      Richard D. Friedman for appellant.

      Lester E. Fetell for New York City Housing Authority, respondent.

      John M. Clarke and Joel Blossom for New York Telephone Company, respondent, precluded.
   OPINION OF THE COURT

Memorandum.

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

The order from which the appeal is taken is one which reversed an order of Special Term granting plaintiffs’ motion to set aside the jury verdict as against the weight of the evidence and for a new trial. The determination by the Appellate Division, contrary to that of the Trial Judge, that the verdict was not against the weight of the evidence is beyond our power of review (Goehle v Town of Smith-town, 55 NY2d 995; Rochester Tel. Corp. v Green Is. Constr. Corp., 51 NY2d 788). There must therefore be an affirmance.

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

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


text:
    The People of the State of New York, Appellant-Respondent, v Franklin Johnson, Respondent-Appellant.
    Argued September 12, 1984;
    decided October 16, 1984

      APPEARANCES OF COUNSEL

      William L. Murphy, District Attorney (Karen F. McGee and Sharon L. Norton of counsel), for appellant-respondent.

      Monica Drinane and William E. Hellerstein for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the People’s appeal the Appellate Division correctly held that the defendant’s conviction for forgery must be set aside. The order in that respect is affirmed for the reasons stated in the Appellate Division memorandum (96 AD2d 1083).

On the defendant’s appeal it is contended that his pretrial suppression motion should have been granted with respect to evidence seized by his parole officer from the defendant’s apartment after his arrest on a parole violation warrant.

At the hearing the parole officer testified that the defendant had committed four or five parole violations. The officer had determined that the defendant had been arrested in New Jersey for possession of marihuana, at which time he also possessed a note stating: “Be calm. There’s a bomb in this case. Give me your money or I’ll blow it up”. The officer had also been informed by the FBI that the defendant was under investigation in connection with several recent bank robberies. When the parole officer subsequently observed the defendant driving a car, and attempted to stop him, he was unable to apprehend him. From the license plate number the officer discovered that the car had been rented from an agency approximately six months earlier, and had not been returned. The officer had also learned that the defendant’s name did not appear in the rental agreement and that the defendant was residing, and keeping the car, at an address other than that listed in the rental agreement.

Under all of these circumstances it cannot be said that the trial court erred, as a matter of law, in concluding that the search of the defendant’s apartment by his parole officer, with police assistance, after his arrest on the parole warrant “was in furtherance of parole purposes and related to his duty as a parole officer” (cf. People v Huntley, 43 NY2d 175).

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

Order affirmed in a memorandum.


text:
    John J. Naples, Respondent, v Robert E. Whelan, Appellant.
    Decided October 16, 1984

      APPEARANCES OF COUNSEL

      Nicholas J. Sargent and David A. Ferster for appellant.

      John J. Naples, Corporation Counsel {James J. McLoughlin of counsel), respondent pro se.

   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (100 AD2d 743).

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


text:
    Genevieve Scacchetti, Formerly Known as Genevieve Lonobile, Respondent, v Carl Lonobile, Appellant.
    Decided October 16, 1984

      APPEARANCES OF COUNSEL

      Steven M. Donsky and Herbert Roisman for appellant.

      Charles A. Schiano and John P. Mansour for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal is dismissed, without costs.

Defendant in this partition action appeals from a judgment of the Supreme Court, Monroe County, which was necessarily affected by an order of the Appellate Division on a prior appeal in the action. Defendant bases his appeal as of right pursuant to CPLR 5601 (subd [d]), on the fact that the prior nonfinal order of the Appellate Division modified an order of the Supreme Court and thus apparently would have been appealable as a matter of right under CPLR 5601 (subd [a], par [iii]) but for the lack of finality.

The Appellate Division modification, however, was based on that court’s power to exercise its discretion to determine the appropriate distribution of the proceeds of a partition sale, an action for partition being equitable in nature. As there is nothing in the record to suggest that the court abused its discretion as a matter of law or that the result is so outrageous as to shock the conscience, the modification was a nonreviewable act of discretion and the order is thus not appealable as of right (Patron v Patron, 40 NY2d 582).

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


text:
    In the Matter of Frederick Boutelle, Appellant, v Keith J. McLean, as Administrator of the Orange County Jail, et al., Respondents.
    Decided October 16, 1984
   Appeal transferred to the Appellate Division, Second Department, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    C. Jeffrey Dufur, Respondent, v Bowling Green Lanes, Inc., Appellant, et al., Defendants. Matthew Lavin, Respondent, v Bowling Green Lanes, Inc., Appellant, et al., Defendants.
    Submitted July 30, 1984;
    decided October 16, 1984
   Motion by Matthew Lavin to dismiss the appeal granted and the appeal dismissed as against Matthew Lavin, defendant in action No. 1 and plaintiff in action No. 2, with costs and $20 costs of motion, upon the ground that the portions of the order appealed from pertaining to Matthew Lavin do not finally determine the action within the meaning of the Constitution.

Motion by plaintiff Dufur to dismiss the appeal as against him denied.


text:
    In the Matter of Martin B. Klein, a Judge of the New York City Civil Court, Bronx County, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Submitted October 1, 1984;
    decided October 16, 1984
   Motion to remand this proceeding to the Commission on Judicial Conduct for consideration of additional facts or, in the alternative, to supplement the record on review, denied in both respects without prejudice to an application to the Commission for reconsideration based on such additional facts; review will be held in abeyance pending the decision on such application.

Judge Kaye taking no part.


text:
    Sidney Koch et al., Respondents, v Putnam-Northern Westchester Board of Cooperative Educational Services, Appellant, and Bedford Union Free School District et al., Respondents.
    Submitted October 8, 1984;
    decided October 16, 1984
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements for the respondents’ opposing affidavit only, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not the type of nonfinal order that comes within the meaning of CPLR 5602 (subd [a], par 2).


text:
    In the Matter of New York State Inspection, Security and Law Enforcement Employees, District Council 82, American Federation of State, County and Municipal Employees, AFL-CIO, by its President Richard Bischert, et al., Appellants, v Mario M. Cuomo, as Governor and Chief Executive Officer of the State of New York, et al., Respondents.
    Submitted October 8, 1984;
    decided October 16, 1984
   Motion for leave to appeal denied as unnecessary. Motion for a stay denied. Motion for preference granted and case set down for argument during the week of November 12, 1984, appellants’ papers on appeal to be served and filed on or before October 22 and respondents’ on or before November 2, 1984.


text:
    The People of the State of New York, Respondent, v Lemuel Smith, Appellant.
    Submitted October 8, 1984;
    decided October 16, 1984
   Motion for a stay dismissed upon the ground that no action or proceeding is presently pending before this court.


text:
    Allan D. Shapiro et al., Appellants, v John M. Robinson et al., Defendants, and Scodek Construction Corporation, Respondent.
    Decided October 18, 1984

      APPEARANCES OF COUNSEL

      James W. Winslow for appellants.

      Vincent Geraci for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that there is no tender of evidence sufficient to support the contention that Robinson was an employee of Scodek. Nor was any evidence tendered from which it could be concluded that Scodek was negligent in selecting Robinson as an independent contractor or in delegating to him responsibility for delivery of the trailer to a construction site. Finally, the fact that Scodek’s president passed the disabled tractor trailer some hours before the accident and gave Robinson a credit card (which was never used) to enable him to obtain repairs to the tractor trailer cannot serve to create a relationship warranting imposition of liability on Scodek for Robinson’s subsequent alleged negligent operation of the tractor trailer.

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

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


text:
    Thomas F. Perna, Individually and as Agent for an Undisclosed Principal, Appellant, v Anil Desai et al., Respondents.
    Decided October 18, 1984

      APPEARANCES OF COUNSEL

      Howard E. Berman for appellant.

      Joseph P. Kirley for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 857).

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


text:
    Jon E. Scharlack, an Infant, by Helen Scharlack, His Mother and Natural Guardian, Plaintiff, v Richmond Memorial Hospital et al., Appellants, and Lawrence Viola et al., Respondents.
    Decided October 18, 1984

      APPEARANCES OF COUNSEL

      GaryD. Centola for Richmond Memorial Hospital, appellant.

      Kenneth Mauro for Leroy Schwartz and another, appellants.

      Bert W. Subin and Sally Weinraub for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (103 AD2d 739).

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


text:
    Thomas Torelli, as Administrator of the Estate of James Torelli, Deceased, Respondent, v John Esposito, Defendant, and Rachel Esposito, Appellant.
    Decided October 18, 1984
    APPEARANCES OF COUNSEL

      James J. Harrington for appellant.

      Richard M. Resnick for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and order brought up for review should be reversed, with costs, and the plaintiff’s motion for summary judgment denied.

The parties executed a promissory note and stock purchase agreement under which plaintiff’s decedent sold defendants certain shares of stock in return for a $365,000 interest-bearing promissory note. On defendant’s default, plaintiff moved for summary judgment to enforce the written contract. Special Term denied the motion because questions of fact existed as to the failure of consideration. The Appellate Division reversed, finding defendants’ allegations in response to the motion conclusory and unsupported by factual substance or documentary evidence. We disagree. In opposing the summary judgment motion, defendant John Esposito provided a detailed recitation of the negotiations among the parties and the closing of the contract. This recitation, based on defendant’s firsthand knowledge, directly supported his allegation that plaintiff’s decedent did not own the subject stock, that the sale had never in fact occurred, and that the obligation to pay therefore lacked consideration, and he offered an explanation for the absence of documentary evidence. These allegations cannot be dismissed as conclusory or speculative (compare Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and plaintiff’s motion for summary judgment denied in a memorandum.


text:
    In the Matter of A. Harry Kupersmith, Appellant, v Public Health Council of the State of New York et al., Respondents.
    Decided October 18, 1984

      APPEARANCES OF COUNSEL
    A. Harry Kupersmith, pro se, and Linda E. Kupersmith, for A. Harry Kupersmith, appellant.

      Robert Abrams, Attorney-General {Julie S. Mereson and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 918).

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


text:
    In the Matter of Frank Eberhart et al., Respondents, v Katherine Garber, Appellant.
    Submitted August 27, 1984;
    decided October 18, 1984
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (NY Const, art VI, § 3, subd b; CPLR 5602).


text:
    In the Matter of Inland Vale Farm Company et al., Respondents, v Panagiotis G. Stergianopoulos et al., Constituting the North Salem Planning Board, Respondents, and Cambridge Associates, by Frank Zarro, General Partner, Appellants.
    Submitted October 8, 1984;
    decided October 18, 1984
   Motion to dismiss appeal taken as of right denied. Motion for leave to appeal denied upon the ground that an appeal lies as of right. Motion for a stay granted.


text:
    In the Matter of Ismet Vucetovic, Appellant, v City of New York Police Department, Respondent.
    Submitted August 20, 1984;
    decided October 18, 1984
   Motion, insofar as it seeks leave to appeal from the July 12, 1984 order denying leave to appeal to this court, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal otherwise, denied.


text:
    In the Matter of Thomas A. Fink et al., Respondents, v George D. Salerno et al., Constituting the New York State Board of Elections, Respondents. James H. Boomer et al., Proposed Intervenors-Appellants.
    Submitted October 17, 1984;
    decided October 18, 1984
   Motion for leave to appeal dismissed and, on the court’s own motion, appeal taken as of right dismissed, without costs, each upon the ground that the order of the Appellate Division, insofar as it aggrieves the “proposed intervenorsappellants”, does not finally determine the proceeding within the meaning of the Constitution.


text:
    Felix Cosme, Plaintiff, v Town of Islip, Defendant. (Action No. 1.) Felix Cosme, Appellant, v Gregory W. Munson et al., Respondents. (Action No. 2.)
    Decided October 23, 1984

      APPEARANCES OF COUNSEL

      Warren H. Richmond, III, and Lawrence F. Spirn for appellant.

      Brian W. McElhenny for respondents.
   OPINION OF THE COURT

Memorandum.

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

Defendant Town Supervisor Peter F. Cohalan, as an executive officer of a local government, was entitled to an absolute privilege for statements made during the discharge of his responsibilities about matters within the ambit of his duties (Clark v McGee, 49 NY2d 613, 617; see Stukuls v State of New York, 42 NY2d 272, 278).

Although there may be some question about whether defendants Frank Jones and Gregory Munson were entitled to an absolute or qualified privilege, it is clear that they were at least entitled to a qualified privilege and, although malice is alleged in the complaint, no evidence was presented to show a wrongful intent to harm plaintiff. Nor was there any evidence, aside from plaintiff’s conclusory allegations, to indicate disregard for the truth, much less reckless disregard for the truth (see Zuckerman v City of New York, 49 NY2d 557, 562). Absent a showing of malice, the existence of a qualified privilege on behalf of defendants Jones and Munson leaves no issue of fact to be passed upon by the jury.

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

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


text:
    Gary M. Hugelmaier, Appellant, v Town of Sweden, Respondent, et al., Defendants.
    Decided October 23, 1984

      APPEARANCES OF COUNSEL

      Eileen E. Buholtz for appellant.

      William L. Dorr for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order entered on appeal No. 1 affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (101 AD2d 995; cf. Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201). Appeal from order entered on appeal No. 2 dismissed, without costs, upon the ground that the order does not finally determine the action within the meaning of the Constitution.

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


text:
    The People of the State of New York, Respondent, v Willie Blacknall, Appellant.
    Decided October 23, 1984

      APPEARANCES OF COUNSEL

      Mariann Sullivan and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Patricia C. Meyers of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed and the case remitted to Criminal Court, New York County, for further proceedings on the accusatory instrument.

Failure of the Trial Judge to include in the jury charge, as requested, the statutory definitions of “deprive” and “appropriate” (see Penal Law, § 155.00, subds 3, 4) was reversible error in this attempted larceny case. There is no requirement, as the Appellate Term found, that a “unique and difficult” larcenous intent issue be presented by the evidence before such amplifying definitions must be given. In this case, evidence presented by the prosecution showed that defendant had been seen striking several women in the back of the head before he reached out and pulled an earring from the victim, that the earring fell to the ground, and that by the time defendant was arrested, the victim and the earring both had vanished. We agree with the analysis of Justice Sandifer, in his dissent, that in such circumstances the omission of the statutory definitions requested to be charged “could have misled the jury into thinking that any withholding, permanent or temporary, constituted larceny” (People v Matthews, 61 AD2d 1017).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Criminal Court of the City of New York, New York County, for further proceedings on the accusatory instrument in a memorandum.


text:
    City of Buffalo Urban Renewal Agency, Respondent, v Ida Atkin, Respondent, and Realty Settlement Corp. et al., Appellants.
    Submitted June 18, 1984;
    decided October 23, 1984
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division dated January 27, 1984 which affirmed so much of the order of Supreme Court dated February 15, 1983 as dismissed the action against defendants Martin, Permanent Savings Bank, Gould, Baynes Construction Company, Inc., Gross, Sherman, Brizdle, Laub & Gilfillian, P. C., County of Erie, City of Buffalo and the Buffalo Sewer Authority, denied; motion otherwise dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Twenty dollars costs and necessary reproduction disbursements to respondent Atkin.


text:
    In the Matter of Alex Schwartz et al., Appellants, v New York City Transit Authority et al., Respondents.
    Decided October 23, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that the modification at the Appellate Division is not in a respect reviewable by the Court of Appeals and the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], pars [i], [iii]; see Chemical Bank v Von Bulow, 63 NY2d 221).


text:
    Deli of Latham, Inc., Appellant, v Joseph P. Freije, Respondent.
    Decided October 25, 1984

      APPEARANCES OF COUNSEL

      Brendan C. O’Shea for appellant.

      George A. Roland for respondent.
   opinion of the court

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 935).

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


text:
    Brendon Hasbrouck, an Infant, by Shirley Phillips, His Mother and Natural Guardian, et al., Appellants, v City of Gloversville, Respondent, et al., Defendant.
    Decided October 25, 1984

      APPEARANCES OF COUNSEL

      Thomas M. Pérsico for appellants.

      Diane Bresee Mayherger for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (102 AD2d 905). The affidavit of the eyewitness which was not before the courts below cannot be considered.

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


text:
    In the Matter of Nicholas Marlow, Appellant, v James Tully, as Commissioner of the Department of Taxation and Finance of New York State, Respondent.
    Decided October 25, 1984

      APPEARANCES OF COUNSEL

      Nicholas J. Marlow, appellant pro se.

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

Memorandum.

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

Appellant, formerly a pari-mutuel examiner in the State Department of Taxation and Finance, by this article 78 proceeding seeking reinstatement, challenges his termination as unlawful, arbitrary and capricious. Appellant was appointed May 10, 1979 and terminated October 10, 1979. Prior to his appointment, appellant completed a form indicating his willingness to accept the position on a temporary or permanent basis. Appellant insists his appointment was permanent, subject only to an eight-week probationary period, which passed without incident. Respondent contends that the appointment was temporary, until receipt and processing on June 7, 1979 of appellant’s signed Form S-203 (a form promulgated by the Department of Civil Service) disposing of veterans’ preference credits he had claimed on the competitive examination for the position, and that it properly extended appellant’s probationary period on July 25 and properly terminated him on October 10 without a hearing. The issue posed by this appeal is whether respondent, by implementing an administrative procedure of the Department of Civil Service requiring that employment remain temporary until a completed Form S-203 is processed, impermissibly denied or impaired benefits afforded appellant, as a veteran, by section 85 of the Civil Service Law.

While the Civil Service Department unquestionably may establish its own rules and internal operating procedures (see Civil Service Law, § 6, subd 1; see, also, Matter of Cady [Aetna Life & Cas. Co.], 61 NY2d 594), its rules and procedures cannot be “inconsistent with some specific statutory provision” (see Ostrer v Schenck, 41 NY2d 782, 785), or erect a barrier to a benefit conferred by the Legislature (see Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539). But here there is no inconsistency or barrier, as alleged. Appellant claimed veterans’ preference credits on his employment application, and this benefit is by statute available only once in a lifetime (Civil Service Law, § 85, subd 4, par [a]). Because of his score on the examination, appellant did not actually need the additional credits for the appointment, and the credits were automatically preserved for his later use (Civil Service Law, § 85, subd 4, par [c]). Form S-203 in no way denied or impaired the benefit set forth in section 85, but is instead an administrative procedure for assuring that the veterans’ preference credits, though claimed, would later be available to appellant. Nor can we say that such a procedure, which had the purpose of enhancing the accuracy of information as to those who had claimed credits, and which applied equally to all persons in this category, was discriminatory or arbitrary.

We have considered appellant’s remaining arguments and find them to be without merit.

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

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


text:
    In the Matter of Dominick A. Fusco et al., Respondents, v Robert S. Black et al., Respondents, and Richard G. Gugliotta et al., Appellants.
    Submitted October 23, 1984;
    decided October 25, 1984
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the dissent at the Appellate Division is not in favor of appellants.


text:
    In the Matter of Plainview-Old Bethpage Congress of Teachers et al., Respondents, v Board of Education of the Plainview-Old Bethpage Central School District et al., Appellants.
    Decided October 30, 1984

      APPEARANCES OF COUNSEL

      Gregory J. Guercio and Joseph W. Campanella for appellants.

      Stanley A. Immerman and Robert D. Clearfield for respondents.
   OPINION OF THE COURT

Memorandum.

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

Measurement of the 30 to 90 days time period within which payroll deductions may be taken does not commence until the employees concerned have been notified individually of the determination that they have committed a violation. (Matter of King v Carey, 57 NY2d 505, 514; Civil Service Law, § 210, subd 2, pars [d], [e], [f].) The decision in Matter of De Lury v Beame (49 NY2d 155) is not to be construed inconsistently with this statutory requirement.

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

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


text:
    The People of the State of New York, Appellant, v Benjamin Quarles, Respondent.
    Submitted October 18, 1984;
    decided October 30, 1984

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Steven J. Rappaport of counsel), for appellant.

      Steven J. Hyman for respondent.
   OPINION OF THE COURT

Memorandum.

On remand from the Supreme Court of the United States, the order of the Appellate Division should be reversed and the case remitted to Supreme Court, Queens County, for a determination, on the record of the suppression hearing held on March 6, 1981, of defendant’s assertion in support of his suppression motion that his statements to Officer Kraft following his apprehension on September 11, 1980 were not made voluntarily.

On his motion to suppress his statements and the gun, both in the notice of motion and in the supporting affidavit, defendant expressly advanced the claim that his admission had been involuntary. At the suppression hearing he sought to elicit testimony in support of this contention. The suppression court, however, granting suppression on the ground that defendant had not been given the preinterrogation warnings to which he was constitutionally entitled, never reached or determined the issue of involuntariness. The United Státes Supreme Court having held that suppression was not warranted on the ground relied on by the hearing court, the case must be returned to the hearing court for its determination of defendant’s claim of involuntariness.

Inasmuch as the issue was raised and defendant had full opportunity to offer evidence, there is no occasion, however, to order a new evidentiary hearing; the question should be resolved on the record of the prior hearing (People v Havelka, 45 NY2d 636, 642-644). Accordingly, the case is remitted to Supreme Court, Queens County, for such determination, preferably by the Justice before whom the suppression hearing was held.

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

On reargument following remand by the Supreme Court of the United States, order reversed and case remitted to Supreme Court, Queens County, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Kevin McNulty, Respondent, v Allstate Insurance Company, Appellant.
    Decided October 30, 1984

      APPEARANCES OF COUNSEL

      Roy Karlin and Benjamin Purvin for appellant.

      Dean Steven Travalino for respondent.
   opinion of the court

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (102 AD2d 815; see, also, Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207).

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


text:
    In the Matter of the Adoption of Daniel C., an Infant. James N. S. et al., Respondents; Claire C., Appellant. Robert Abrams, as Attorney-General of the State of New York, Intervenor-Respondent.
    Argued September 12, 1984;
    decided October 30, 1984

      APPEARANCES OF COUNSEL

      Robert H. Silk for appellant.

      Robert Goldstein for respondents.

      Robert Abrams, Attorney-General (Florence E. Abrams, Peter H. Schiff and Robert Schack of counsel), intervenorrespondent pro se.

   OPINION OF THE COURT

Memorandum.

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

We do not find it necessary to reach the question whether section 115-b of the Domestic Relations Law requires that a consent form recite the effect of a notice of revocation set forth in subdivision 1 (par [d], cl [ii]) of that section or appellant’s contention that a consent form which fails to do so is constitutionally infirm. By reason of appellant’s counsel’s concession that she did not claim to have been misled by the form, the adoptive parents were foreclosed from introducing evidence of her awareness of the provisions of the statute. She is, therefore, without standing to raise the issues referred to above.

Jasen, J. (dissenting). In this important case involving the fundamental right of a mother to her child, the majority summarily refuse to reach the constitutional and statutory questions presented, but rather, simply hold that the mother is “without standing to raise the issues”. Since I believe the appellant mother has standing to challenge the sufficiency of the consent form she executed, I would reach the constitutional and statutory issues and hold that the consent form signed by the natural mother is incompatible with section 115-b of the Domestic Relations Law and, further, that interpreting the consent form as irrevocable violates basic concepts of due process by permanently depriving the natural mother of her child without a clear and convincing showing that she actually intended to surrender or forfeit her rights as a parent.

On the issue of standing, the mother’s right to raise the constitutional and statutory issues is established by the requirements set forth by the Legislature in enacting section 115-b of the Domestic Relations Law which prescribes the conditions to be met in making a private placement consent valid. In my view, there can be no dispute that the consent form in question did not satisfy the statutory requirements.

In this adoption proceeding, contested by the natural mother, the basic facts are not in dispute. The natural mother, a college senior, became pregnant with Daniel C. Ashamed because she was unmarried, she kept her pregnancy a secret from her family. However, because of her Roman Catholic faith and a love for the unborn child, she did not consider having an abortion. She believed her best alternative was to have the child and then place it for adoption, with her parents never knowing of its existence. She did not see a doctor until her sixth month of pregnancy, at which time she selected a physician from the telephone book. At her first examination, she spoke to the physician about her wish to give the child up for adoption. The physician contacted Mr. and Mrs. S., petitioners herein, as prospective adoptive parents. The physician also referred the mother to an attorney.

The baby was born on December 9, 1981, and three days later, as she left the hospital, the mother turned the baby over to a representative of the prospective adoptive parents.

On January 20, 1982, the natural mother signed an “irrevocable consent” form in her attorney’s office. The pertinent part of the form reads as follows:

“I, CLAIRE C., residing at Newburgh, New York, natural (mother) of DANIEL C. do hereby irrevocably consent to the Private Placement Adoption of my (son) DANIEL C., born on December 9,1981. I understand that in the event that this Consent is not executed before a Judge of the Surrogate’s Court of the County of Westchester, then and in that event this Consent shall become irrevocable thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall be received by this Court within said thirty days.

“The name and address of the Court in which the adoption proceeding is to be commenced is: Surrogate’s Court, County of Westchester, Address: County Courthouse, 111 Grove St., White Plains, New York 10601.”

After much soul-searching, the natural mother made a decision to revoke her consent to the adoption and, on March 22, 1982, told her family about the child and that she was going to keep him. The same day she called her attorney and told him she was revoking her consent.

On March 24, 1982, the prospective adoptive parents initiated adoption proceedings. Six days later, on March 30,1982, the natural mother formally revoked her consent by filing a notice to that effect with the court. There is no dispute that her notice of revocation was timely under both the statute and the explicit provisions of the consent form.

After a hearing, Surrogate’s Court denied the natural mother’s request to withdraw consent and ordered that the petition for adoption made by the adoptive parents proceed in normal course pursuant to section 115-b of the Domestic Relations Law. That court, while acknowledging that a person “not familiar with the provision of section 115-b of the Domestic Relations Law, could easily infer from the language of the [consent] form that where the consent was not executed before a Judge it could be revoked and upon revocation the parties would be restored to a status quo position”, nevertheless held that “the form obviously must be read in conjunction with the governing statute, and when this is done it is clear that upon revocation the child is not automatically returned to his natural parents.” (115 Misc 2d 130, 133.) Notwithstanding the likelihood of a natural mother being deceived by the language of the consent form, the court found that “no deception was practiced on the natural mother and that she understood the consequences of her act when she executed the consent.” (115 Misc 2d, at p 134.)

The Appellate Division affirmed the order of the Surrogate, holding that the natural mother lacks standing to challenge the constitutionality of the statutory provisions concerning the extrajudicial consent to the private placement adoption. The court predicated its decision on the statement of the natural mother’s attorney, made in her presence in open court, that his client was not claiming that she had been misled by the language of the consent form.

Because, in my view, the statutory provisions and the mandates of due process require greater protection for a natural mother’s right to her child than that afforded by the courts below, I would reverse the order of the Appellate Division and deny the adoption petition.

In 1972, the Legislature enacted section 115-b of the Domestic Relations Law specifically providing for exclusive means by which private adoptions are to be carried out. The statute, entitled “Special provisions relating to consents in private-placement adoptions”, reads as follows:

“1. If a duly executed and acknowledged consent to a private-placement adoption shall so recite, no action or proceeding may be maintained by the consenting parent for the custody of the child to be adopted, and no such consent shall be revoked by such parent if:

“(a) The consent sets forth the name and address of the court in which the adoption proceeding is to be commenced; and

“(b) A copy of such consent was given to such parent upon the execution thereof; and

“(c) The consent was executed or acknowledged before a judge or surrogate of the court in which the adoption proceeding is to be commenced and such consent states that it shall become irrevocable upon such execution or acknowledgment; or

“(d) The consent was not executed or acknowledged before a judge or surrogate of the court in which the adoption proceeding is to be commenced, in which case,

“(i) Such consent shall, if it shall so state, become irrevocable thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall have been received by the court within said thirty days.

“(ii) Notwithstanding that such written notice shall have been received within said thirty days, the notice of revocation shall be given effect only if the adoptive parents fail to oppose such revocation, as provided in subdivision three of this section, or, if they oppose such revocation and that court as provided in subdivision three of this section shall have determined that the best interests of the child will be promoted by giving force and effect to such revocation.

“2. At the time that a person appears before a judge or surrogate to execute or acknowledge a consent to adoption, the judge or surrogate shall inform such person of the consequences of such act pursuant to the provisions of this section.

“3. (a) A parent may revoke his consent to adoption only if it has not become irrevocable under the provisions of this section and only by giving notice, in writing, of such action to the court in which the adoption proceeding has been or is to be commenced. Such notice shall set forth the address of the parent and may, in addition, set forth the name and address of the attorney for the parent.

“(b) If, at the time of filing of the petition for adoption, or within thirty days thereafter, the court has received or shall receive such notice of revocation, the court shall promptly notify the adoptive parents, by notice in writing to them and to their attorney, of the receipt by the court of such notice or revocation.

“(i) Such notice to the adoptive parents shall set forth that unless, within ten days from the date of such notice the court shall receive from the adoptive parents notice, in writing, of their intention to oppose such revocation by the parents, the adoption proceeding will be dismissed and that, in case of such dismissal, the court will send to the parents and to the adoptive parents the notice of dismissal, as provided in paragraph (c) of this subdivision.

“(ii) Such notice to the adoptive parents shall further set forth that if, within ten days from the date of such notice, the court shall receive from the adoptive parents notice, in writing, of their intention to oppose such revocation by the parents, the court will, upon notice to the parents and to the adoptive parents, proceed, as provided in paragraph (d) of this subdivision, to a determination of whether such notice of revocation by the parents shall be given force and effect and to a determination of what disposition shall be made of the custody of the child.

“(c) If the adoption proceeding is dismissed pursuant to the provisions of paragraph (b) of this subdivision,

“(i) Written notice of such dismissal shall forthwith be sent to the parent or, if represented by attorney, to the attorney for the parent, and to the attorney for the adoptive parents.

“(ii) Such notice of dismissal shall set forth the name and address of the parent, the name and address of the attorney for the parent, if any, the name and address of the attorney for the adoptive parents.

“(iii) Such notice of dismissal shall further set forth that if the child is not returned to the custody of the parent within ten days from the date of such notice of dismissal, the court will forthwith upon request, in writing, by the parent or by the attorney for the parent, furnish to said parent or attorney so requesting, the names and addresses of the adoptive parents.

“(iv) Such notice of dismissal shall further state that, in the event the custody of the child is not returned to the parent by the adoptive parents upon request therefor, a proceeding to obtain custody may be instituted by the parent in the Supreme Court or the Family Court.

“(d) If, pursuant to the provisions of paragraph (b) of this subdivision, the adoptive parents shall give notice of their intention to oppose the revocation of the parent’s consent,

“(i) The court shall promptly notify, in writing, the parent or the attorney for the parent, if any shall have been named in the notice of revocation, and the attorney for the adoptive parents, that the court will, upon the date specified in such notice by the court, or as soon thereafter as the parties may be heard pursuant to this paragraph, hear and determine whether revocation of the consent of the parent shall be permitted and, in any event, hear and determine what disposition should be made with respect to the custody of the child.

“(ii) The court shall, upon the date specified, take proof as to whether the best interests of the child will be promoted by the return of the child to the parents, or by the adoption of the child by the adoptive parents, or by placement of the child with an authorized agency for foster care with or without authority to consent to the adoption of the child, or by other disposition of the custody of the child.

“(iii) If the court shall determine that the best interests of the child will be served by returning custody of the child to the parent or by placement of the child with an authorized agency or by disposition other than adoption by the adoptive parents, the revocation of consent shall be given force and effect and the court shall make such disposition of the custody of the child as will best serve the interests of the child.

“(iv) If the court shall determine that the best interests of the child will be served by adoption of the child by the adoptive parents, the court shall enter an order denying any force or effect to the notice of revocation of consent and shall dispose of the custody of the child as if no such notice of revocation had been given by the parent.

“(v) In such proceeding the parent or parents who consented to such adoption shall have no right to the custody of the child superior to that of the adoptive parents, notwithstanding that the parent or parents who consented to the adoption are fit, competent and able to duly maintain, support and educate the child. The custody of such child shall be awarded solely on the basis of the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular custodial disposition.

“4. Nothing contained in this section shall limit or affect the power and authority of the court in an adoption proceeding, pursuant to the provisions of section one hundred sixteen of this title, to remove the child from the home of the adoptive parents, upon the ground that the welfare of the child requires such action, and thereupon to return the child to a natural parent or place the child with an authorized agency, or, in the case of a surrogate, transfer the child to the family court; nor shall this section bar actions or proceedings brought on the ground of fraud, duress or coercion in the execution or inducement of an adoption consent.”

That statute recognizes only two procedures by which an act of surrender may be effectuated: one being in court, and the other strictly between the parties. The first, a judicial consent, becomes absolutely irrevocable when “executed or acknowledged before a judge of the court in which the adoption proceeding is to be commenced” (subd 1, par [c]), “if” the consent form itself recites that the parent’s consent “shall become irrevocable upon such execution or acknowledgment” (subd 1, par [c]).

The second type of consent, extrajudicial, is not executed or acknowledged before a Judge. In contrast with the judicial consent, this extrajudicial one is not absolutely irrevocable upon its execution. Rather, it only becomes irrevocable 30 days after the commencement of the adoption proceeding, and even then, only when no “written notice of revocation thereof shall have been received by the court within said thirty days.” (Subd 1, par [d], cl [i].) If the natural parent withdraws the consent, the prospective adoptive parents must be informed and, if they do not oppose the withdrawal of consent, the adoption petition will be dismissed and the child returned to the natural parent (subd 3, par [b], cl [i]; par [c]). However, should the prospective adoptive parents oppose the revocation, the court shall conduct a hearing to “determine whether revocation of the consent of the parent shall be permitted and, in any event, hear and determine what disposition should be made with respect to the custody of the child”, based on an evaluation of the best interests of the child (subd 3, par [d], els [i], [ii]).

This adoption statute, being in derogation of natural rights and the common law and existing only by enactment of the Legislature, must be strictly construed. (Carpenter v Buffalo Gen. Elec. Co., 213 NY 101, 104.) The execution of any consent must comply with the legal rights and requirements as defined therein. Thus, the critical issue presented is whether the contents of the extrajudicial consent executed by the natural mother complied with the requirements of the statute.

In my view, an extrajudicial consent form, to be valid and enforceable under the statute and to satisfy basic concepts of due process, must fully inform the natural mother of her rights as well as the consequences of her executing the form, particularly the extent of her right of revocation. It was necessary to inform her that revocation would not, in fact, effectuate a complete withdrawal of her initial consent or entirely undo the drastic consequences thereof. She should have been clearly warned that even if she were timely to revoke her consent, the child would not necessarily be returned. The form which she signed should have unambiguously explained that the prospective adoptive parents could oppose her revocation, and that the fate of the child would then be determined by the court, without any presumption in the natural mother’s favor.

The consent form executed by the natural mother here stated no such thing. It apprised the natural mother of none of the foregoing drastic ramifications of her presumedly tentative consent. Rather, as set forth hereinbefore, the form signed by the natural mother clearly and unequivocally states only that “this Consent shall become irrevocable thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall be received by this Court within said thirty days.” (Emphasis added.) (Domestic Relations Law, § 115-b, subd 1, par [d], cl [i].)

Completely omitted from the consent form is any mention of the statutory qualifications to this right of revocation. In the statutory scheme, these qualifications immediately follow the clause recited on the form. The omitted provisions state that: “Notwithstanding that such written notice shall have been received within said thirty days, the notice of revocation shall be given effect only if the adoptive parents fail to oppose such revocation * * * and the court as provided in subdivision three of this section shall have determined that the best interests of the child will be promoted by giving force and effect to such revocation.” (Domestic Relations Law, § 115-b, subd 1, par [d], cl [ii].)

Certainly this clause was inserted in the statute by the Legislature to insure that the natural parent is apprised of her rights and the consequences of her actions before signing a consent to the adoption of her child. Moreover, the initial phrase of subdivision 1 establishes an unambiguous condition precedent to the irrevocability of any private-placement adoption — i.e., “If a duly executed and acknowledged consent to a private-placement adoption shall so recite”. (Emphasis added.) This can only mean that what follows in subdivision 1 — including the afore-quoted clause — must be contained in the consent form in order to satisfy the statutory requirements and, thereby, render the natural mother’s consent irrevocable.

Thus, where a consent form fails to fully apprise a natural mother of her rights and the consequences of her signing a consent to the adoption of her child, the consent is neither a knowledgeable one nor adequate under the statute and, therefore, is without effect. Just as a natural parent who executes an irrevocable consent in front of a Judge or Surrogate must be fully informed by the latter as to the consequences of signing a consent (subd 1), so, too, must a natural parent signing an extrajudicial consent form be fully aware of the legal consequences of her action. “After all”, as Justice Gibbons aptly observed in his thorough and thoughtful dissenting opinion, “a Judge or Surrogate, by definition, is not present to make sure that the parent is truly aware of what is happening. In such a situation, the consent form itself must provide the necessary information. I do not believe that the Legislature would be so sensitive to the need to inform a parent who signs a judicial consent, but would ignore the equally vital need to make certain that a signer of an extrajudicial consent has, at least, the basic legal facts before him or her. In words of Chief Judge (then Judge) Fuld, speaking for a unanimous Court of Appeals faced with a similar apparent discrepancy in a statute: ‘Manifestly, to differentiate between the two situations would not only be completely illogical and unrealistic but would, indeed, serve to thwart the very policy considerations underlying the statute. Absent clear language to that effect * * * we will not ascribe such ambivalent intention to the Legislature’ (Matter of Hogan v Culkin, 18 NY2d 330, 335).” (99 AD2d, at pp 59-60.)

I believe the legislative history of section 115-b makes abundantly clear that the policy considerations underlying the statute were to provide a legal framework for future adoptions with due regard for the rights of the child, the natural mother and the adoptive parents, and to provide adequate safeguards to the natural mother against an improvident decision by her to give up the child for adoption by “assuring that she will be fully informed as to the consequences of her action and of her right of revocation.” (Memorandum in Support, Assemblyman Pisani, Chief Sponsor, Bill Jacket, L 1972, ch 639.)

In addition to holding that the consent form in issue is statutorily deficient, I would also hold that it was constitutionally infirm. In a consensual adoption proceeding, due process requires that the extrajudicial consent form executed by a natural mother be sufficient in form to fully and clearly inform her of the consequences of her action. This was not done here. The consent form did not recite any of the effects of its execution except that it would become irrevocable 30 days after the commencement of the adoption proceeding unless written notice of revocation thereto were given within that period. Appellant understood it to mean precisely what it said — that it would have no irrevocable effect unless she failed to serve a notice of revocation within 30 days. There was no warning that the mere signing of this consent form would constitute a waiver of her constitutional right of primacy over prospective adoptive parents for the right to raise her child. (Cf. People ex rel. Anonymous v New York Foundling Hosp., 17 AD2d 122, 125, affd 12 NY2d 863.)

The right of a mother to her offspring is so fundamental that it cannot be abridged except by the most exacting compliance with due process. (See Matter of Male Infant L., 61 NY2d 420, 427.) A natural parent’s right to raise her child is based upon the most fundamental principles of protected privacy and due process, and absent a clear and convincing showing that a permanent surrender was intended, interference with that right cannot be permitted. (Santosky v Kramer, 455 US 745, 753.) This court has repeatedly recognized and protected, as a constitutional mandate, this interest of the natural parent in remaining the legal parent of his or her child. (See Matter of Marie B., 62 NY2d 352, 358; Matter of Leon RR, 48 NY2d 117.) Accordingly, I strongly believe that a consent form that does not fully and clearly inform the natural mother of the consequences of her action before signing does not comport with basic requirements of due process and is, therefore, without legal effect.

Contrary to the majority’s holding, since the consent form signed by the natural mother was invalid, it matters not whether her attorney made a judicial admission that the natural mother was not misled. In any event, I would not treat the statement made by the mother’s attorney as a judicial admission. In addition to sound public policy reasons for not treating it as such, the record demonstrates that the attorney’s statement was not intended as a judicial admission. The mother testified that when she signed the consent, she believed that her consent was tentative and that it could be revoked unilaterally by her at any time within a certain period. On the witness stand, she stated, without equivocation, “I knew that when I signed it * * * that the adoption would not be completed until I signed a consent in front of the Surrogate.” Also, she said, “I knew that I had a certain amount of time, even after I signed that paper”, and, further, “I knew that * * * I had 30 days in which to revoke the consent.” Although the natural mother said during cross-examination that her attorney had “explained [the consent form] to me”, she never stated what her attorney had told her, or the extent, if any, of her understanding of the statutory provisions as they affected her right of revocation. From the above testimony, it cannot be said that she was fully informed by her attorney or that she comprehended what she was told.

In my view, the consent form that the natural mother signed neither complied with the requirements of section 115-b of the Domestic Relations Law nor satisfied basic concepts of due process, and, therefore, I would reverse the order of the Appellate Division and dismiss the adoption petition.

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

Order affirmed, without costs, in a memorandum.


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    Pennsylvania Millers Mutual Insurance Company, Appellant, v Peter Manco et al., Defendants, and State Insurance Fund, Respondent.
    Decided October 30, 1984

      APPEARANCES OF COUNSEL

      E. Richard Rimmels, Jr., and Louis J. Castellano, Jr., for appellant.

      Raymond C. Greene and Carl Heitner for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and plaintiff’s motion for summary judgment granted.

The owner’s liability policy under which plaintiff insured Gene’s Bus Service Inc. excluded “bodily injury * * * arising out of the * * * maintenance * * * of (i) any automobile owned or operated by * * * insured.” In light of that exclusion it was error to deny plaintiff summary judgment declaring that it was not obligated to share with the State Insurance Fund, Gene’s Bus Service’s compensation insurer, in the defense and payment of a third-party claim over against Gene’s by Firestone Tire & Rubber, one of the defendants in an action for personal injury brought by an employee of Gene’s injured while changing a tire on one of its buses.

The undisputed facts establish that the employee was engaged in the maintenance of an automobile owned by Gene’s when he was injured, thus bringing the claim over within the policy exclusion. Special Term nevertheless construed the exclusion not to encompass automobile maintenance carried out on business premises for business purposes, relying on Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. (45 NY2d 551, 557-558) and on Sando v Firemen’s Ins. Co. (79 AD2d 774). Sando is, however, clearly distinguishable, for it concerned the exclusion from no-fault coverage of injuries resulting from “conduct within the course of a business of repairing, servicing, or otherwise maintaining motor vehicles” (emphasis supplied). So also is Graphic Arts, for we deal here with a premises liability policy, which expressly excludes all on-premises automobile maintenance, not, as in Graphic Arts, an automobile policy under which the insured would have been liable had a stranger been the injured party, and therefore could be held liable over to a joint tort-feasor even though its employee was concurrently liable. The exclusion from coverage claimed in Graphics Art turned on who the operator was at the time of an otherwise covered activity. The exclusion in plaintiff’s policy turns solely on the nature of the activity, which is excluded entirely by the clear language of the policy. To hold otherwise is to rewrite plaintiff’s policy, which excludes all liability arising out of automobile maintenance on premises and, therefore, excludes liability for the claim alleged in Manco’s personal injury complaint.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and plaintiff’s motion for summary judgment granted in a memorandum.


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    Richard A. Bernstein, Appellant, v Jack K. Cooke et al., Respondents, et al., Defendants.
    Submitted September 17, 1984;
    decided October 30, 1984
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).

Judge Wachtler taking no part.


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    In the Matter of Sean X. Mary J. Brennan, as Director of Services to Children of the Nassau County Department of Social Services, Respondent; Irma Y., Appellant.
    Submitted September 24, 1984;
    decided October 30, 1984
   Motion for leave to appeal, etc., denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Matter of Whelan v Griffin, 63 NY2d 650).


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    In the Matter of the Claim of Jacqueline Leeds, Claimant, v County of Westchester et al., Respondents, and Village of Buchanan et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued October 9, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      Morris Block for appellants.

      Phyllis O’Connell for County of Westchester and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (100 AD2d 646).

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


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    L. Smirlock Realty Corp., Respondent-Appellant, v Title Guarantee Company, Appellant-Respondent.
    Argued October 10, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      Michael Permut, John J. Boyle and Samuel Kirschenbaum for appellant-respondent.

      Jeffrey G. Stark for respondent-appellant.

      Richard Gyory and Herbert B. Ruskin for New York State Land Title Association, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to plaintiff, to delete therefrom the words “the sum of $593,850, with interest from April 14,1972” and to substitute therefor the words “the sum of $593,850, with interest from May 14,1969”, and, as so modified, affirmed.

As to the legal issues presented, we affirm, except as to the date from which interest should run on the sum of $593,850, for the reasons stated in the carefully considered and fully articulated opinion of Justice David T. Gibbons at the Appellate Division. Issues of fact with respect to which the determinations of Supreme Court were affirmed by the Appellate Division are beyond the reach of our review, there being evidence in the record for the support of such determinations. As to the issues of fact with respect to which the Appellate Division differed with Supreme Court, we conclude that the determinations of the Appellate Division more nearly comport with the weight of the evidence.

We do not agree, however, with the conclusion of the Appellate Division that interest on the sum of $593,850 (determined to be the difference in value of the property with access via St. George Place and Jeanette Avenue and its value without such access) should run from April 14, 1972. Defendant’s liability for a defect in the title against which the policy insured accrued, and plaintiff’s cause of action existed, at the time plaintiff acquired the defective title and the policy was issued, May 14, 1969. Its right to interest on the $593,850 accordingly ran from that date (CPLR 5001, subd [b]).

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

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


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    In the Matter of Louise Scalera, as Coexecutor of Dominick Scalera, Deceased, Respondent. S & S Carting Co., Inc., et al., Appellants.
    Argued October 8, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      Robert M. Cólica for appellants.

      John E. Bennett for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order brought up for review should be affirmed, with costs.

In this proceeding to obtain the judicial dissolution of the S & S Carting Co., Inc., a refuse collection company, petitioner, as executrix of the estate of her late husband, has moved for enforcement of a stipulation of settlement of the proceeding. Petitioner’s husband was the owner of one half of the stock of S & S, and the stipulation essentially gives the estate a one-half interest in the company. This interest was to be realized through the sale of some of the refuse collection routes of S & S and by the payment by respondents to petitioner of one half of the book value of the assets of S & S other than the collection routes and appurtenant equipment.

Under paragraph 2 of the stipulation, the estate was allowed to sell three of the five “formal” refuse collection routes of S & S, as well as “rolloff” work which was “subsidiary” to these three formal routes and 50% of the remaining “contract” and “spot” rolloffs, as measured by monthly collections. The estate sold the three formal routes as well as the rolloff work denoted as route seven on the S & S books, which was subsidiary to one of the three formal routes. Collection routes six and eight, which also were comprised of rolloff work, went unsold.

Under paragraph 4 (b) (ii) of the stipulation, the value of the unsold routes and rolloffs would be determined “by assuming all routes and all rolloffs of S & S have the same market value as compared to * * * those sold”. Thus, the parties do not dispute that the value of the two formal routes not sold should be based upon the price paid for the three formal routes which were sold. There is also no dispute that the negotiated price for route seven should be used to establish the value of route six, as both are rolloff routes which are subsidiary to a formal route. There is a question, however, as to whether the sale price of route seven should be used to establish the value of route eight, which is comprised of contract and spot rolloff work.

The respondents contend that because paragraph 2 of the stipulation distinguishes between subsidiary rolloff work and contract and spot rolloff work, the value of route seven cannot be used to determine the value of route eight. Under respondent’s interpretation of the stipulation, because no portion of route eight was sold the route has to be given no value. As noted by the Appellate Division however the purpose behind the distinction in paragraph 2 of the stipulation was to enable the estate to sell the subsidiary rolloffs in the most commercially attractive manner by permitting the sale of an entire subsidiary rolloff route in conjunction with the formal route with which it was connected. Significantly, paragraph 4 (b) (ii), which sets forth the valuation formula, does distinguish between formal routes and rolloff work but, as stated by the Appellate Division, “[mjarkedly absent is any provision for a further breakdown of price according to types of rolloff” (96 AD2d, at p 1059). We agree with the Appellate Division that the import of this absence is that no differentiation was intended among the rolloffs.

The other issue raised on this appeal is whether the payment by respondents to the estate of one half of the remaining net asset value of S & S is to be made in one lump sum or instead in intervals over a five-year period. We agree with the lower courts that the words “shall pay” in paragraph 4 (b) (i) of the stipulation were intended to require a lump-sum payment, particularly when contrasted with the language in the stipulation which states that the payment of the amount by which one half of the value of all the routes exceeded the value of the routes sold was to be made on the same “terms and conditions” as the terms received for the sold routes. Respondents argue that the stipulation should be read as incorporating the payment provision of a 1956 stockholders agreement between petitioner’s testator and respondent Dominick Salzano, citing Lewis v Vladeck, Elias, Vladeck, Zimny & Engelhard (57 NY2d 975). Unlike in Lewis, however, the two agreements here are for different purposes and are not between identical parties and it would be inappropriate to rely on the 1956 agreement to interpret the stipulation.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


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    In the Matter of the Property Clerk of Police Department of City of New York, Respondent, v Maurice Rosea, Appellant.
    Argued October 9, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      Harry Salvan for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Barry P. Schwartz and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (99 AD2d 961).

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


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    In the Matter of Albert J. Stevenson, Respondent, v County of Monroe et al., Appellants.
    Argued October 10, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      John J. Doyle, County Attorney (Nira T. Kermisch of counsel), for appellants.

      Dennis P. Schuler for respondent.
   OPINION OF THE COURT

Memorandum.

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

We read the memorandum at the Appellate Division to be a substitution of its discretion for that of Special Term (cf. Matter of Von Bulow, 63 NY2d 221, 225, n). Under the circumstances of this case it cannot be said that the Appellate Division abused its discretion as a matter of law in granting the motion to file a late notice of claim. With respect to the contention that the case should be held to be moot, on the ground that the time for serving the complaint expired after the motion to file a late notice of claim was made, we would note that the running of the statute was tolled once the motion was made (Giblin v Nassau County Med. Center, 61 NY2d 67).

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

Order affirmed, with costs, in a memorandum.


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    In the Matter of Daniel Cantor, Doing Business as Haven Manor Health Related Facility, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants.
    Argued October 11, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Peter H. Schiff of counsel), for appellants.

      Irwin R. Karassik for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, the petition dismissed and the Commissioner’s determination reinstated.

The Commissioner’s determination that the real property lease was between related parties within the meaning of 10 NYCRR 86.28 (now 10 NYCRR 86-2.26) is supported by substantial evidence. The hearing officer found that Cantor was the original owner of the property, having purchased it in 1969 for $235,000. When he sold it to Simensky in 1971 for $500,000, the sales price was agreed to without any negotiations, and was not related to the fair market value of the property for use as a nursing home. Cantor immediately turned around and entered into a partnership agreement with the purchaser and others, which gave him the option of leasing the facility according to terms fixed in the 1971 agreement. When he exercised that option in 1974, he was the only member of the partnership authorized to operate the facility.

Although, as the Appellate Division noted, there was no showing that the parties were related prior to 1971, there was substantial evidence to support the Commissioner’s determination that the parties were related in 1974 when the petitioner obtained the lease from his partners and that he had “exercised control over the entire sale and leaseback transaction” so that it could not be said to be an arm’s length deal.

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

Judgment reversed, etc.


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    Alida Curcio, Appellant, v Carlo Ippolito, Respondent.
    Argued October 8, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      Barry A. Schwartz for appellant.

      Roger B. Lawrence for respondent.
   OPINION OF THE COURT

Memorandum.

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

In opposition to defendant doctor’s motion for summary judgment on the ground that plaintiff’s malpractice cause of action is time barred, plaintiff presents nothing other than an affidavit of her attorney, which evidences no personal knowledge of the facts on his part. There is, therefore, no factual basis for plaintiff’s claim of estoppel.

With respect to the contention that the statute was tolled under the continuous treatment doctrine, the depositions of plaintiff and defendant doctor, presented as part of defendant’s papers, established that surgery was performed on plaintiff’s nose in 1974, that she was discharged by defendant on January 14, 1976 and that on February 24, 1979, without having seen defendant or any other physician in the meantime with respect to her nose, plaintiff went back to see defendant because her “breathing was belabored and the indentation concave.”

It is not necessary to determine whether the February 24,1979 visit was “for the sole purpose of ascertaining the state of the patient’s condition” within the meaning of CPLR 214-a, or whether its definition of continuous treatment can be applied to claimed malpractice with respect to surgery performed before its effective date. Nor need we hold that in every instance in which a period longer than the applicable Statute of Limitations passes between discharge after surgery and the next visit to the doctor the claim will be barred (cf. Bennin v Ramapo Gen. Hosp., 72 AD2d 736). Although defendant’s February 24, 1979 advice sufficiently establishes that the visit was not a “ploy to revive the time-barred action” (cf. Florio v Cook, 65 AD2d 548, affd 48 NY2d 792), it is enough to bar plaintiff’s claim that no contact between plaintiff and defendant after her discharge and before the February 24, 1979 visit has been shown. Under such circumstances the required continuity has not been established through “a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment” (McDermott v Torre, 56 NY2d 399, 406 [emphasis supplied]), or otherwise (cf. Lomber v Farrow, 91 AD2d 725 [toll by infancy]; see Brush v Olivo, 81 AD2d 852, 853).

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

Order affirmed, with costs, in a memorandum.


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    Tri-City Electric Co., Inc., et al., Plaintiffs, v The People of the State of New York et al., Respondents, and Lake Steel Erection, Inc., Appellant, et al., Defendants.
    Argued October 9, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      Roy R. Cesar for appellant.

      Robert Abrams, Attorney-General (Richard J. Dorsey and Peter H. Schiffoi counsel), for the People of the State of New York, respondent.

      Lawrence E. Becker for Aetna Casualty and Surety Company, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division which modified the judgment in favor of Lake Steel Erection, Inc., by reducing it to $51,000, the amount of the discharge bond, should be affirmed, with costs.

Lake Steel Erection filed a mechanic’s lien in the amount of $47,342.41, which was discharged with the consent of Lake Steel by the filing of an undertaking in the amount of $51,000 under court order made pursuant to subdivision 5 of section 21 of the Lien Law. Upon the filing of such a discharge bond the public improvement lien previously filed attaches to the bond, which is substituted for the liened property (Milliken Bros, v City of New York, 201 NY 65, 74; Morton v Tucker, 145 NY 244, 248). Recovery against the surety on the bond may not exceed the face amount of the bond as originally fixed, unless an amendatory order is thereafter obtained increasing the amount of the bond (CPLR 2508; Lien Law, § 21, subd 5), or the surety defaults on the bond, in which later event the amount recoverable from the surety may include interest from the time of default in addition to the face amount (General Obligations Law, § 7-301; CPLR 2502; Carrols Equities Corp. v Villnave, 57 AD2d 1044,1045; see MendelMesick-Cohen-Architects v Peerless Ins. Co., 74 AD2d 712, 713). Interest in excess of the face amount of the discharge bond is not otherwise recoverable (see McClendon Blacktop Co. v Johnson Bldg. Co., 46 AD2d 724). Here no default has been shown.

Moreover, Lake Steel was not entitled to enforce its claim for interest in excess of that payable under the discharge bond under the trust fund provisions of article 3-A of the Lien Law. Neither the State as owner nor Aetna as surety on the payment and performance bond can be charged under article 3-A for other than “the cost of improvement” (Lien Law, § 71, subd 1; Northern Structures v Union Bank, 57 AD2d 360, 368-369; Gruenberg v United States, 29 AD2d 527).

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

Order, insofar as appealed from, affirmed, with costs, in a memorandum.

       The appeal of Lake Steel Equipment Rental, Inc., and the cross appeal of Suburban Excavators et al. have previously been dismissed for nonfinality (61 NY2d 833).


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    David M. Pero et al., Respondents, v City of Batavia et al., Appellants.
    Argued October 9, 1984;
    decided November 13, 1984

      APPEARANCES OF COUNSEL

      George E. Schaefer, Jr., for appellants.

      Debra L. Burhans for respondents.
   opinion of the court

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (99 AD2d 668).

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