text:
    STATE OF CONNECTICUT v. RUSSELL JOHNSON

      Lisa J. Steele, special public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 299 (AC 20349), is denied.

Joy K. Fausey, deputy assistant state’s attorney, in opposition.

Decided January 28, 2002


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. TARRANCE LAWRENCE

      E. Gregory Cerritelli, in support of the petition.

      Rita M. Shair, senior assistant state’s attorney, in opposition.
    Decided January 28, 2002
   The defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 284 (AC 20446), is denied.


text:
    STATEWIDE GRIEVANCE COMMITTEE v. RIDGELY WHITMORE BROWN

      Ridgely W. Brown, pro se, in support of the petition.

      Maureen A. Morgan, assistant bar counsel, in opposition.
    Decided January 28, 2002
   The defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 183 (AC 20706), is denied.

NORCOTT, J., did not participate in the consideration or decision of this petition.


text:
    JOAN SANDOW ET AL. v. MARY ANN ECKSTEIN ET AL.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 67 Conn. App. 243 (AC 21153), is denied.

Brenden P. Leydon, in support of the petition.

Constance L. Epstein, in opposition.

Decided January 28, 2002

KATZ, J., dissenting. I would grant the plaintiffs’ petition for certification to appeal.


text:
    STATE OF CONNECTICUT v. RUBEN ROMAN
    The Supreme Court docket number is SC 16678.

      Michael A. Georgetti, in support of the petition.

      John A. East III, assistant state’s attorney, in opposition.
    Decided January 28, 2002
   The defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 194 (AC 21586), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court was not required to hold a preliminary inquiry regarding the defendant’s claim of juror misconduct?”


text:
    RITA DONALDSON v. U.S. INSPECT, INC.

      Neil Johnson, in support of the petition.

      John P. Clifford, Jr., and John J. Robacynski, in opposition.
    Decided January 28, 2002
   The defendant’s petition for certification for appeal from the Appellate Court (AC 22145) is denied.


text:
    BASIL E. KEISER v. ZONING COMMISSION OF THE TOWN OF REDDING ET AL.

      Michael N. LaVelle, in support of the petition.

      Nancy Burton, in opposition.
    Decided January 29, 2002
   The petition for certification by the defendants, the zoning commission of the town of Redding and the water pollution control commission of the town of Redding, for appeal from the Appellate Court, 62 Conn. App. 600 (AC 19681), is granted. The case is remanded to the Appellate Court for reconsideration in light of this court’s decision in Nizzardo v. State Traffic Commission, 259 Conn. 131, 788 A.2d 1158 (2002).

In view of our remand without further proceedings in this court, the provisions of Practice Book § 84-9 are waived.

VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.


text:
    KENNETH B. ADOLPHSON v. NORMAN WEINSTEIN, COADMINISTRATOR (ESTATE OF LOUISE R. RIBAK), ET AL.

      Paul A. Sobel, in support of the petition.

      Vincent M. Marino and Anthony P. Copertino, Jr., in opposition.
    Decided February 6, 2002
   The plaintiffs petition for certification for appeal from the Appellate Court, 66 Conn. App. 591 (AC 20862), is denied.


text:
    CONNECTICUT NATIONAL BANK v. GEORGE W. GAGER
    The Supreme Court docket number is SC 16682.

      Andrew Brand, in support of the petition.

      Paul M. Geraghty and Barbara A. Arnold, in opposition.
    Decided February 6, 2002
   The defendant’s petition for certification for appeal from the Appellate Court, 66 Conn. App. 797 (AC 21457), is granted, limited to the following issue:

“Did the Appellate Court properly decline to review the defendant’s claim on the basis of an inadequate record?”

VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.


text:
    KEVIN R. STANLEY v. COMMISSIONER OF CORRECTION

      Richard C. Marquette, special public defender, in support of the petition.

      Mitchell S. Brody, senior assistant state’s attorney, in opposition.
    Decided February 6, 2002
   The petitioner Kevin R. Stanley’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 357 (AC 20530), is denied.


text:
    STATE OF CONNECTICUT v. WILFREDO BENITEZ
   The defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 36 (AC 20721), is denied.

G. Douglas Nash, public defender, in support of the petition.

Eileen F. McCarthy, assistant state’s attorney, in opposition.

Decided February 6, 2002

NORCOTT, KATZ and VERTEFEUILLE, Js., did not participate in the consideration or decision of this petition.


text:
    GERTRUDE T. BERGEN v. MICHAEL BELFONTI

      Eric R. Gaynor, in support of the petition.

      Robert C. Lubus, in opposition.
    Decided February 6, 2002
   The defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 533 (AC 21299), is denied.


text:
    STATE OF CONNECTICUT v. KHARI MILLER

      Suzanne Zitser, assistant public defender, in support of the petition.

      Timothy J. Sugrue, senior assistant state’s attorney, in opposition.
    Decided February 6, 2002
   The defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 544 (AC 21471), is denied.

NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.


text:
    WILTON HYLTON v. COMMISSIONER OF CORRECTION

      Katharine S. Goodbody, special public defender, in support of the petition.

      Anne O. Holley, deputy assistant state’s attorney, in opposition.
    Decided February 6, 2002
   The petitioner Wilton Hylton’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 471 (AC 21508), is denied.


text:
    ANTONIO JOHNSON v. STATE OF CONNECTICUT

    The Supreme Court docket number is SC 16683.

      Mark E. Blakeman, in support of the petition.

      Michael J. McAuliffe, in opposition.
    Decided February 6, 2002

      The appeal was withdrawn March 28, 2002.

   The plaintiffs petition for certification for appeal from the Appellate Court, 67 Conn. App. 330 (AC 21623), is granted, limited to the following issue:

“Did the Appellate Court abuse its discretion in affirming the compensation review board’s reversal of the trial commissioner’s decision that the claimant was entitled to his full salary under General Statutes § 5-142 (a)?”


text:
    COMMISSIONER OF THE DEPARTMENT OF LABOR v. MARY LOU WALL ET AL.
   The petition by the defendant Gary R. Wall for certification for appeal from the Appellate Court (AC 22206) is denied.

Gary R. Wall, pro se, in support of the petition.

Glenn A. Woods, assistant attorney general, in opposition.

Decided February 6, 2002


text:
    KEITH SCOTT v. APRIL SCOTT

      Keith Scott, pro se, in support of the petition.
    Decided February 6, 2002
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 22457) is denied.


text:
    INTERLUDE, INC. v. CATHERINE A. SKURAT, TAX COLLECTOR OF THE CITY OF DANBURY, ET AL.
    The Supreme Court docket number is SC 16690.

      Peter N. Buzaid, assistant corporation counsel, in support of the petition.

      Monte E. Frank, Neil R. Marcus, David L. Grogins and Jonathan S. Bowman, in opposition.
    Decided February 14, 2002
   The defendants’ petition for certification for appeal from the Appellate Court, 67 Conn. App. 505 (AC 17634), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that General Statutes § 12-81b and Danbury Code § 18-20 require a municipality to abate the collection of previously assessed and levied property taxes effective as of the date of acquisition of the property by the nonprofit charitable organization?”


text:
    CLAUDIOUS W. CHANNER v. COMMISSIONER OF CORRECTION

      Alan E. Dillon, special public defender, in support of the petition.

      Eileen F. McCarthy, assistant state’s attorney, in opposition.
    Decided February 14, 2002
   The petitioner Claudious W. Channer’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 158 (AC 19507), is denied.


text:
    STATE OF CONNECTICUT v. JEFFREY WALKER

      Alan E. Dillon, special public defender, in support of the petition.

      John A. East III, assistant state’s attorney, in opposition.
    Decided February 14, 2002
   The defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 120 (AC 19699), is denied.


text:
    PATRICK A. TREGLIA v. ROBERT G. ZANESKY ET AL.

      Ridgely W. Brown, in support of the petition.

      Gerald L. Garlick and Joseph F. Mulvey, in opposition.
    Decided February 14, 2002
   The plaintiffs petition for certification for appeal from the Appellate Court, 67 Conn. App. 447 (AC 19829), is denied.


text:
    MATTHEW SALEMME v. TOWN OF SEYMOUR
    The Supreme Court docket number is SC 16689.

      Steven P. Kulas, in support of the petition.

      John P. Calabrese, in opposition.
    Decided February 14, 2002
   The plaintiffs petition for certification for appeal from the Appellate Court, 67 Conn. App. 464 (AC 21311), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the savings clause of General Statutes § 13a-149 did not apply to the plaintiffs notice?”


text:
    STATE OF CONNECTICUT v. MARTIN CONDE

      Kent Drager, senior assistant public defender, in support of the petition.

      Robert J. Scheinblum, assistant state’s attorney, in opposition.
    Decided February 14, 2002
   The defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 474 (AC 21406), is denied.


text:
    IN RE ALEXANDER C.
   The respondent father’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 417 (AC 21673), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the petitioner, the commissioner of children and families, had established the lack of an ongoing parent-child relationship so as to terminate the respondent’s parental rights?”

The Supreme Court docket number is SC 16687.

William R. Kinloch, in support of the petition.

Jane R. Rosenberg, assistant attorney general, in opposition.

Decided February 14, 2002


text:
    IN RE HALEY B.
    The Supreme Court docket number is SC 16688.

      David E. Marmelstein', in support of the petition.

      Maureen D. Regula, assistant attorney general, in opposition.
    Decided February 14, 2002
   The petition of the maternal grandmother for certification for appeal from the Appellate Court (AC 22274) is granted, limited to the following issue:

“Did the Appellate Court properly (1) dismiss the maternal grandmother’s appeal on the ground of untimeliness, or (2) deny the maternal grandmother’s request for permission to file a late appeal?”


text:
    GILBERT HAYES v. MARK J. DECKER
   The defendant’s petition for certification for appeal from the Appellate Court, 66 Conn. App. 293 (AC 20918), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the plaintiffs expert’s proffered testimony regarding the effect of discontinuation of blood pressure medication should have been admitted into evidence?”

The Supreme Court docket number is SC 16692.

Lorinda S. Coon, in support of the petition.

Decided February 26, 2002


text:
    DARRELL ATKINSON v. COMMISSIONER OF CORRECTION

      Richard C. Marquette, special public defender, in support of the petition.

      Brian Austin, Jr., assistant state’s attorney, in opposition.
    Decided February 26, 2002
   The petitioner Darrell Atkinson’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 902 (AC 20163), is denied.


text:
    BARRY HULTMAN ET AL. v. RICHARD BLUMENTHAL

      Norman A. Pattis, in support of the petition.
    Decided February 26, 2002
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 67 Conn. App. 613 (AC 21369), is denied.


text:
    CONNECTICUT BANK OF COMMERCE v. JULIE D. GIORDANO ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 67 Conn. App. 79 (AC 21671), is denied.

Marjorie R. Gruszkiewicz, in support of the petition.

Roger J. Frechette, in opposition.

Decided February 26, 2002


text:
    RICHARD OPOTZNER ET AL. v. WAYNE BASS ET AL.

      Howard A. Jacobs, William F. Dow III and Alinor C. Sterling, in support of the petition.

      Allan B. Taylor and Paul D. Williams, in opposition.
    Decided March 6, 2002
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 63 Conn. App. 555 (AC 19563), is denied.

NORCOTT, J., did not participate in the consideration or decision of this petition.


text:
    MICHAEL J. YORGENSEN ET AL. v. BROPHY AHERN DEVELOPMENT COMPANY ET AL.

      Patrick L. Kennedy, in support of the petition.
    Decided March 6, 2002
   The defendants’ petition for certification for appeal from the Appellate Court, 66 Conn. App. 833 (AC 21355), is denied.


text:
    CHARLES FERRATO ET AL. v. WEBSTER BANK

      Stephen G. Silverberg, in support of the petition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 67 Conn. App. 588 (AC 20913), is denied.

Linda N. Mayo, in opposition.

Decided March 6, 2002


text:
    DAISY HERNANDEZ v. WILLIAM CIRMO

      Neil Johnson, in support of the petition.

      Albert G. Danker, Jr., in opposition.
    Decided March 6, 2002
   The plaintiffs petition for certification for appeal from the Appellate Court, 67 Conn. App. 565 (AC 21138), is denied.

PALMER, J., did not participate in the consideration or decision of this petition.


text:
    DIANE NIEVES v. WILLIAM CIRMO

      Neil Johnson, in support of the petition.

      Albert G. Danker, Jr., in opposition.
    Decided March 6, 2002
   The plaintiffs petition for certification for appeal from the Appellate Court, 67 Conn. App. 576 (AC 21139), is denied.

PALMER, J., did not participate in the consideration or decision of this petition.


text:
    DOROTHY S. MITCHELL v. MORRIS SILVERSTEIN ET AL.
   The named defendant’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 58 (AC 21180), is denied.

Morris Silverstein, pro se, in support of the petition.

David C. Rappe, pro se, in opposition.

Decided March 6, 2002

ZARELLA, J., did not participate in the consideration or decision of this petition.


text:
    RICHARD A. LAPOINTE v. COMMISSIONER OF CORRECTION

      W. James Cousins and Paul Casteleiro, pro hac vice, in support of the petition.

      Timothy J. Sugrue, senior assistant state’s attorney, in opposition.
    Decided March 6, 2002
   The petitioner Richard A. Lapointe’s petition for certification for appeal from the Appellate Court, 67 Conn. App. 674 (AC 21249), is denied.


text:
    FLOYD WILLIAMS v. COMMISSIONER OF CORRECTION

      Damon A. R. Kirschbaum, special public defender, in support of the petition.

      Linda N. Howe, assistant state’s attorney, in opposition.
    Decided March 6, 2002
   The petitioner Floyd Williams’ petition for certification for appeal from the Appellate Court, 67 Conn. App. 909 (AC 21334), is denied.

NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.


text:
    STANLEY DABROWSKI v. STARCO OF NEW BRITAIN, INC.

      Neil Johnson, in support of the petition.
    Decided March 6, 2002
   The plaintiffs petition for certification for appeal from the Appellate Court, 67 Conn. App. 907 (AC 21625), is denied.


text:
    STATE OF CONNECTICUT v. RONALD VUMBACK, JR.
    The Supreme Court docket number is SC 16696.

      Hugh F. Keefe and Timothy P. Pothin, in support of the petition.

      Timothy J. Sugrue, senior assistant state’s attorney, in opposition.
    Decided March 6, 2002
   The defendant’s petition for certification for appeal from the Appellate Court, 68 Conn. App. 313 (AC 21133), is granted, limited to the following issue:

“On the facts of this case, did the Appellate Court improperly affirm the trial court’s denial of the defendant’s motion for a bill of particulars?”


text:
    ANNE MARIE MURILLO ET AL. v. GRIFFIN HOSPITAL

      Ian A. Cole, in support of the petition.

      Daniel S. Ratner, in opposition.
    Decided March 6, 2002
   The plaintiffs’ petition for certification for appeal from the Appellate Court (AC 22446) is denied.


text:
    THOMAS J. SHEVLIN v. PETER W. SHAFRAN

      Eddi Z. Zyko, in support of the petition.

      Peter G. Kruzynski, in opposition.
    Decided March 6, 2002
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 22548) is denied.

VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.


author: Gabrielli, J.

text:
    In the Matter of Cromwell Towers Redevelopment Co., Appellant, v City of Yonkers et al., Respondents.
    Argued October 19, 1976;
    decided December 2, 1976

      Phil E. Gilbert, Jr., Elihu Inselbuch and Howard Ives, New York City, for appellant.

      Eugene J. Fox, Corporation Counsel (William N. Carroll of counsel), Yonkers, for City of Yonkers, respondent.
   Gabrielli, J.

In this article 78 proceeding the Cromwell Towers Redevelopment Company, a limited partnership organized pursuant to article 5 of the Private Housing Finance Law, seeks reimbursement for and relief from taxes assessed in alleged violation of a contract executed pursuant to a resolution of the Yonkers City Council. Special Term and the Appellate Division held the action to be untimely and dismissed the petition. We reverse.

In 1971 the Redevelopment Company was formed for the purpose of constructing low and moderate income housing developments in the City of Yonkers with federally aided mortgage financing. In order to obtain this funding, the Redevelopment Company was required by the Federal Housing Administration to obtain tax abatement from the city for the term of the mortgage. Section 125 of the Private Housing Finance Law provides that a local legislative body may "by contract agree with any redevelopment company to exempt from local and municipal taxes” all or part of the value of property which represents an increase over its valuation at the time of its acquisition. The Redevelopment Company applied to the Mayor and City Council of Yonkers for a tax exemption; and on July 6, 1971 the city council adopted Resolution No. 323-1971 which provided, in pertinent part: "1. That upon completion of the construction of the project * * * and pursuant to the provisions of Section 236 of the National Housing Act and Regulations thereunder * * * the aforesaid premises in the redevelopment project to be constructed * * * be exempt from local and municipal taxes other than assessments for local improvements to the extent 100% of the value of the property included in such project (except as aforesaid [the portion allocated for commercial use]) which represents an increase over the assessed valuation of the aforesaid real property, both land and improvements, acquired for the aforesaid project at the time of its acquisition by the Redevelopment Company, pursuant to Section 125 of Article V of the Private Housing Finance Law of the State of New York as amended, and pursuant to the terms and conditions of this resolution; such tax exemption to operate for so long as the Redevelopment Company’s federally aided mortgage’ (as said term is defined in Section 102 of Article V of the Private Housing Finance Law of the State of New York, as amended), on said project is outstanding, but in no event for a period of more than 40 years from the date on which the benefits of such exemption first became available and effective.” (Emphasis added.)

On August 25, 1971 the city and the Redevelopment Company entered into a contract which provided that:

"1. The City of Yonkers hereby grants to the Housing Company [the Redevelopment Company] an exemption from all local and municipal taxes, other than assessments for local improvements, to the extent of one hundred (100%) per cent of the value of the Real Estate (land and improvements thereon) included in such Housing Project which represents an increase over $79,300 (the assessed valuation of the Real Estate, both land and improvements, acquired for such Housing Project at the time of its acquisition by the Housing Company) * * *

"2. Such tax exemption shall operate for so long as the Housing Company’s federally aided mortgage’{as said term is defined in Section 102 of Article V of the Private Housing Finance Law of the State of New York, as amended) on the Housing Project is outstanding, but in no event for a period of more than forty (40) years from the date on which the benefits of this tax exemption first become available and effective.” (Emphasis added.)

For tax purposes the city acts not only on its own behalf but also on behalf of the county and, thus, the resolution and contract affect county as well as city taxes.

Armed with the necessary tax exemption spelled out in the contract, the Redevelopment Company pursued .the anticipated mortgage and on November 29, 1971, it entered into a commitment contract for $12,275,000 with the Government National Mortgage Association, guaranteed by the Federal National Mortgage Association. On December 20, 1971 the Redevelopment Company issued a mortgage note and construction began.

Despite the resolution and the contract granting tax exemption, the partially completed project was assessed at $904,300 for the fiscal year July 1, 1973 to June 30, 1974, an increase of $825,000 over the assessed value prior to construction. A tax of $64,915.31 was levied and paid under protest. Subsequently the property was assessed at $2,765,700 for the fiscal year 1974-1975 and a tax of $199,720.68 computed, which tax has not been paid. County taxes were also assessed on the basis of these valuations. The Redevelopment Company petitioned city council, pursuant to section C8-5 of the City Charter, which authorized the council to "correct, cancel or remit” any tax erroneously assessed. The Redevelopment Company asserted that these taxes were invalid as violative of their contract. The council failed to act on the petition and this proceeding was brought seeking (1) review of the actions of the City of Yonkers in imposing these real property taxes, (2) an injunction restraining respondents from attempting to collect such taxes, (3) a declaration that the Redevelopment Company is partially exempt from these taxes, (4) an order compelling respondents to recompute the taxes in accord with the contract, and (5) return of the excess taxes paid under protest.

This action was challenged as time-barred under CPLR 217 because it was not commenced within four months after city council confirmed and assessed the taxes. Additionally the respondents contend that petitioner is guilty of laches and is not entitled to relief. We find neither of these arguments dispositive of the action before us and, therefore, need not consider them.

When a tax assessment is attacked as a violation of a city resolution and a valid contract, it may be challenged in a plenary action for moneys had and received (Matter of First Nat. City Bank v City of New York Finance Admin., 36 NY2d 87; New York R. T. Corp. v City of New York, 275 NY 258, affd 303 US 573). This action is based, in theory, upon an implied contract obligation and would be available in the present case. But we need not approach this case on the theoretical moneys had and received basis alone, for an actual and explicit contract was entered into between the parties. Thus the basis of this action is the contract between the City of Yonkers and the Redevelopment Company.

As we have recently noted in Matter of First Nat. City Bank v City of New York Finance Admin, (supra, p 94): "Under CPLR 103 (subd. [c]), the courts are empowered and indeed directed to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal, making whatever order is necessary for its proper prosecution.” This case presents a perfect example of the situation where the petitioner had a binding and valid contract with the city and mistakenly sought to enforce that contract via an article 78 proceeding. Because a proper form of action is available, we convert this proceeding to an action on the contract. The Statute of Limitations for an action arising from a contractual obligation is six years (CPLR 213) and this action was brought well within that period since the contract, having been entered into on August 25, 1971, was first breached on May 31, 1973 when city council approved the tax assessment. In converting this article 78 proceeding to an action based on contract, we find this action timely commenced.

The remaining question is whether under the city resolution and the contract, the Redevelopment Company is entitled to a tax exemption from the time they obtained the federally guaranteed mortgage or whether the exemption accrued only after completion of the project. The respondents rely solely on the language of the resolution which provides that "upon completion of the construction of the project * * * and pursuant to the provisions of Section 236 of the National Housing Act and Regulations thereunder * * * the aforesaid premises * * * be exempt from local and municipal taxes”. The contract reiterates most of the language of the resolution but specifically omits the introductory phrase "upon completion of the construction of the project.” To read this language to mean that the respondents may collect taxes on the increased value of the property while under construction is to ignore the direction of both the resolution and the contract that the tax exemption shall operate for "so long as the Redevelopment Company’s 'federally aided mortgage’ (as said term is defined in Section 102 of Article V of the Private Housing Finance Law of the State of New York, as amended), on said project is outstanding”. As fully recognized by the city, a precondition to obtaining the federally guaranteed mortgage was the acquisition of a tax exemption covering any increase in value resulting from the use of that money.

It is the policy of the Federal Government and the State of New York to encourage local and municipal governments to waive or limit their real estate taxes on redevelopment projects for the purpose of stimulating the growth and development of such projects. New York has recognized the need of upgrading available living accommodations for low and moderate income families (Private Housing Finance Law, § 101) and has adopted a procedure for authorizing tax exemptions in order to further the goal of filling this great need (Private Housing Finance Law, § 125). Likewise, the Federal Government has recognized that the success of these needed housing projects is dependent to a certain extent on the taxing policies of the local communities (1968 US Code Cong & Admin News, Housing and Urban Development Act of 1968, House Report No. 1585, pp 2897-2898). Thus, where otherwise adequate financing is unavailable and, as in this case, federally guaranteed mortgages are available where local tax relief has been granted, the goal of needed housing facilities may be met. The granting of local tax exemptions is part of the overall State and Federal policy to encourage redevelopment projects and it was pursuant to these policies that the agreement was made between the municipal authorities and petitioner.

In construing the contract between the Redevelopment Company and the city, due consideration must be given to the purpose of the parties in making the contract (4 Williston, Contracts [3d ed], § 619, pp 730-733). A fair and reasonable interpretation, consistent with that purpose, must guide the courts in enforcing the agreement (see Farrell Lines v City of New York, 30 NY2d 76; Aron v Gillman, 309 NY 157). It was the undisputable purpose of this contract to provide the tax exemption necessary for securing the federally aided mortgage. The exemption was to run for as long as the mortgage was outstanding and thus the exemption attached at the same time the mortgage came into being, which occurred before construction began. The Redevelopment Company was entitled under the contract to a tax exemption for any increase over $79,300 of the assessed value prior to construction, which resulted from the federally guaranteed mortgage and was consistent with the other clauses of the contract not pertinent to our discussion here.

We conclude that the Redevelopment Company should be awarded damages to the extent of the excess taxes paid under protest to the city and county in violation of their contract with the city; that it is not liable for taxes assessed but not paid under the terms of the contract; and that the respondents should recompute the taxes due for the fiscal years 1973-1974 and 1974-1975 consistent with this opinion.

Accordingly, the order of the Appellate Division should be reversed, the judgment entered against Cromwell Towers Redevelopment Company vacated and the case remitted to the Supreme Court, Westchester County, for entry of judgment in accordance with this opinion.

Chief Judge Breitel and Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, with costs, the judgment entered against Cromwell Towers Redevelopment Company vacated and the case remitted to Supreme Court, Westchester County, for entry of judgment in accordance with the opinion herein.


author: Cooke, J.

text:
    Lighthouse Shores, Inc., et al., Respondents, v Town of Islip et al., Appellants.
    Argued September 17, 1976;
    decided December 2, 1976

      Francis G. Caldeira, Town Attorney (William J. Kent of counsel), Islip, for appellants.

      Robert M. Calica, Mineola, for respondents.

      Donald J. Cohn and John E. Runnells, New York City, for Fire Island Association, amicus curiae.

   Cooke, J.

Fire Island is an elongated sandspit in Suffolk County. Lying between the Great South Bay and Atlantic Ocean, just off the south central shore of Long Island, its overall length is about 31 Vi miles and its width varies from 200 yards to half a mile. Marked by its almost uninterrupted stretch of sand beach backed up by low dunes, it is a natural barrier reef of very low elevation, one portion, the "sunken forest” being below sea level. Although a popular summer resort, it is windswept and frequently battered by autumn hurricanes. Interestingly, it acquired its name from fires built there as signals to vessels during the War of 1812.

Towards its western end, Fire Island is connected with the mainland of Long Island by the Robert Moses Causeway. As one proceeds from the southerly terminus of the causeway on Fire Island, he or she first proceeds on an inland route, easterly on a paved road through the Fire Island State Park, then continues on a paved roadway through an area under control of the United States Government, then through more State park lands still on a paved road and then travels on a sandy unpaved road about 435 feet to the westerly line of a section known as Lighthouse Shores. At this junction, the inland route connects with the westerly terminus of a walk known as Cedar Court. Lighthouse Shores lies in an unincorporated area of Fire Island known as Kismet, a part of the Town of Islip.

Plaintiff Lighthouse Shores, Inc., is a property owner and the individual plaintiffs are residents and property owners in Kismet. In this action, besides certain injunctive relief, plaintiffs seek a declaration that an ordinance of the Town of Islip, as amended, regulating the use of vehicles on that part of Fire Island within said town, exclusive of lands within an incorporated village and of lands within the Fire Island National Seashore, is void. Special Term found that the walks in the Lighthouse Shores section were private and owned by plaintiff corporation "except for two lots”, that so much of the ordinance as purports to regulate traffic over State-owned and maintained roads between the causeway and the westerly line of Lighthouse Shores is beyond the powers of the town, that the amendment of the ordinance requiring that applicants be year-round residents with no other residence was invalidly adopted, that this amendment is also invalid because it makes an invidious discrimination and that the general welfare of the community is not promoted by the barring of owners of homes in Lighthouse Shores from the walks therein and from the route extending from the causeway to the westerly line of Lighthouse Shores. The Appellate Division affirmed, without opinion.

Section 1604 of the Vehicle and Traffic Law, entitled "Local ordinances prohibited”, provides in pertinent part: "local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner of a motor vehicle or motorcycle, or from any operator or chauffeur to whom this chapter is applicable, any tax, fee, license or permit for the use of the public highways, or excluding any such owner, operator or chauffeur from the free use of such public highways * * * or in any other way restricting motor vehicles or motorcycles * * * or use of the public highways * * * and no ordinance, rule or regulation contrary to or in any wise inconsistent with the provisions of this chapter, now in force or hereafter enacted shall have any effect.” In turn, section 118 of the Vehicle and Traffic Law defines a highway as "[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” A public highway, under said law, includes any highway (§ 134). The proof at Special Term presented a question of fact as to whether the inland route stretching from the southerly terminus of the causeway to the westerly bounds of Lighthouse Shores was a public highway (see People v County of Westchester, 282 NY 224, 231). Special Term, upon adequate proof, found that it was and the Appellate Division has affirmed that finding. Section 61-1 of the ordinance specifically excludes from its ambit "lands contained within the Fire Island National Seashore” and, therefore, that portion of the inland route insofar as it traverses the National Seashore is unaffected by the ordinance. Consequently, Special Term’s determination as to said inland route should not be disturbed.

Subdivision A of section 61-2 of the ordinance provides that, except for official vehicles and school buses in specific instances, "[n]o motor vehicle shall be operated on or across Fire Island except under permit issued by the Board of Commissioners.” Subdivision H of this section, an amendment added February 13, 1973, provides that "[a]ll applicants for permits must submit a sworn affidavit that their twelve month sole residency is on Fire Island.” The contention that this amendment was invalidly adopted because no notice of hearing thereof was given is untenable. So far as relevant, section 130 of the Town Law provides: "The town clerk shall give notice of such [public] hearing by the publication of a notice in at least one newspaper circulating in the town, specifying the time when and the place where such hearing will be held, and in general terms describing the proposed ordinance. Such notice shall be published once at least ten days prior to the day specified for such hearing.” (Emphasis added.) The rather lengthy notice published on December 20, 1972 for the hearing of January 2, 1973 complied with said section. The notice indicated that the purpose of the public hearing was to consider amending the ordinance entitled "Vehicular Uses: Fire Island” and listed proposed amendments. Among the proposals set forth were those that, except for official vehicles and school buses, no motor vehicle shall be operated on Fire Island except under permit issued by the board of commissioners, that the board shall have the power to set a limit on the total permits issued, that travel by motor vehicles would be limited to specific hours on certain days and periods of the year and, significantly, after circumscribing permitted uses by public utilities and those engaged in refuse collection, one to provide that "[t]ravel on Fire Island by all other motor vehicles is prohibited.” The amendment of the ordinance, as adopted, was embraced within the notice.

Special Term determined that the ordinance, as amended, in barring owners of homes in Lighthouse Shores from access to the walks of Lighthouse Shores from the inland route does not promote the general welfare of the community. It found that use of these private walks was a reasonable one, that the prohibition was unreasonable, that the walks were maintained in good condition, that there was no evidence and that the court could not find that properly maintained walks cause or contribute to erosion or are ecologically detrimental or that their use is in derogation of the common good. It was also determined that the ordinance, as it purports to require owners of property at Lighthouse Shores to be year-round residents with no other residence in order to qualify for permits to operate their motor vehicles over the private walks of Lighthouse Shores, is invalid in that it makes an invidious distinction between owners who are year-round residents and those who are not.

Under subdivision 15 of section 130 of the Town Law, the town board of a town is empowered to enact, amend and repeal ordinances for the following purpose: "Promotion of public welfare. Promoting the health, safety, morals or general welfare of the community, including the protection and preservation of the property of the town and of its inhabitants, and of peace and good order, the benefit of trade and all other matter related thereto, insofar as the same shall not be inconsistent with existing law.”

The exceedingly strong presumption of constitutionality applies not only to enactments of the Legislature but to ordinances of municipalities as well. While this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt and only as a last resort should courts strike down legislation on the ground of unconstitutionality. The ordinance may not be arbitrary. It must be reasonably related to some manifest evil which, however, need only be reasonably apprehended. It is also presumed that the legislative body has investigated and found the existence of a situation showing or indicating the need for or desirability of the ordinance, and, if any state of facts known or to be assumed, justifies the disputed measure, this court’s power of inquiry ends. Thus, as to reasonableness, plaintiffs in order to succeed have the burden of showing that "no reasonable basis at all” existed for the challenged portions of the ordinance. (See Matter of Van Berkel v Power, 16 NY2d 37, 40; I. L. F. Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263, 269; Wiggins v Town of Somers, 4 NY2d 215, 218-219; Defiance Milk Prods. Co. v Du Mond, 309 NY 537, 541.)

The purposes of the permit regulations, as found by the town board and as set forth in the ordinance, are "to protect Fire Island and interests therein, to protect the health, welfare, safety and convenience of members of the public using Fire Island.” (§ 61-2, subd B.) This is consistent with the passage of the Fire Island National Seashore Act in 1964, where Congress recognized the special natural resources of Fire Island and acted to preserve for future generations the relatively unspoiled and undeveloped beaches, dunes and other resources of the island (US Code, tit 16, § 459e; People v Goodman, 31 NY2d 262, 266). From the outset the position of the formerly existing Fire Island National Seashore Advisory Commission (see US Code, tit 16, § 459e-8) was that the use of motor vehicles on Fire Island should be held to an absolute minimum, consistent with public welfare.

The island is a fragile strip of sand barrier only a half-mile wide at its widest. It is subjected to and protects the mainland from savage attacks from the ocean and by the elements. There is proof that after the completion of the Robert Moses Causeway, motor vehicle use on the island increased astronomically and that vehicles "were all over the place.” The public drove them not only on the inland route but on the beaches as well. There was also evidence from a professor of geology of the State University of New York, a specialist in geomorphology and a director of the Sea Grant Program of the State University which conducts a study known as the Coastal Erosion Stabilization and Utilization of the South Shore of Long Island. His testimony substantiated that the ecology of the Kismet area of Fire Island is greatly disturbed by vehicular traffic, causing deterioration of the ecological balance on the island and resulting in irreparable harm. The passage of motor vehicles destroys the vegetative mat by destroying the root system of the plant and, when this occurs, sand and soil particles necessary for vegetation are blown away. These particles are entrained when wind velocity reaches nine miles per hour, a common occurrence during winter and early spring. Where there has been vehicular traffic at right angles to the inland route breaches have been made in the dunes so that, during high water, sand and other materials have been carried inland from Fire Island. The concrete part of the walks in Kismet were described as seven feet wide, thus hardly wide enough for one moving vehicle. Surely vehicles from time to time leave this narrow strip and, when pedestrians are confronted, movement to the surrounding sand is required on the part of either the vehicles or the pedestrians, setting the eroding process in motion. Giving to the amended ordinance the presumptions to which it is entitled, unconstitutionality has not been demonstrated beyond a reasonable doubt and plaintiffs have not fulfilled their burden of establishing a total absence of any reasonable basis for it.

The equal protection clauses permit the exercise by the State of a wide scope of discretion in enacting laws which affect some groups differently than others, and a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it (McGowan v Maryland, 366 US 420, 425-426). The classification here intends no arbitrary selection but simply seeks to subserve the general interests of the public, under a reasonably conceived plan, in an effort to preserve Fire Island and protect Long Island. In curtailing the operation of vehicles on Fire Island and in restricting permits to those residing solely there year round, the Town of Islip was confining the grant of limited permits to those who had the greater need for vehicular transportation, certainly a reasonable basis for differentiation.

The order of the Appellate Division should be modified, without costs, and the matter remitted to Special Term for entry of judgment in accordance with this opinion.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order modified, without costs, and case remitted to Supreme Court, Suffolk County, for entry of judgment in accordance with the opinion herein and, as so modified, affirmed.


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    A. M. Knitwear Corp., Appellant, v All America Export-Import Corp., Respondent. (And a Third-Party Action.)
    Argued October 14, 1976;
    decided December 2, 1976

      Gershwin Kurlander and Henry E. Green, New York City, for appellant.

      James M. Hughes, New York City, for respondent.
   Cooke, J.

The issue in this action is whether a seller of goods performed in accordance with its agreement, by loading the goods into a container supplied by the buyer and by notifying the buyer of such loading, so as to shift thereby the risk of loss of the goods to the buyer. We answer this question in the negative and thereby affirm the holding of the Appellate Division.

In June of 1973, the buyer, All America Export-Import Corp., placed an order with the seller, A. M. Knitwear Corp., for several thousand pounds of yarn. The buyer used its own purchase order form, dated June 4, 1973, and typed thereon a description of the goods, a statement that partial shipments would be accepted, a description of how to mark the cartons, the quantity in pounds, and the dollar amount of the order. In addition, at the place on the buyer’s form where the words "Ship Via” are printed, the buyer typed the instructions: "Pick Up from your Plant to Moore-McCormak Pier [sic] for shipment to Santos, Brazil.” Further, in the price column on the form, the buyer typed: "FOB PLANT PER LB. $1.35” (underlining in original). However, left blank by the buyer was the place on the form where the letters F.O.B. are printed and space is provided for the entry of F.O.B terms.

In support of its contention that it had fully performed when the goods were loaded in the container, the seller quotes from an examination before trial of the buyer’s vice-president, who stated:

"Q. What about the second order?

"A. After the first order was completed, Mr. Lubliner said he has more on hand.

"I said 'What do you mean by hand? Do you have again at the pier?’

"He says 'No. I have the same type of merchandise in my warehouse.’ He says T could make you a similar offer, the same amount of cartons, 352 cartons. I do not know the weight. The weight may vary, at the same price.’

"I said, 'Okay,’ We bought it. I accepted it.

"He asked me, what should I do.

"I said, 'As you know, most of the goods being shipped to South America is being containerized. I have to order a container or a trailer, whatever is the simplest expression. And then in turn you will have to put it into the container.’

"Mr. Lubliner, said, 'This is no problem. Just send down the container. I will try to help you.’ ”

In preparation for shipping the goods to South America, the buyer phoned International Shipper’s Co. of New York, a customs house broker and freight forwarder, and a third-party defendant in this action, to arrange for a local truckman to pick up and deliver the goods to the pier. International Shippers engaged a local truckman, Ability Carriers, Inc., another third-party defendant in this action, which as part of its services picked up an empty container from the MooreMcCormack Lines.

On Friday, June 22, 1973, the local truckman deposited the empty container adjacent to premises located at 57 Thames Street, Brooklyn, New York. There is some dispute between the parties involving, in part, whether these were the seller’s premises since Bogart Knitwear, Inc. (apparently related to the seller corporation), another third-party defendant, occupies these premises, but it need not.be discussed, since it is not material to our analysis. It is sufficient to say that the container was delivered to the seller for loading.

On Monday, June 25, 1973, the seller had the goods loaded in the container and, on the same day, notified the buyer that the loading had been completed. The buyer then advised its freight forwarder to have the local truckman pick up the loaded container and deliver it to the Moore-McCormack pier. At around 8:00 p.m. that evening, prior to the arrival of the local truckman engaged by the buyer’s freight forwarder, an individual driving a tractor arrived at the Thames Street premises where the container was located and hooked up the trailer containing the • loaded container to his tractor. The tractor driven by this individual had no descriptive markings thereon or anything to identify its owner. Before leaving the premises, the driver signed a bill of lading, but the signature was indecipherable. It appears that this individual was a thief and had stolen the goods.

Sometime after June 25, the buyer delivered to the seller a check dated July 2, 1973 in the sum of $24,119.10 in payment for the goods loaded in the container. Payment on the check was thereafter stopped by the buyer, apparently when it was learned that the goods had not been received, and the seller brought an action against the buyer to recover payment for the goods.

At Special Term, both the seller and the buyer moved for summary judgment. That court found that the seller’s undertaking was to load the goods in a deliverable condition into the carrier’s container and that, by doing so and notifying the buyer, delivery was made in conformity with the agreement of the parties. Special Term thus determined that the risk of loss of the goods had passed to the buyer and granted the seller’s motion for summary judgment.

The Appellate Division reversed Special Term and granted the buyer’s motion for summary judgment, on the basis that there was neither physical delivery to the carrier nor delivery within the meaning of the Uniform Commercial Code. Both courts relied on subdivision (2) of section 2-401 and section 2-509, but the Appellate Division also relied on the holding in Avisun Corp. v Mercer Motor Frgt. (37 AD2d 517). We affirm the order of the Appellate Division which granted the buyer’s motion for summary judgment.

Although the seller contends that the F.O.B. term on the buyer’s form did not have its ordinary meaning, the Uniform Commercial Code provides that, unless otherwise agreed, the term F.O.B. at a named place "even though used only in connection with the stated price, is a delivery term” (Uniform Commercial Code, § 2-319, subd [1]). Where the term F.O.B. the place of shipment is used, as in this case with the term F.O.B. plant, the code provides that the seller must ship the goods in the manner provided in section 2-504 of the Uniform Commercial Code and "bear the expense and risk of putting them into the possession of the carrier” (Uniform Commercial Code, § 2-319, subd [1], par [a]).

With respect to shipment by the seller, the code provides that where the seller is "required or authorized” to send the goods, but not required to deliver them to a particular destination, then "unless otherwise agreed” the seller must "put the goods into the possession of * * * a carrier” (Uniform Commercial Code, § 2-504, subd [a]). Further, with respect to the risk of loss, the code provides that where the contract requires or authorizes the seller to ship the goods by carrier "if it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier” (Uniform Commercial Code, § 2-509, subd [1], par [a]; emphasis added). The risk of loss provision is, however, "subject to contrary agreement of the parties” (Uniform Commercial Code, § 2-509, subd [4]). Although the seller contends that section 2-509 is not applicable because the agreement between the parties does not "require” the seller to "ship the goods by carrier”, it should be noted that the section applies where the seller is "required or authorized” to ship the goods by carrier and is thus applicable here.

The effect of the provisions of the Uniform Commercial Code may be varied by agreement, with exceptions not applicable here (Uniform Commercial Code, § 1-102, subd [3]). Furthermore, the provisions relevant to this action provide that the requirements set forth therein apply "unless otherwise agreed” or "subject to contrary agreement of the parties”, though the absence of these words in the specific provisions was not intended to imply that the effect of such provisions may not be varied by agreement (Uniform Commercial Code, .§ 1-102, subd [4]). In this respect, the Official Comment to one provision states that "[cjontrary agreement can also be found in the circumstances of the case, a trade usage or practice, or a course of dealing or performance” (Official Comment 5, McKinney’s Cons Laws of NY, Book 62½, Uniform Commercial Code, § 2-509; see, also, Uniform Commercial Code, § 1-205 ["Course of Dealing and Usage of Trade”]).

Despite the provisions of the code which place the risk of loss on the seller in the F.O.B. place of shipment contract until the goods are delivered to the carrier, here the seller contends that the parties "otherwise agreed” so that pursuant to its agreement, the risk of loss passed from the seller to the buyer at the time and place at which the seller completed physical delivery of the subject goods into the container supplied by the buyer for that purpose. In support of this contention, the seller alleges that the language of the purchase order "Pick Up from your Plant” is a specific delivery instruction and that the language "FOB PLANT PER LB. $1.35”, which appears in the price column, is a price term and not a delivery term. Further support for the seller’s contention is taken from the fact that the space provided in the buyer’s own purchase order form for an F.O.B. delivery instruction was left blank by the buyer. Thus, the seller contends its agreement with the buyer imposed no obligation on it to make delivery of the loaded container to the carrier.

As often happens in commercial transactions, the parties to this action did not prepare an extensive written agreement, but merely made an arrangement that, under normal circumstances, would have been entirely satisfactory. The intervention of a wrongdoer who stole the goods that were the subject of the agreement forces the court to determine who should bear the loss resulting from the theft. In this respect, although the seller argues that only to the extent that the agreement is silent should the code apply, it should be noted that the underlying purpose and policy of the code is "to simplify, clarify and modernize the law governing commercial transactions” (Uniform Commercial Code, § 1-102, subd [2], par [a]). To this end, the code provides a framework for analyzing a variety of commercial transactions.

The seller’s contention, that the parties intended the F.O.B. term as a price term and not a delivery term, conflicts with the code provision that states that the F.O.B. term is a delivery term "even though used only in connection with the stated price” (Uniform Commercial Code, § 2-319, subd [1]; emphasis added). That the F.O.B. term was not inserted in the space provided for such an expression in the buyer’s own purchase order form does not require a determination that the F.O.B. term was intended as a price term, since the drafters of the code recognized that the term F.O.B will often be used in connection with the stated price. Thus, the place where the term F.O.B. was typed on the buyer’s form is not sufficient to suggest that the parties intended a price term, particularly when one considers that the relevant code provision was specifically intended to negate the decisions which treated this term as "merely a price term”- (Official Comment 1, McKinney’s Cons Laws of NY, Book 62½, Uniform Commercial Code, § 2-319).

Since the term "FOB PLANT” was a delivery term, the risk of loss was on the seller until the goods were put into the possession of the carrier—unless the parties "otherwise agreed” or there was a "contrary agreement” with respect to the risk of loss. In this respect, the holding in Avisun v Mercer Motor Frgt. (37 AD2d 517, supra), cited by the Appellate Division, is illustrative. There, the question was whether the defendant carrier was liable as bailee for goods that were loaded in its trailer but were stolen before it arrived to pick them up. The Appellate Division there determined that until the acceptance of the goods by the defendant carrier, there was no bailment and that making available a vehicle for (p 518) "possible temporary storeage” was not an "acceptance”. The seller contends that the Avisun case has no relevance to this case because it involves the issue as to when a bailment arises as a matter of law. The seller’s interpretation is, however, too limited. The Avisun case is relevant here because, in the same sense that loading the trailer was not an "acceptance” of a bailment by the carrier, the loading of the container by the seller is not "delivery” to the carrier for purposes of the code, unless the parties so agree.

With respect to the agreement of the parties, the seller contends that the statements in the affidavits of the parties and a portion of an examination before trial of the buyer’s vice-president manifest that the parties intended that the seller’s performance would be complete when the goods were loaded into the container and the buyer was notified thereof. That this was the agreement of the parties is, according to the seller, further suggested by the fact the buyer issued a check, the payment of which was subsequently stopped, in payment for the goods.

The issuance of the check by the buyer gives little support to the seller’s view. The making of payment is as consistent with the buyer’s expectation that delivery had been made to the proper carrier as it is with the seller’s contention that payment was made because the buyer considered the seller’s performance to be completed upon loading the container.

With respect to the seller’s contention as to the meaning of the statements of the buyer’s vice-president, the seller has a formidable task in trying to prove that the parties did not intend the ordinary meaning of the term "FOB PLANT”, i.e., delivery to the carrier. Although the only written expression in the transaction was the buyer’s purchase order form on which the buyer typed the F.O.B. term, if the seller did not agree to this term, the seller should have expressed its disagreement after it received the purchase order form. For example, the seller should have indicated that the term "FOB PLANT” was merely a price term and not a delivery term (see, e.g., 5 McKinney’s Forms, Uniform Commercial Code, § 2-319, Form 1) or that the risk of loss was on the buyer after loading (cf. 5 McKinney’s Forms, Uniform Commercial Code, § 2-319, Form 2). The code anticipates that a written confirmation by a party may state terms additional to, or even different from, those offered and agreed upon, which terms, depending on certain factors, may become part of the contract (see Uniform Commercial Code, § 2-207). Yet here the seller did not seek to modify the F.O.B. term typed on the buyer’s purchase order, but apparently relied on its own understanding of the agreement.

The provisions of the code with respect to risk of loss are subject to the "contrary agreement” of the parties (Uniform Commercial Code, § 2-509, subd [4]). In this respect, the Official Comment states that " '[cjontrary’ is in no way used as a word of limitation and the buyer and seller are left free to readjust their rights and risks * * * in any manner agreeable to them” (Official Comment 5, McKinney’s Cons Laws of NY, Book 62V2, Uniform Commercial Code, § 2-509). It is, however, a recognized principle that "if the parties have made a memorial of their bargain * * * the law does not recognize * * * their intent, unless it is expressed in, or may fairly be implied from, their writing” (4 Williston, Contracts [3d ed], § 600A, p 286). It has also been established that when words have a well-understood meaning the courts are not permitted to search for the intent of the parties (see Nau v Vulcan Rail & Constr. Co., 286 NY 188, 197). The term "FOB PLANT” is well understood to require delivery to the carrier and does not imply any other meaning. If a contrary meaning was intended, an express statement varying the ordinary meaning is required. The statements made by an officer of the buyer and the other circumstances of this case are not enough to show that the term did not mean what it does in ordinary commercial transactions. One of the principal purposes of the code is to simplify, clarify and modernize the law governing commercial transactions (Uniform Commercial Code, § 1-102, subd [2], par [a]). To allow a commonly used term such as F.O.B. to be varied in meaning, without an express statement of the parties of an intent to do so, would not serve that purpose.

Accordingly, the order of the Appellate Division which granted the buyer’s motion for summary judgment should be affirmed, with costs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed.


text:
    The People of the State of New York, Appellant, v Mary Ann Parker, Respondent.
    Argued October 14, 1976;
    decided December 2, 1976

      Francis J. Vogt, District Attorney (E. Michael Kavanagh and Edward M. P. Greene of counsel), Kingston, for appellant.

      Mitchell J. Horne, Woodstock, and Stephan G. Rothenberg, Kingston, for respondent.

      Louis J. Lefkowitz, Attorney-General (Jules E. Orenstein and Samuel A. Hirshowitz of counsel), New York City, intervenor pro se.

   Gabrielli, J.

Defendant claims, inter alia, that the challenged statute violates the equal protection guarantee of the Fourteenth Amendment of the United States Constitution and section 11 of article I of the New York State Constitution. This claim is founded upon the argument that an individual may be sentenced to a term of imprisonment in excess of one year in a foreign jurisdiction for a crime which might not constitute a felony in New York. It is thus claimed that an individual who has committed a crime which warranted a sentence in excess of one year in another jurisdiction but which did not constitute a felony in New York is treated discriminatorily and more harshly than a person who has committed the same acts in New York but who does not receive multiple offender treatment under section 70.06 (citing People v Morton, 48 AD2d 58; People v Downs, 49 AD2d 964; People v Mazzie, 78 Misc 2d 1014, 1018-1019). While these cases have sustained a constitutional challenge, other courts have held that the statute is constitutional and that the Legislature may rationally provide for increased punishment for individuals who have violated the criminal standards of other jurisdictions, irrespective of whether the crimes in those other jurisdictions are felonies in New York (see People v Wright, 50 AD2d 729; People v Mercogliano, 50 AD2d 907; People v Darson, 48 AD2d 931; People v Wixson, 79 Misc 2d 557, 565-566; United States ex rel. Mercogliano v County Ct. of Nassau County, 414 F Supp 508, affd on opn below 556 F2d 557).

We need not reach this question posed by the defendant since we hold that former subdivision 1 of section 70.06 of the Penal Law is constitutional as applied to the defendant in this case, and therefore, she does not have standing to challenge the constitutionality of the statute as applied to one not in her position. One who challenges the constitutionality of a statute is required to establish that the enactment as applied to him violates a constitutional norm (Oriental Blvd. Co. v Heller, 27 NY2d 212, 220; People v Merolla, 9 NY2d 62, 68-69; People v Faxlanger, 1 NY2d 393, 395; People v Terra, 303 NY 332, 334; United States v Raines, 362 US 17, 21; 8 NY Jur, Constitutional Law, § 50, p 577). In the instant case, the defendant may not claim that she is being treated more harshly than a defendant convicted of prior crimes in New York because the predicate North Carolina crime constitutes a felony both in North Carolina and in New York (People v Wright, 50 AD2d 729, supra). Defendant was convicted of larceny by breaking and entering, a felony under North Carolina law; and such an act would constitute a degree of burglary in New York, all forms of which are felonies here (Penal Law, §§ 140.20-140.30). Thus, the standard applied to determine whether this defendant’s prior conviction may be the basis for second felony offender status is precisely the same as that applied to a defendant convicted of similar prior crimes in New York. She may not therefore claim a denial of equal protection.

Nevertheless, because there may be incarcerated defendants who are affected by former subdivision 1 of section 70.06 and because the Appellate Divisions are in conflict over the constitutionality of the statute (see People v Morton, supra; People v Wright, supra; People v Darson, supra), we have decided that the question raised is of sufficient public importance that we should reach the merits of defendant’s claim despite her individual lack of standing. Additionally, crimes committed in other jurisdictions and, indeed, in some localities in this State, with differing social mores and standards of conduct take on added significance in our highly mobile society. We hold that the imposition of second felony offender status upon individuals convicted in other jurisdictions of crimes which in such other jurisdictions warrant sentence of imprisonment in excess of one year is rationally related to the valid governmental aim of treating habitual offenders more severely than first time offenders. The equal protection clause does not mandate absolute equality of treatment but merely prescribes that, absent a fundamental interest or suspect classification, a legislative classification be rationally related to a legitimate State purpose (People v Drayton, 39 NY2d 580, 584-585; Alevy v Downstate Med. Center, 39 NY2d 326, 332-334; Montgomery v Daniels, 38 NY2d 41, 61; Marshall v United States, 414 US 417, 422; McGinnis v Royster, 410 US 263, 270). While persons guilty of acts which are felonies in other jurisdictions but not in New York, are treated as second felony offenders, the statutory classification does not result in treatment so disparate as to be arbitrary or invidiously discriminatory (Walters v City of St. Louis, 347 US 231, 237). In New York a felony is defined as a crime for which a sentence of imprisonment in excess of one year may be imposed (Penal Law, § 10.10, subd 5). Thus, in this State, all persons who have been convicted, either in New York or another jurisdiction, of a crime for which a sentence in excess of one year may be imposed, are subject to second felony offender treatment and are treated equally.

The Legislature, in enacting the challenged provision, exercised its considered judgment to provide that the seriousness of a crime should be determined by the severity of the sentence and the norms prevailing in the jurisdiction in which a crime was committed. There is no warrant for any alarm in what may be termed as exaggerated fears of frivolous or perverse sister-State punishment. The possible disparity of treatment between prior New York offenders vis-á-vis prior out-of-State offenders does not vitiate the legislative decision that an individual who has previously elected to violate the criminal standards of the society in which he was found should be treated as an habitual offender. This rationale underlies provisions in the Model Penal Code (§ 7.05, subd [1]) and the American Bar Association Standards Relating to Sentencing Alternatives and Procedures (§ 3.3, subd [b], par [i]) from which the New York statute is derived. And, as noted, the well-founded purpose of providing for increased punishment of those who actually create the problem for themselves by persistent violations of penal statutes is to combat recividism by increased punishment, not for the previous out-of-State offense but, rather for the commission of the subsequent offense.

The United States Supreme Court has previously sustained, against an equal protection challenge, a West Virginia statute which, like its New York counterpart, posited habitual offender treatment upon the severity of the sentence imposed; under the West Virginia law, any person who had been convicted of a crime punishable by "confinement in a penitentiary” was subject to habitual offender treatment (Oyler v Boles, 368 US 448, 449; Graham v West Virginia, 224 US 616). In the latter case the court stated that "the fact of such sentence [confinement to a penitentiary], indicating the gravity of the offense, affords a reasonable basis for classification” (supra, p 630). More recently, the court, while not reaching the precise issue raised here, sustained a broad equal protection challenge to the Federal Narcotic Addict Rehabilitation Act (US Code, tit 18, §§ 4251-4255) which denies rehabilitative commitment and imposes penal incarceration upon persons convicted of two prior felonies (Marshall v United States, 414 US 417, supra); the act defines a felony as any offense in violation of a law of any State which at the time of the offense was classified as a felony by the law of the place where the offense was committed (US Code, tit 18, § 4251, subd [d]).

Thus, we conclude that the former New York statute, reflecting the determination that a crime punishable by a sentence in excess of one year should be considered a crime of sufficient severity to warrant second felony offender treatment, does not result in a denial of equal protection under either the Federal or State Constitutions (US Const, 14th Amdt, § 1; NY Const, art I, § ll).

It should be noted that subdivision 1 of section 70.06 of the Penal Law was amended (L 1975, ch 784, § 1, eff Aug. 9, 1975) to provide that the foreign predicate conviction must be for a crime for which a sentence of imprisonment in excess of one year could be imposed in New York. Since, in this State, a felony is defined as an offense for which a sentence in excess of one year may be imposed (Penal Law, § 10.00, subd 5), the law thus provides that the predicate conviction, if obtained in a foreign jurisdiction, must be for acts which would constitute a felony under New York law. This amended definition of a second felony offender has been characterized as a "fairer and more logical approach” (see Hechtman, 1975 Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 70.06), but it does not follow from this that the amendment was constitutionally mandated (United States ex rel. Mercogliano v County Ct. of Nassau County, 414 F Supp 508, 512, supra).

We s may briefly dispose of defendant’s State constitutional claims that (1) former section 70.06 delegates the lawmaking futiction of the Legislature in violation of section 1 of article III of the New York State Constitution and (2) that it results in an incorporation by reference of other laws in violation of section 16 of article III of the State Constitution. The statutory definition in the former version of the statute does not result in a delegation of legislative power but merely applies the New York definition of a felony (crimes for which a term of imprisonment in excess of one year may be imposed) to crimes committed in other jurisdictions. The constitutional provision was not intended to prohibit the Legislature from considering the criminal records of defendants in other jurisdictions in determining whether more serious punishment should be imposed upon habitual offenders. Section 1 of article III which was designed to insure a representative form of government in this State (see Stanton v Board of Supervisors of County of Essex, 191 NY 428, 431-432) has no relevance or application to the instant case. Likewise, defendant’s additional State constitutional claim is without merit. Section 16 of article III of the New York State Constitution provides that, "[n]o act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act.” It is manifest that the challenged statute does not attempt to incorporate any other statute into New York law. Section 70.06 simply authorizes the court to utilize a foreign conviction as a predicate felony for purposes of determining whether a defendant should receive increased punishment and sets forth the circumstances in which a crime committed in another jurisdiction may be considered a predicate felony in New York. The foreign conviction involves the application of foreign law but does not in any way make that law applicable in New York. Carried to its extreme, defendant’s argument entails the erroneous conclusion that the Legislature could not provide that any foreign conviction, whether a felony in another jurisdiction or in New York, may be a predicate felony for multiple offender treatment. It is clear that former section 70.06 violates neither the letter nor the spirit of the constitutional provision.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for further proceedings.

Chief Judge Breitel and Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur.

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

      . Subdivision 1 of section 70.06 of the Penal Law has been amended since the sentencing of the defendant in this case (L 1975, ch 784, § 1, eff Aug. 9, 1975; see discussion, p 27, infra).

      . Former subdivision 1 of section 70.06 of the Penal Law provided in pertinent part that:
      "(a) A second felony offender is a person who stands convicted of a felony defined in this chapter * * * after having previously been subjected to one or more predicate felony convictions as defined in paragraph (b) of this subdivision.
      "(b) For the purpose of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply:
      "(i) The conviction must have been in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized irrespective of whether such sentence was imposed.”

      . This case, of course, does not fall within recognized exceptions to the general rule, as in the area of free speech (see, e.g., United States v Raines, 362 US 17, 22; Smith v California, 361 US 147, 150-151) and in certain unique situations where there is close nexus between the plaintiff and the party whose constitutional rights are alleged to have been violated (see, e.g., Griswold v Connecticut, 381 US 479; Barrows v Jackson, 346 US 249; Pierce v Society of Sisters, 268 US 510).

      . Subdivision (a) of section 14-54 of the North Carolina Criminal Law provides, in pertinent part, that, "[a]ny person who breaks or enters any building with intent to commit any felony or larceny therein is guilty of a felony”.

      . Habitual offender statutes have been sustained against a variety of constitutional challenges based on, inter alia, equal protection, due process, double jeopardy and cruel and unusual punishment and, indeed, defendant does not dispute the general proposition that States may impose harsher punishment on recidivists (see, e.g., Spencer v Texas, 385 US 554, 559-560; McDonald v Massachusetts, 180 US 311; Moore v Missouri, 159 US 673).

      . Parenthetically, it is significant that a defendant may challenge a conviction obtained in violation of his constitutional rights and a conviction so obtained may not serve as a predicate felony (CPL 400.21, subd 7, par [b]).


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Tyrone Huffman, Appellant.
    Argued September 15, 1976;
    decided December 16, 1976

      Matthew Muraskin, James J. McDonough and Eugene Murphy, Mineola, for appellant.

      Denis Dillon, District Attorney (Robert A. Zausmer, William C. Donnino and Martin I. Saperstein of counsel), Mineola, for respondent.
   Jasen, J.

The significant issue on this appeal is whether the extemporaneous admission of an unidentified individual, elicited by a single question from police officers conducting an on-the-scene investigation of possible criminal activity, is admissible, though the standard preinterrogation warnings were not administered until after the admission had been made.

On June 9, 1974, Long Beach Police Officers Richard Brooks and Daniel Bart were assigned to an early morning tour of duty in a radio patrol car. At approximately 4:30 a.m., the officers drove down the alleyway behind East Park Avenue with their car lights extinguished. They observed several individuals standing on the rear steps leading to the back door of a delicatessen. As the police vehicle approached the steps, the group split up and its members began to run. Officer Brooks, the operator of the patrol car, turned on the headlights. The officers observed the man who had been standing closest to the delicatessen door run down the steps, turn right, and go behind some bushes adjacent to the delicatessen. The police car stopped abreast of the bushes and both officers left the vehicle. Officer Brooks saw the man standing behind the bushes looking at him, and drew his revolver but held it at his side, with the barrel pointing down. His partner, Officer Bart, loosened the clasp on his holster, placed his hand on his weapon but did not draw it. Officer Brooks ordered the man to come out from behind the bushes. When the man emerged, with empty hands held in the air, both officers, with the danger past, fully secured their weapons. The man, subsequently identified as Tyrone Huffman, the defendant, was asked, "What are you dong back here?” Huffman replied, "We were trying to break into that store.” Officer Brooks then told him, "That’s enough, don’t say anything else. Just get in the back of the car.” Before entering the police car, defendant was given the standard four-fold preinterrogation warnings set forth in Miranda v Arizona (384 US 436). This exchange was completed in approximately one minute or less.

After the warnings had been given and defendant placed in the car, the officers asked him what had happened to his companions. Defendant replied, "They are around the corner.” In the meantime, Officer Bart heard a noise emanating in the garage next to the bushes. He entered the garage and found another individual. The officer asked this person what he was doing. In response, the man told the officer that he lived in the house that was attached to the garage. "That’s where I live.” Officer Bart did not pursue the matter further and returned to the patrol car.

As the officers were driving away from the scene, they observed three men crouched behind an automobile on a nearby street. The defendant was asked, "Are those your friends that were involved in breaking in?” Defendant stated that they were. As observed earlier, defendant had already received preinterrogation warnings and was therefore aware of his right to remain silent. All the men were placed in the car and cautioned not to talk to each other during the drive to the police station. The officers arrived at the station at approximately 4:40 a.m. The officers then waited with the defendant for 20 minutes until Detective O’Neill arrived. Aside from a pedigree taken by a desk officer, during this wait the police did not converse at all with the defendant. Defendant was brought to an upstairs interrogation room. After being advised of his rights for a second time, the defendant gave the police an oral statement that was subsequently reduced to writing. In the written statement, defendant admitted that he and four friends had been looking for money and were attempting to break into the delicatessen. The delicatessen management kept a rope under the door for the use of restaurant employees and defendant was attempting to reach under the door, grab the rope and use it to force open the door. Defendant read the statement aloud to the officers, initialed some corrections, and signed the statement.

After a hearing on a motion to suppress defendant’s oral and written admissions, the trial court found "that the mere cursory, threshold-type inquiry made by Officer Brooks to the defendant at the scene, did not constitute interrogation and thus does not fall within the ambit of Miranda. [Miranda v Arizona, 384 US 436, supra.] This premise is also substantiated by the fact that immediately after the defendant’s response, the officer told him to say no more. The court was further persuaded by the brevity of the encounter at the scene, lasting less than a minute.” Upon trial, defendant was convicted by a jury of attempted burglary in the third degree. The Appellate Division unanimously affirmed the judgment of conviction, without opinion. (49 AD2d 1039.) The order of the Appellate Division should be affirmed.

In Miranda v Arizona (384 US 436, supra), the Supreme Court was concerned with the development of procedures which would assure that an individual subject to custodial police interrogation would be accorded the Fifth Amendment privilege against compulsory self incrimination. (384 US, at p 439.) The court summarized its holding as requiring that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” By procedural safeguards, the court was referring to the four-fold warnings that have now become so familiar to lawyers, the police and the public. (384 US, at pp 444-445.)

Here, the defendant concedes that the police had the right to stop him pursuant to CPL 140.50 (subd 1). Rather, his "objection is to the coercion of answers to the questions posed with guns drawn.” The contention is that defendant had been deprived of his liberty and that, under Miranda and our decision in People v Shivers (21 NY2d 118), any questioning had to be preceded by warnings. Since the defendant had not been advised of his rights prior to the initial oral admission, it is argued, the admission and all subsequent admissions are inadmissible. (Cf. People v Tanner, 30 NY2d 102.)

Our decisions, in applying Miranda, have consistently recognized the distinction between coercive interrogation and permissible street inquiry. In People v Rodney P. (Anonymous) (21 NY2d 1), police officers approached the defendant in front of his home and asked to speak to him privately. The officers then questioned defendant for approximately three minutes about his conduct that afternoon. We stated that "[t]his kind of questioning is little different from routine police investigation of crimes or suspicious conduct at a person’s home, his place of business or on the street—the kind of questioning which has uniformly been held not to require the Miranda warnings.” (21 NY2d, at pp 10-11.) The fact that the defendant might have been restrained if he had attempted to leave was not considered controlling. The test which we established was whether the defendant "as a reasonable person” would believe that his freedom had been significantly restrained. (21 NY2d, at p. 10.)

In People v Shivers (21 NY2d 118, supra), the defendant and a companion were interrogated at length, without warnings, by a police officer who was holding a drawn gun pointed in their direction. We ruled that "once [an] officer * * * draw[s] his gun, the individual interrogated is actually deprived of his freedom and, under Miranda, he may no longer be questioned without first being warned of his rights, and any statement elicited without such warnings may not be received in evidence, or otherwise used, at a subsequent trial.” (21 NY2d, at p 122.) Our determination was predicated on the extensive interrogation conducted at gunpoint, a significant deprivation of defendant’s freedom. The circumstances of a gunpoint interrogation are such as to "affect substantially the individual’s ’will to resist and compel him to speak where he would not otherwise do so freely.’ ” (21 NY2d, at p 121, quoting People v Rodney P. [Anonymous], 21 NY2d 1, 11, supra, and Hoffa v United States, 385 US 293, 304.)

The critical standard running throughout the subsequent cases is whether the police have engaged in "custodial interrogation”. Whether this standard is present generally presents a mixed question of law and fact. (People v Paulin, 25 NY2d 445, 449.) However, both the elements of police "custody” and police "interrogation” must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda. The fact that there may have been police questioning is not controlling. Custodial admissions are not suppressible unless produced by a process of interrogation designed to elicit statements from the defendant. (People v Cerrato, 24 NY2d 1, 9-10, cert den 397 US 940; see People v R. N., 23 NY2d 963.) Nor is there any constitutional requirement that the police recite interrogation warnings when they direct questions or comments at members of the public or solicit information and assistance. A contrary holding would be impracticable, destructive of stable police-community relationships, and was never intended, by any stretch of the imagination, by Miranda. (Cf. People v De Bour, 40 NY2d 210, 218-219.)

Applying the foregoing principles to this case, we recognize that the defendant was undoubtedly subject to the enforced custody of the police when he stepped out from behind the bushes. Although the officers had reholstered their weapons, a reasonable man would have to conclude thát defendant’s liberty had been significantly restricted. The display of the weapons had caused the defendant to come forward from his hiding place in acquiescence to the authority and force of the officers. The weapons had been injected into the situation and their presence, although reholstered, was a factor which a reasonable person could not lightly ignore. Although the incident did not occur at a police station house, the presence of drawn and reholstered weapons is indicative of a "police-dominated” atmosphere which could affect defendant’s will to resist. (People v Shivers, 21 NY2d 118, supra.) This is not to say that the police action in drawing weapons was unjustified. To the contrary, the police were legitimately on guard against a potential assault from an unknown person fleeing from what appeared to be the scene of criminal activity. Their action was a necessary safety measure. Nevertheless, by drawing their weapons on the defendant and thereby obtaining his acquiescence to their authority, the officers gained custody and control of the defendant.

We conclude, however, that the single question propounded to the defendant by the officer did not constitute a process of interrogation to which Miranda is applicable. The conduct of the defendant was, obviously, highly suspicious behavior and the question—"What are you doing back here?”—was designed to clarify the nature of the situation confronted, rather than to coerce a statement. It is significant that the police officers were not engaged in an after-the-fact investigation at the station house. They had found themselves, quite inadvertently, in the middle of a possible criminal transaction and immediate clarification was necessary before taking drastic action. Of the person coming out from the bushes, it was essential to know what he had been doing, hence the inquiry. This was no time for preinterrogation warnings, or the tender of legal representation. In short, the single question and answer were not a part of an interrogation of a suspect. Instead, they were virtually verbal acts in an ongoing crime event at a crime scene. Shivers, thus, is not controlling since in that case a definite crime had been committed, the criminal events at the crime scene had been concluded and the interrogation took place at a distance from the situs of the crime. Here, it was by no means certain that any crime had occurred, the activity, criminal or not, was ongoing, and the question was asked at the scene. Notably, the same question was put to the resident, near the scene of this activity, who had attracted police attention by making some noise in his garage. The question did not compose an after-the-fact interrogation at which Miranda was aimed. The answer, as it turned out, was incriminating. Nevertheless, it was an extemporaneous statement, elicited in the midst of the crime event and uttered in the knowledge that defendant had been discovered hiding in bushes at 4:30 in the morning. In fact, the answer was broader than the question and its incriminating nature took the officers by surprise. To their credit, the officers recognized that defendant might not be aware of his constitutional rights and immediately cut the defendant off and advised him of his rights.

Although not legally relevant to the primary issue, it is notable that defendant later co-operated with the police in apprehending his companions and provided further information even after he had been informed of his rights. Although the initial extemporaneous incriminating answer was, of course, prompted by the equally extemporaneous and essential question and, thus, the question was the producing cause of the response, we cannot say that, as a matter of law, the self incriminating statement was excludible under the Miranda rules. The absence of any extended questioning and the developing and continuing nature of the criminal activity are significant factors which distinguish this case from Shivers. The subsequent oral and written admissions, each preceded by ample warnings, were also admissible.

There is one further point requiring discussion. Defendant, prior to selection of the trial jury, submitted a written motion challenging the composition of both the Grand Jury that indicted him and the jury panel from which the trial jury was to be selected. This motion, predicated upon Taylor v Louisiana (419 US 522) was based upon the allegation that New York had unconstitutionally excluded women from jury service. While the motion was effective to raise a challenge to the jury panel (CPL 270.10), the motion did not preserve a challenge to the composition of the Grand Jury, an issue previously waived as a result of defendant’s failure to make a timely motion to dismiss the indictment (CPL 210.20, 210.35; Birch v Wilson, 40 NY2d 1078). Moreover, defendant failed to submit any proof that would establish systematic exclusion of women and, hence, his challenge to the jury panel was properly rejected on the merits. (People v Parks, 41 NY2d 36.)

The order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.