author: Jones, J.

text:
    Edward I. Koch, as Mayor of the City of New York, et al., Respondents-Appellants, v Consolidated Edison Company of New York, Inc., Appellant-Respondent.
    Argued May 2, 1984;
    decided June 14, 1984

      POINTS OF COUNSEL
    respondent.
    I. The Food Pageant jury verdict alone should not preclude litigation of the issue of Con Edison’s culpability. (Gilberg v Barbieri, 53 NY2d 285; Schwartz u Public Administrator, 24 NY2d 65; Read v Sacco, 49 AD2d 471; Berner v British Commonwealth Pacific Airlines, 346 F2d 532, 382 US 983; Parklane Hosiery Co. v Shore, 439 US 322; Hardy v Johns-Mancille Sales Corp., 681 F2d 334; Crawford v Ranger Ins. Co., 653 F2d 1248; Young v United States, 518 F Supp 921; Grill v United States, 516 F Supp 15, affd sub nom. United States v Solomon, 697 F2d 300; Zdanok v Glidden Co., 327 F2d 944, 377 US 934.) II. Con Edison is not legally responsible to its customers for consequences beyond physical injury to a customer’s property or person that directly results from the service interruption and is necessarily contemplated by Con Edison’s tariff obligation to endeavor to provide uninterrupted service. (Ventricelli v Kinney System Rent A Car, 45 NY2d 950; Pulka v Edelman, 40 NY2d 781; Danielenko v Kinney Rent A Car, 57 NY2d 198; Matter ofTMI Litigation Governmental Entities Claims, 544 Supp 853; City of New York v Pullman, Inc., 662 F2d 910, cert den sub nom. Rockwell Int.

      Corp. v City of New York, 454 US 1164; United States v Denver & Rio Grande Western R.R. Co., 547 F2d 1101; New York State Thruway Auth. v Civetta Constr. Corp., 62 AD2d 530; Kornblut v Chevron Oil Co., 62 AD2d 831, 48 NY2d 853; Bright v Goodyear Tire & Rubber Co., 463 F2d 240; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314.)

      Frederick A. 0. Schwarz, Jr., Corporation Counsel (.Alfred Weinstein, Leonard Koerner and Daniel E. Katz of counsel), for respondents-appellants.
    I. Plaintiffs are third-party beneficiaries of the service agreement. Moreover, there was neither authority nor motive for making it for the benefit of other than designated customers. (Moch Co. v Rensselaer Water Co., 247 NY 160; Kornblut v Chevron Oil Co., 62 AD2d 831, 48 NY2d 853; Drake v Drake, 89 AD2d 207; Goodman-Marks Assoc, v Westbury Post Assoc., 70 AD2d 145.) II. Con Edison has not sustained its burden of establishing warrant to preclude the application of the judicial policy of collateral estoppel. (Food Pageant v Consolidated Edison Co., 54 NY2d 167; B.R. DeWitt, Inc. v Hall, 19 NY2d 141; Hart v American Airlines, 61 Mise 2d 41; Shaid v Consolidated Edison Co., 95 AD2d 610; Freedman v Chemical Constr. Corp., 43 NY2d 260; Schwartz v Public Administrator, 24 NY2d 65.) III. There is no question of fact regarding plaintiffs’ asserted status as third-party beneficiaries of the service agreement. (American Express Co. v United States Lines, 76 AD2d 428.) IV. The damage issues present questions of fact. (Glanzer v Shepard, 233 NY 236; White v Guárante, 43 NY2d 356; Zucker-man v City of New York, 49 NY2d 557; Pulka v Edelman, 40 NY2d 781; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Loeser v Hale Gardens, 73 AD2d 187; Kornblut v Chevron Oil Co., 62 AD2d 831; Seagroatt Floral Co. vNew York Tel. Co., 76 AD2d 1038; Stone v Schenectady Ry. Co., 99 App Div 44; Curry v Norwood Elec. Light & Power Co., 125 Mise 279.)
   OPINION OF THE COURT

Jones, J.

The determination made in a prior action that Con Edison was grossly negligent in connection with the 1977 blackout in the City of New York is binding and conclusive on Con Edison in this action. Although plaintiffs may recover damages for physical injury to persons and property directly resulting from the service interruption, including damages resulting from looting and vandalism by rioters, they may not recover damages for additional expenditures, occasioned by the blackout, made by plaintiffs in the performance of their governmental functions, nor may they recover for loss of revenues assertedly attributable to the blackout.

On July 13,1977 at approximately 9:36 p.m. there was a complete failure of electrical service in the City of New York except for an area in the Borough of Queens which was supplied by the Long Island Lighting Company. The blackout lasted for approximately 25 hours with power not being completely restored until approximately 10:40 p.m. on July 14.

The present action was instituted on September 7, 1978 by the City of New York and 14 public benefit corporations to recover damages allegedly sustained as a result of Con Edison’s gross negligence and reckless and willful conduct with respect to the blackout.

Plaintiffs moved for partial summary judgment with respect to Con Edison’s liability for gross negligence “on the ground that, under the doctrine of collateral estoppel, a prior determination in another lawsuit (Food Pageant, Inc. v. Consolidated Edison Co., Inc., Supreme Court, Bronx County, Index No. 16971/77) that the July 13-14, 1977 electric power failure * * * resulted from the gross negligence of the defendant Consolidated Edison, is conclusive and binding on the defendant Consolidated Edison in this action”. Con Edison thereupon made a cross motion for partial summary judgment, so far as pertinent for the purposes of the present appeal, (1) dismissing plaintiffs’ claims based on Con Edison’s contracts with the Power Authority of the State of New York (PASNY) because “plaintiffs are neither parties nor third-party beneficiaries of those contracts”, (2) dismissing “plaintiffs’ claims for damages attributable to criminal activity, civil disturbances, municipal employee absenteeism and lost productivity” because “superseding causes preclude imposition of liability upon Con Edison for such damages”, and (3) dismissing “plaintiffs’ claims for reimbursement of municipal expenditures incurred during July 13-14, 1977” because “plaintiffs cannot recover as damages the costs of governmental operations which they were created to perform”.

Special Term granted plaintiffs’ motion and denied Con Edison’s motion as described above. The Appellate Division affirmed, without opinion, and granted both plaintiffs and Con Edison leave to appeal to our court. We modify the determination at the Appellate Division.

We agree with both courts below that on the issue of Con Edison’s liability for gross negligence in connection with the blackout, Con Edison is precluded by the adverse determination of the issue in Food Pageant v Consolidated Edison Co. (54 NY2d 167). The applicable principle in this case is that of third-party issue preclusion.

It is plaintiffs who seek to invoke the principle of third-party issue preclusion to bar Con Edison from relitigating its liability for gross negligence. It is not disputed that this issue was actually litigated and determined by a valid and final judgment in Food Pageant and that the determination of that issue was essential to the judgment in that case. Plaintiffs contend, therefore, that the determination in Food Pageant is binding and conclusive in this case. Con Edison, having the burden to demonstrate that the circumstances of the prior determination justify affording it an opportunity to relitigate the issue of liability, advances several arguments in support of its contention that the determination in Food Pageant is not to be given preclu-sive effect. These arguments, taken singularly or in combination, do not warrant the result for which Con Edison contends, and Con Edison has not tendered sufficient proof in admissible form to require trial of any issue of fact or reversal of the exercise of judgment by the courts below.

It is first contended that third-party issue preclusion should not apply because there are other judicial determinations concluding that Con Edison was not guilty of gross negligence in connection with the blackout. Whatever might be said of the effect properly to be given to inconsistent determinations of like judicial stature, in this instance it suffices to dismiss Con Edison’s contention to observe that the inconsistent determinations on which it would rely are those in cases tried in the Small Claims Part of the Civil Court of New York City as to which informal and simplified procedures are and which by express statutory provision are not to be deemed an adjudication of any fact at issue (other than the amount involved) with respect to any other action.

Con Edison next argues that there is now available exculpatory evidence which in fairness requires that it be permitted to relitigate the issue of liability. Reference is made to investigative reports, in particular to the so-called Clapp Report. These reports were available and offered but rejected in the Food Pageant trial. Nothing suggests that the exclusion of this hearsay evidence was there error (and any contention that it was could have been subjected to appellate review on the appeal in that case), and no persuasive argument is now advanced to support admissibility in this case.

Con Edison next makes an oblique plea that we should reintroduce the former requirement of mutuality which we declared “a dead letter” in B.R. DeWitt, Inc. v Hall (19 NY2d 141, 147). To grant this plea would, of course, be entirely to eliminate third-party issue preclusion. It is understandable that Con Edison should express concern, in the light of the multiplicity of claims arising out of the blackout, that the issue of its gross negligence will have been established in each case. Nevertheless, no sufficient justification is advanced to turn the clock back with respect to so fundamental a legal development as the elimination of the requirement of mutuality. We have been committed since DeWitt, and indeed even before (Israel v Wood Dolson Co., 1 NY2d 116), to the proposition that efficient utilization of the judicial system is served by preclusion of reliti-gation of issues as to which a litigant has had a full and fair opportunity for resolution, irrespective of the identity of his particular opponent. Nor does Con Edison advance any intermediate position warranting a different application of the principles of third-party issue preclusion with respect to a multiplicity of claims arising out of a community-wide disaster such as the in this case.

It is then argued that the determination in Food Pageant should not be given preclusive effect because of indications that it was the result of compromise in the jury room. No tender has been made, however, of proof in admissible form sufficient to require trial of this factual issue. The arguments of Con Edison are grounded only in speculation, and it cannot be said as a matter of law that the Food Pageant verdict was the result of impermissible compromise.

The circumstance, to which Con Edison next points, that the claim in Food Pageant and the amount of the jury’s verdict ($40,500) may be said to be “small in absolute terms and particularly so when compared to the aggregate of over $200 million in claims against Con Edison arising out of the 1977 blackout”, provides no basis to deny application of third-party issue preclusion. In Food Pageant, Con Edison had a full and fair opportunity to litigate the issue of gross negligence, the forum and applicable procedures were the same, the burden of persuasion was the same, and Con Edison, explicitly then recognizing the potential preclusive effects of an adverse determination in that case, had every incentive to defend that action fully and vigorously.

Nor does the adoption of a rule of comparative negligence in New York (CPLR art 14-A) foreclose application of third-party issue preclusion in the circumstances of this case. No contention whatsoever is put forth by Con Edison that any action or omission to act on the part of any of plaintiffs contributed to cause the blackout. There simply is no issue of comparative negligence involved in the question of Con Edison’s responsibility for the blackout. It may be, however, that principles of mitigation will require consideration of certain action Or inaction on the part of plaintiffs in the determination of damages.

Finally with respect to the preclusion issue, we reject as wholly without merit Con Edison’s assertion that to apply third-party issue preclusion would be to deprive it of the due process to which it is constitutionally entitled. The characterization of this appeal as “presenting a question of fundamental fairness” neither concludes nor advances the argument. Con Edison cites no authority, and we know of none, which now regards the application of third-party issue preclusion as posing a question of constitutional dimension where in the prior action a full and fair opportunity to litigate has been afforded.

For the reasons stated we conclude that the prior determination in Food Pageant with respect to Con Edison’s liability for gross negligence in connection with the 1977 blackout is binding and conclusive on Con Edison in this action.

We reject, too, Con Edison’s argument that because the city and the other plaintiffs associated with it were customers of PASNY and not direct customers of Con Edison, they are not entitled to recover against Con Edison. In 1974 a new section, “§1001-a. Emergency Provisions For The Metropolitan Area of the City of New York”, was added to the Public Authorities Law (L 1974, ch 369, § 2). Pursuant to the authorization of that section, in December, 1974 and December, 1975 PASNY acquired from Con Edison two partially completed generating units (the Astoria 6 and the Indian Point 3 Units). The underlying legislation and both acquisitions anticipated that Con Edison would continue to provide transmission and delivery of the electricity produced in the two plants. In conformity with that expectation, a service agreement was entered into by PASNY and Con Edison for delivery of power and energy from the Astoria 6 Unit and the Indian Point 3 Unit, in which was recited Con Edison’s willingness, by use of its existing facilities, to assist PASNY in serving the needs of the Astoria-Indian Point customers, and Con Edison became obligated to provide the same quality of service to PASNY’s customers as it did to its own customers and under Con Edison’s regular tariff schedules. In a simultaneously executed “Contract for the Sale of Power and Energy”, Con Edison agreed to provide sufficient energy to meet the requirements of PASNY’s affected customers.

Against this background we have no difficulty in concluding that all the plaintiffs were third-party beneficiaries of the agreements between PASNY and Con Edison. They were precisely the consumers for whose benefit the legislation was enacted and the agreements made between PASNY and Con Edison.

To be distinguished are our holdings in Moch Co. v Rensselaer Water Co. (247 NY 160 [contract between water company and city to supply water for fire hydrants did not create a duty to member of the public]) and Kornblut v Chevron Oil Co. (62 AD2d 831, affd on opn below 48 NY2d 853 [contract with Thruway Authority to provide repair services did not create duty to members of the public]). In neither of those cases did the operative contract provide that the service was to be rendered other than for the contracting party, city or authority. Moreover, in Moch we noted the distinction between the agreement of the water company, there in issue, to furnish water at the hydrants and the agreement of the water company to provide direct service to members of the public at their homes and factories (247 NY, pp 164, 166). In the present instance, the purpose of the enabling legislation was expressly stated to be “To preserve reliability of electric service in the metropolitan area of the city of New York” (Public Authorities Law, § 1001-a, subd 1), and the service agreement contained the express obligation to “operate and maintain all the facilities necessary to deliver power to Astoria-Indian Point Customers [which included plaintiffs] in accordance with good utility operating practice”. Indeed, the essence of the responsibility of a public utility is to provide services to the consuming public.

We turn then to issues posed by Con Edison’s motion for partial summary judgment with respect to the extent of the damages to which plaintiffs may be entitled, on appropriate supporting proof, observing that plaintiffs’ action sounds both in contract and in tort. Initially we note that procedurally Con Edison may raise challenges in this regard by a motion for partial summary judgment seeking dismissal of claims for specified and distinct categories of damages (CPLR 3212, subd [e]; see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:30, p 448).

It is not disputed that plaintiffs would be entitled, on supporting proof, to recover damages for physical injury to persons and property directly resulting from the service interruption. Con Edison disputes their right, however, to recover damages resulting from looting and vandalism by rioters related to the blackout. We reject this contention inasmuch as plaintiffs have shown facts sufficient to require a trial of the factual question of whether intervention of the rioters was within the contemplation of the parties or reasonably to have been foreseen by Con Edison. If so, a jury could, under appropriate instructions, properly include this element of damage in any award to plaintiffs (cf. Nallan v Helmsley-Spear, Inc., 50 NY2d 507).

We rule in favor of Con Edison, however, as to two other categories of damage. Con Edison argues persuasively that plaintiffs should not be permitted to recover costs incurred for wages, salaries, overtime and other benefits of police, fire, sanitation and hospital personnel from whom services (in addition to those which would normally have been rendered) were required in consequence of the blackout. The general rule is that public expenditures made in the performance of governmental functions are not recoverable (see, generally, Matter of TMI Litigation Governmental Entities Claims, 544 F Supp 853, 855, mod sub nom. Pennsylvania v General Public Utilities Corp., 710 F2d 117 [caused by nuclear incident]; City of Bridgeton v B.P. Oil, 146 NJ Super 169, 178-179 [caused by oil spill]; Town of Freetown v New Bedford Wholesale Tire, 384 Mass 60 [caused by dumping of large quantity of tires]). The general rule is grounded in considerations of public policy, and we perceive nothing in the different and somewhat closer relationship between Con Edison and plaintiffs in this case which would warrant departure from that rule. We additionally note that certain exceptions to the general rule have been created by statutory enactment to give a municipality a claim for expenditures for fire fighting and other police power services. (See, e.g., General Municipal Law, § 207-c [municipality given a cause of action for reimbursement against third-party tort-feasor for any sums paid to injured policemen as salary and medical expenses]; id., § 209 [local fire department given claim for reimbursement for fire fighting costs against municipality which issued call for outside assistance]; id., § 209-g [municipality providing fire or police aid pursuant to § 209-e or § 209-f given claim against municipality requesting such aid]; State Finance Law, § 54-e [municipality whose fire department has responded to a fire on property under jurisdiction of New York State given right to submit claim for State reimbursement of fire fighting costs].) No statute is called to our attention which would accord a comparable benefit to plaintiffs in the circumstances of this case.

Finally, and we think effectively, Con Edison disputes the right of plaintiffs to recover revenues allegedly lost in consequence of the blackout — taxes not recovered on sales, transfers, and business transactions not undertaken, transit fares and tolls not paid, and receipts from wagers not placed with the Off-Track Betting Corporation. In the same category is to be included loss of productivity of employees due to absenteeism. The tender of proof of damages in this category is speculative only, determinable solely by reference to collateral transactions (or their absence), and insufficient to defeat Con Edison’s motion. (Cf. Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 334-335). Additionally, there are strong considerations of public policy which militate against recognition of losses sustained by municipal and public benefit corporations in consequence of adverse effects on the general economy. That there will inevitably be interruptions in utility services from time to time must be taken for granted. Loss of revenues by municipal and public benefit corporations in consequence of the interruption of utility services, however, is the economic counterpart of the incurment of added costs attributable to such interruption (see supra, pp 560-561). In neither case will recovery be allowed.

For the reasons stated, the order of the Appellate Division should be modified, without costs, to grant Con Edison’s motion for partial summary judgment dismissing plaintiffs’ claims for damages on account of expenditures made for additional governmental services furnished in consequence of the blackout and for loss of revenue and similar economic damage asserted to be attributable to the blackout, and as so modified, affirmed.

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

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed. Cross appeal by plaintiffs dismissed, without costs. Question certified answered in the negative.

      . When this case reached our court we upheld the jury verdict which found Con Edison to have been grossly negligent in causing the 1977 blackout and which awarded plaintiff grocery store chain damages in the sum of $40,500 for food spoilage and loss of business. (Food Pageant v Consolidated Edison Co., 54 NY2d 167).

      . Issue preclusion between the same parties is to be distinguished from third-party issue preclusion. In the former case as stated in section 27 of the Restatement of Judgments, Second — “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim”, subject to a very narrow range of exceptions {id.., § 28). By some contrast the principle of third-party issue preclusion is that, again in the phraseology of the Restatement (§ 29) — “A party precluded from relitigating an issue with an opposing party, in accordance with §§ 27 and 28, is also precluded from doing so with another person”. The range of circumstances which may lead to avoidance of preclusion, however, is now much broader — “unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue.” With respect to the distinction between issue preclusion between the same parties and third-party issue preclusion, see Matter of American Ins. Co. (Messinger — Aetna Cas. & Sur. Co.) (43 NY2d 184, 190).

      . (Schwartz v Public Administrator, 24 NY2d 65, 73.)

      . The relevant factors to be considered are set out in section 29 of the Restatement of Judgments, Second, and in Schwartz. Section 29 provides in full as follows:
      “§29. Issue Preclusion in Subsequent Litigation with Others
      “A party precluded from relitigating an issue with an opposing party, in accordance with §§ 27 and 28, is also precluded from doing so with another person unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue. The circumstances to which considerations should be given include those enumerated in § 28 and also whether:
      “(1) Treating the issue as conclusively determined would be incompatible with an applicable scheme of administering the remedies in the actions involved;
      “(2) The forum in the second action affords the party against whom preclusion is asserted procedural opportunities in the presentation and determination of the issue that were not available in the first action and could likely result in the issue being differently determined;
      “(3) The person seeking to invoke favorable preclusion, or to avoid unfavorable preclusion, could have effected joinder in the first action between himself and his present adversary;
      “(4) The determination relied on as preclusive was itself inconsistent with another determination of the same issue;
      “(5) The prior determination may have been affected by relationships among the parties to the first action that are not present in the subsequent action, or apparently was based on a compromise verdict or finding;
      “(6) Treating the issue as conclusively determined may complicate determination of issues in the subsequent action or prejudice the interests of another party thereto;
      “(7) The issue is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based;
      “(8) Other compelling circumstances make it appropriate that the party be permitted to relitigate the issue.”
      The articulation in Schwartz appears at page 72, as follows: “A decision whether or not the plaintiff drivers had a full and fair opportunity to establish their nonnegligence in the prior action requires an exploration of the various elements which make up the realities of litigation. A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation.”

      . (Penichet v Consolidated Edison Co., NYLJ, May 1, 1980, p 7, col 2; Lehman v Consolidated Edison Co., NYLJ, March 25, 1980, p 10, col 6; Finkelstein v Consolidated
        Edison Co., NYLJ, May 1,1979, p 13, col 3; LoVico v Consolidated Edison Co., 99 Misc 2d 897; Lee v Consolidated Edison Co., 95 Misc 2d1 120.)

      . CCA 1804 provides: “The court shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence, except statutory provisions relating to privileged communications and personal transactions or communications with a decedent or mentally ill person. Disclosure shall be unavailable in small claims procedure except upon order of the court on showing of proper circumstances. The provisions of this act and the rules of this court, together with the statutes and rules governing supreme court practice, shall apply to claims brought under this article so far as the same can be made applicable and are not in conflict with the provisions of this article; in case of conflict, the provisions of this article shall control.”

      . CCA 1808 provides: “A judgment obtained under this article may be pleaded as res judicata only as to the amount involved in the particular action and shall not otherwise be deemed an adjudication of any fact at issue or found therein in any other action or court.”

      . For discussion of recovery of damages by nongovernmental plaintiffs, see Dunlop Tire & Rubber Corp. v FMC Corp. (53 AD2d 150).

      . In private litigation, recovery of damages for loss of profits generally depends on the certainty and specificity of the proof (see Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150, 154-156). Thus, in Food Pageant (54 NY2d 167) a private litigant was awarded such damages. In that case, it is to be observed, Con Edison registered no protest to the charge that damages could be awarded for loss of profits, and in our court did not challenge the sufficiency of the evidence to support such an award.

      . The cross appeal taken by plaintiffs should be dismissed on the ground that it does not lie inasmuch as they took no appeal to the Appellate Division.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Gerard A. McCambridge, Appellant, v Robert J. McGuire, as Police Commissioner of the New York City Police Department and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents. In the Matter of Richard Knight, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York and as Executive Chairman of the Board of of the Police Pension Fund, Article II, et al., Respondents.
    Argued May 1, 1984;
    decided July 2, 1984

      POINTS OF COUNSEL

      Joseph O. Giaimo for appellant in the first above-entitled proceeding.
    Appellant has become disabled as a result of an accidental injury received in city service. {Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010; Matter of Menna v New York City Employees’ Retirement System, 59 NY2d 696; Matter of Valentin v Board of Trustees, 59 NY2d 702; Matter of Shannon v Board of Trustees, 59 NY2d 852; Matter of Schussler v Codd, 59 NY2d 698; Matter of McManus v McGuire, 59 NY2d 853.)

      Raymond E. Kerno and Richard Hartman for appellant in the second above-entitled proceeding.
    I. The denial of petitioner-appellant’s application for accident disability retirement was arbitrary and capricious since petitioner-appellant was disabled as the result of an accidental injury sustained in city service within the meaning of section B18-43.0 of the Administrative Code of the City of New York. {Matter ofDrayson v Board of Trustees, 37 AD2d 378, 32 NY2d 852; Matter of Schweitzer v Codd, 63 AD2d 66; Matter of Walsh v Codd, 68 AD2d 805; Johnson Corp. v Indemnity Ins. Co., 6 AD2d 97, 7 NY2d 222; Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010; Matter of Menna v New York City Employees’ Retirement System, 91 AD2d 537; Matter of Schussler v Codd, 91 AD2d 890; Matter ofCardone v Codd, 91 AD2d 909; Matter of Shannon v Board of Trustees, 92 AD2d 528.) II. The denial of petitioner-appellant’s application for accident disability retirement by respondents was arbitrary and capricious. Respondent erroneously based its determination on a finding that since petitioner-appellant’s service-connected injury was not related to crime control, it was not an accident within the meaning of section B 18-43.0 of the Administrative Code. Since this interpretation is devoid of statutory foundation, it must be set aside and the judgment below must be reversed. (Uniformed Firefighters Assn, v Beek-man, 52 NY2d 463.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Paul T. Rephen and Leonard Koerner of counsel), for respondents in the first and second above-entitled proceedings.
    The injury which caused petitioners’ disability did not, as a matter of law, constitute an accident for the purposes of accident disability retirement under section B18-43.0 of the Administrative Code. Accordingly the determination by the Board of Trustees of the Police Pension Fund to deny their applications for accident disability retirement and to retire them on half pay for ordinary disability should not be set aside. (.Matter of Canfora v Board of Trustees, 60 NY2d 347; Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010; Matter of Valentin u Board of Trustees, 91 AD2d 916, 59 NY2d 702; Matter of Shannon v Board of Trustees, 92 AD2d 528, 59 NY2d 852; Matter of Del Grosso v McGuire, 113 Mise 2d 440, 93 AD2d 1002, 59 NY2d 606; Matter of Menna v New York City Employees’ Retirement System, 91 AD2d 537; Matter of Covel v New York State Employees’ Retirement System, 84 AD2d 902, 55 NY2d 606; Matter of Cavarretta u Regan, 86 AD2d 706; Matter of Anguish v Regan, 80 AD2d 695.)
   OPINION OF THE COURT

Per Curiam.

Petitioners in these article 78 proceedings have suffered disabling injuries during the course of their employment as New York City police officers. The issue in each case is whether the injury was the natural and proximate result of an accidental injury entitling the petitioner to an accident disability pension. The Board of Trustees denied accident disability pensions by a 6-6 vote and awarded ordinary disability pensions.

Petitioner McCambridge was a detective in the New York City Police Department. On November 8, 1979 he was assigned to the Queens County District Attorney’s office. While performing his duties he was sitting at the desk of a Detective Frank when Frank approached the desk to remove some papers from the drawer. Petitioner stood up to move away, placing his hand on Frank’s shoulder to steady himself. Frank unexpectedly moved away from the desk, however, causing petitioner to lose his balance and fall to the floor, twisting his knee as he did so. Surgical repair of the knee ligaments was required and Detective McCambridge is permanently disabled from performing his duties as a result.

Petitioner Knight was a patrolman in the New York City Police Department. On April 15,1979, while performing his duties, petitioner was about to enter his patrol car when he slipped on wet pavement, fell backwards and injured his left elbow. Surgical repair of the elbow was required and Patrolman Knight is permanently disabled from performing his duties as a result. The Medical Board found that the injury was accidentally sustained.

The Appellate Division affirmed judgments dismissing the petition in each case. In Knight the court referred to the language of our decision in Matter of Lichtenstein v Board of Trustees (57 NY2d 1010, 1012) which stated that an injury would not be accidental if it “occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties”. On the basis of that statement, the court found that petitioner had not sustained an accidental injury when he slipped on the pavement because the injury was sustained during the performance of his regular duties and resulted from a risk inherent in the job. The judgment dismissing the petition in McCambridge was affirmed by the Appellate Division on the authority of the court’s ruling in Knight. The error made by the Appellate Division and the dissent is in focusing on the petitioner’s job assignment, not on the precipitating cause of injury.

In order to obtain accident disability retirement, a petitioner must establish that he suffered physical or mental incapacitation “as a natural and proximate result of an accidental injury received in * * * city-service” (Administrative Code of City of New York, § B18-43.0). Not every line of duty injury will result in an award of accident disability. The injury must be the result of a “‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’” (Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010, 1012, supra). In each of these claims the injuries were sustained in the line of duty and were accidents within the common sense definition adopted in Lichtenstein. To be distinguished are injuries sustained while performing routine duties but not resulting from unexpected events, e.g., back strains sustained while putting a tire in the trunk of a city vehicle (Matter of Menna v New York City Employees’ Retirement System, 59 NY2d 696), while leaning over to place a ticket on a car (Matter of Lichtenstein v Board of Trustees, while lifting trash cans (Matter of Valentin v Board of Trustees, 59 NY2d 702), or a loss of hearing sustained as a result of practice sessions on the pistol range (Matter of Schussler v Codd, 59 NY2d 698). It is critical to the determination in each of the present cases that there was a precipitating accidental event — in one case the loss of balance and fall to the floor; in the other, the slip on the wet pavement and fall which was not a risk of the work performed, as in Covel (Matter of Covel v New York State Employees’ Retirement System, 84 AD2d 902, mot for lv to app den 55 NY2d 606).

Respondents contend that the court is bound by the decision of the Board of Trustees after a 6-6 vote (see Matter of Canfora v Board of Trustees, 60 NY2d 347; Matter of City of New York v Schoeck, 294 NY 559). The court may set aside a denial of accident benefits, however, when it concludes that the applicant is entitled to them as a matter of law. In these proceedings, decided by the Board of Trustees before the Lichtenstein decision, the Board applied an erroneous legal standard of accidental injury and therefore its decisions are set aside and both matters remitted to it for determination of the petitioners’ accident disability pension benefits.

Accordingly, in each case the order of the Appellate Division should be reversed, with costs, the petition granted and the matter remitted to Supreme Court, New York County, with directions to remand to respondents for further proceedings in accordance with this opinion (see Matter of McCambridge v McGuire, 94 AD2d 632; Matter of Knight v McGuire, 94 AD2d 623).

In reconsidering its decision, the Board should determine whether the injuries sustained by the petitioners were the result of a “ ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’”. (Matter of Lichtenstein v Board of Trustees, supra, at p 1012.) In applying this newly adopted standard of accidental injury to these cases, it is for the Board to say in the first instance from all the facts and circumstances present whether the injuries complained of here resulted from sudden, fortuitous mischances that were unexpected and out of the ordinary. To say, as the majority does, that the injuries complained of by petitioners were accidentally sustained, as a matter of law, within the meaning of the Administrative Code of the City of New York (§ B18-43.0), deprives the Board of making this factual determination in the first instance.

While it is proper for this court, as well as the Appellate Division, to set aside an administrative determination where it is evident that the administrative body in reaching its decision may have applied an erroneous legal standard in view of a subsequent decision of our court, neither the Appellate Division nor this court has the power to upset the determination of an administrative board on a question of fact unless there is no support for it. The courts have “ ‘no right to review the facts generally as to weight of evidence, beyond seeing to it that there is “substantial evidence” (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 108, p 460; 1 NY Jur, Administrative Law, §§ 177, 185; see Matter of Pell v Board of Educ., supra, at p 230.)

It is the sole province of the Board to determine, applying the Lichtenstein legal standard of accidental injury, whether the injuries complained of here were the result of an event which was “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact”, and not for this court to say that they were. Even assuming that petitioners’ injuries resulted from sudden fortuitous mischances that were unexpected and injurious on impact, as will usually be the case whenever a person sustains a non-self-inflicted injury, it cannot reasonably be said, as a matter of law, that the injuries complained of here were the result of events which were “out of the ordinary”.

Petitioner Knight was entering his patrol car when he slipped and fell, injuring his elbow. It is difficult to imagine what could be more ordinary and routine than a patrolman entering his patrol car. In a case indistinguishable from this, a Comptroller’s determination that a janitor who slipped, fell and injured himself while performing ordinary duties did not suffer an accidental injury was not arbitrary or capricious. (Matter of Covet v New York State Employees’ Retirement System, 84 AD2d 902, mot for lv to app den 55 NY2d 606.) It would seem to follow that in this case, while reasonable minds might differ as to whether or not petitioner Knight suffered an accidental injury within the meaning of section B18-43.0 of the Administrative Code of the City of New York, it cannot be said, as a matter of law, that petitioner sustained an accidental injury. (See Matter of Meyer v Regan, 99 AD2d 582.)

Nor can that be said as to petitioner McCambridge. In that case, Detective McCambridge was simply getting up from his chair when he lost his balance and fell to the floor, injuring his knee. As in Officer Knight’s case, the petitioner could not have been performing a more common or routine task — getting out of his chair — when he injured himself. Thus, the requirement in Matter of Lichtenstein v Board of Trustees (supra) that the event leading to the injury be “out of the ordinary” could very well be found to be absent by the Board of Trustees. Nevertheless, the majority today decides not to remit the proceedings to the Board for a rehearing under the proper legal standard but, instead, substitutes its judgment for that of the Board and makes a finding that petitioner sustained an accidental injury within the meaning of the city ordinance, as a matter of law. It is especially difficult to understand how this court can reach this result so soon after reinstating the Board of Trustees’ determination that a patrolman who injured his back while leaning over a car to place a parking ticket on it had not sustained an accidental injury. (See Matter of Lichtenstein v Board of Trustees, supra.)

For all these reasons, I would reverse and remit to the Board of Trustees to reconsider the claims of the petitioners in light of our decision in Matter of Lichtenstein (supra).

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion; Judge Jasen dissents in part and votes to reverse and remit for reconsideration in accordance with his opinion.

In each case: Order reversed, with costs, petition granted and matter remitted to Supreme Court, New York County, with directions to remand to respondents for further proceedings in accordance with the opinion herein.

       In response to the assertion of the dissent that these cases should be remitted to the Board for its reconsideration of the claims for accident death benefits, it suffices to note that if the Board were to deny the claims we would be obliged to vacate its determination as erroneous. In each case we conclude as a matter of law that there was an accident.


author: Jones, J. Kaye, J.

text:
    Brian Strunk et al., Respondents, v Joseph Zoltanski, Defendant, and Sophie Zoltanski, Appellant.
    Argued June 7, 1984;
    decided July 3, 1984

      POINTS OF COUNSEL

      Thomas N. O’Hara for appellant.
    Defendant-appellant, absentee landlord, should not be held liable to plaintiff, who was a guest of a tenant in exclusive possession and control of the demised premises, for injuries sustained by plaintiff guest when he was bitten by the tenant’s dog. (Carlisle v Cassasa, 234 App Div 112; Ford v Steindon, 35 Mise 2d 339; Kelley v Hitzig, 71 Mise 2d 329, 86 Mise 2d 42; Shuffian v Garfola, 9 AD2d 910; Brice v Bauer, 108 NY 428; Muller v McKesson, 73 NY 195; Quilty v Battle, 135 NY 201; Zwinge v Love, 37 AD2d 874; Denagy v Doscher, 40 Mise 2d 643; Laguttuta v Chisolm, 65 App Div 326.)

      Albert Pacione and John J. McBride for respondents.
    A landlady has a duty to third persons for injuries caused by a vicious dog kept by a tenant where the landlady had knowledge of the dog and its vicious propensities and where the landlady had the ability to abate the hazard of the vicious dog. (Brice v Bauer, 108 NY 428; Quilty v Battle, 135 NY 201; Holzer v Rosenberg, 209 App Div 823; Lagut-tuta v Chisolm, 65 App Div 326; Palsgraf v Long Is. R.R. Co., 248 NY 339; Basso v Miller, 40 NY2d 233.)
   OPINION OF THE COURT

Jones, J.

A landlord who, with knowledge that a prospective tenant has a vicious dog which will be kept on the premises, nonetheless leases the premises to such tenant without taking reasonable measures, by pertinent provisions in the lease or otherwise, to protect persons who might be on the premises from being attacked by the dog may be held liable to a person who while thereafter on the premises is bitten by the dog.

Plaintiff here seeks to recover damages from the landlord for injuries suffered when he was bitten by a dog owned by the tenant. After the landlord had filed an answer denying liability, plaintiff and his mother and defendant Sophie Zoltanski were examined before trial. Defendants then moved for summary judgment dismissing the complaint. Supreme Court granted the motion as to Joseph Zoltanski, the husband, who had no interest in the property on which the dog bite occurred. The court denied the motion as to Sophie Zoltanski, however, concluding that there were issues of fact as to her knowledge of the presence of the dog and of its vicious nature. The Appellate Division affirmed and granted Mrs. Zoltanski leave to appeal to our court on a certified question. We conclude that there should be an affirmance.

It appears from the papers submitted on the motion for summary judgment that, about five years prior to plaintiff’s being bitten, Sophie Zoltanski inherited from her sister a six-acre parcel of land on which two residences were located. She did not live in either house but rented both. Plaintiff tendered proof in admissible form from which a jury could find that one Carl Kenyon, operator of a gas station, was occupying one of the two houses in April, 1979; that on one occasion during that month Mrs. Zoltan-ski was on the premises later leased to Kenyon where the German Shepherd dog which subsequently bit plaintiff was tied in her full view; that at the time the dog was “barking very loudly, jumping up and down, growling and acting ferocious”. Mrs. Zoltanski stated on her examination before trial that she leased the premises to Kenyon on an oral basis in May.

On May 8, 1979 plaintiff, then a boy of 14, encountered Kenyon at his gas station and the latter asked him if he wanted the dog. Plaintiff replied that he would have to check with his mother. His mother wanted to see thc dog and went with plaintiff to the Kenyon premises. She waited at the residence next door while plaintiff went to get the dog.-The boy walked toward the dog to untie it, and it was then that the dog jumped up and bit him on the mouth and later on his arm as he sought to defend himself.

The general rule is that, in conventional settings in which premises are rented by a tenant who acquires exclusive possession and control, the landlord is not liable for attacks by animals kept by the tenant on those premises where the landlord had no knowledge of the animal or its dangerous proclivities at the time of the initial letting of the premises (see Landlord’s Liability to Third Person for Injury Resulting from Attack by Dangerous or Vicious Animal Kept by Tenant, Ann., 81 ALR3d 638). The aspect peculiar to the present case is the circumstance that here the jury might find, although she herself denies it, that at the time she leased the premises to Carl Kenyon, Mrs. Zoltanski knew that her prospective tenant had a vicious German Shepherd dog which he intended to keep on the leased premises. Notwithstanding this prior knowledge, at a time when she had complete control of the premises she leased them to the tenant, permitted him to keep the dog on the premises, and, so far as appears on this motion, took no measures by pertinent provisions in the lease or otherwise to protect third persons who might be on the premises from being attacked by the dog.

The principle with respect to the liability of a landlord whose tenant comes into possession of the animal after the premises have been leased (that to establish liability it must be shown that the landlord had knowledge of the vicious propensities of the dog and had control of the premises or other capability to remove or confine the animal [id.]) likewise is not determinative here. The present is a situation in which the landlord, by leasing the premises to the owner of the dog, could be found affirmatively to have created the very risk which was reasonably foreseeable and which operated to injure plaintiff. On the basis of the evidence tendered on the motion for summary judgment, the jury could find that, having created this risk, Mrs. Zoltanski took no steps reasonably calculated to protect this plaintiff from the injuries which he suffered. We do not intend to suggest that the landlord would be subject to the same strict liability to which a tenant as harborer of the dog would be subject (see Restatement, Torts 2d, § 509), but landlords as others must exercise reasonable care not to expose third persons to an unreasonable risk of harm (cf. Uccello v Laudenslayer, 44 Cal App 3d 504).

Considerations of public policy, the appropriate frame of reference for determination of tort liability in situations newly confronted by the courts, require that a landlord who, prior to leasing the premises, has knowledge that the tenant may be expected to carry on activities on the premises in such a manner as unreasonably to expose third persons to risk of physical injury has a duty to take such precautions as lie within the control of the landlord reasonably to protect such third persons from the injuries to be foreseen if no such precautions are taken. In the present case, no evidence was tendered on the motion for summaiy judgment that this landlord, aware of the danger of the situation, took any steps to protect this plaintiff.

We recognize that in today’s world there may be tenants whose interest in keeping a watch or guard dog for protection of person or property, in consequence of the character of the neighborhood in which the leased premises are located or by virtue of the peculiar circumstances of the individual tenant, is legitimate and not necessarily to be discouraged. Nevertheless, the tenant who harbors the dog and derives protective benefit from its presence on the premises will be held strictly liable to third persons for injuries inflicted by the dog (see Restatement, Torts 2d, § 509) and may be subject to governmental regulation (e.g., Agriculture and Markets Law, §§ 119, 121). In such situations, however, it would defeat what may properly be accepted as a socially useful purpose, namely, provision of housing for persons who may legitimately keep watch or guard dogs, to announce a rule of law which would have the practical effect of discouraging all landlords (who themselves derive no benefit, or at most only an incidental benefit, from the dog’s presence) from ever leasing to any tenant who seeks to keep such a dog. The proper accommodation of these interests calls for the imposition on the landlord of a duty, at the inception of the lease when it is known that the tenant will keep a watch or guard dog, to take reasonable precautions for the protection of third persons, by provisions in the lease with respect to confinement or control of the dog or otherwise.

The circumstance, to which the dissent draws attention, that the dog here was tied up both when observed by the landlord prior to the letting of the premises and at the time of the attack on plaintiff is not conclusive on the present motion for summary judgment. Liability, if any, of the landlord will depend on whether at trial the jury finds, on evidence sufficient to warrant such a finding, that, knowing of the tenant’s ownership of a vicious dog, she took reasonable care in her arrangements with the tenant to protect third persons from injury. In the record before us there is no tender of evidence of her having taken any care. Whether the exercise of reasonable care in the circumstances would have called for a requirement that the dog be tied, or be otherwise confined so as both to restrain the dog and to exclude third persons, and also a requirement that warnings be posted, as well as whether the landlord’s failure to take any care, if such be the proof on trial, was the proximate cause of plaintiff’s injuries, both present factual issues to be resolved by the triers of the facts. We do not intend to imply that there must be a finding that this landlord is liable for the injuries suffered by this plaintiff; we do no more than conclude that there are factual questions which foreclose dismissal based on the submissions on the motion for summary judgment.

None of the cases on which the dissent would rely as holding that a landlord is not liable for damages suffered by a third person in consequence of an attack by an animal harbored by the tenant (Theobald v Grey Public Relations, 39 AD2d 902; Zwinge v Love, 37 AD2d 874; Laguttuta v Chisolm, 65 App Div 326; Denagy v Doscher, 40 Misc 2d 643; Richards v Leppard, 118 NH 666 [involving statute imposing liability on one “who owns or keeps (a) * * * dog, or has it in possession”]; and Gilbert v Christiansen, _ Minn _, 259 NW2d 896 [involving statute imposing liability on the “owner” of the dog]) involve the circumstance peculiar to this case, namely, that here the liability, if any, of the landlord would be predicated on a jury finding that, at the time of the initial leasing of the premises to the tenant, the landlord knew both of the prospective presence of the dog and of its vicious propensities.

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

Kaye, J.

(dissenting). The new duty recognized by the majority effectively subjects a landlord to absolute liability for damage caused by a tenant’s dog or other animal with “vicious propensities” of which the landlord is aware at the start of a tenancy. Because such an expansion deviates from established principles of law in this State, and because no sound reason is advanced to depart from these principles, I respectfully dissent.

While the majority states that it does not intend to subject landlords to the same strict liability as owners of animals, it is impossible to reconcile that statement with the result reached. If indeed the appellant landlord’s liability were governed by principles of ordinary negligence, the landlord having a duty “to take reasonable precautions for the protection of third persons, by provisions in the lease with respect to confinement or control of the dog or otherwise” (majority opn, p 577), there would be a reversal here. According to plaintiff, both at the time the landlord saw the dog and at the time of plaintiff’s injury, the dog had been tied up by the tenant. The landlord’s liability thus must rest not on a negligent failure to see that the dog was confined or controlled but on strict liability deriving from the simple fact that the landlord knew at the time of leasing that the tenant kept a dog with “vicious propensities” (see Muller v McKesson, 73 NY 195, 199; Restatement, Torts 2d, § 509). There is no basis for such liability.

Terming this a case of first impression in this State, the majority relies on a decision of a California intermediate appellate court, Uccello v Laudenslayer (44 Cal App 3d 504). But liability there was predicated on a California statute (California Civil Code, § 1714) as well as case law construing that statute, both of which impose liability beyond common-law limits and neither of which is applicable in this State. New York has no comparable statute, and our case law has not extended liability to landlords for injuries caused to third persons by a dangerous condition on leased premises, even where the landlord had knowledge of that condition at the time the lessee took possession. (Campbell v Holding Co., 251 NY 446, 448.) This is consistent with the general rule as set forth in section 356 of the Restatement, Second, of Torts that: “Except as stated in §§ 357-362, a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.”

Here, the tenant’s dog was a dangerous condition on the land that caused injury to plaintiff, also on the land, at a time when the tenant, and not the landlord, was in possession and control of the premises. The fact that a landlord is aware that a dangerous condition exists when a tenant first takes possession does not render the landlord liable when the tenant, who has the opportunity to protect others from the dangerous condition, fails to do so. Liability should not be imposed upon one who has no control over the tort-feasor. (Pulka v Edelman, 40 NY2d 781, 783-784.) The garage owner in Pulka v Edelman knew that its patrons tended to create a dangerous condition by driving out of the garage across the adjacent sidewalk without looking for pedestrians. To say that the landlord in the present case could have refused to let the premises to the dog’s owner and therefore owed a duty to plaintiff is akin to holding that the garage owner in Pulka owed a duty to pedestrians for which it could be liable for damage its patrons caused, because it could have refused to allow persons to park in its garage or could have taken steps to see that they did not exit the garage in a dangerous manner. We refused to so rule in Pulka, and we should not do so here. Foreseeability of injury does not create a duty.

In accordance with the rule in New York as to landlords’ liability and the recognition that a landlord has neither possession nor control of leased premises, lower courts have refused to extend liability to landlords for injuries caused by vicious dogs maintained by tenants on premises controlled by those tenants. (Laguttuta v Chisolm, 65 App Div 326.) This is so even if the landlord knew that the tenant kept a vicious dog on the premises. (Zwinge v Love, 37 AD2d 874; Denagy v Doscher, 40 Misc 2d 643.) In Siegel v 1536-46 St. John's Place Corp. (184 Misc 1053), a landlord was held liable where the injury was caused by a dog kept by the landlord’s servant, the building superintendent, and the victim was bitten in a common area of the apartment building over which the landlord retained control. But Siegel clearly has no application where the injury occurs in an area in the possession and control of the tenant, not the absentee landlord.

No different result is required because it is alleged that the landlord knew before the premises were let that the tenant would be keeping a dog with vicious tendencies. In Theobald v Grey Public Relations (39 AD2d 902), plaintiff was injured by a lion used in an advertising display during an auto show. Although the court held the lessee-advertiser liable, the lessor of the premises was absolved of liability as it did not control the lion’s actions, even though the lessor was the show’s sponsor and “permitted, nay, encouraged, the presence of the lion, with full knowledge of its intended use” (39 AD2d 902, 904 [McGivern, J., dissenting]). Courts of other States have also refused to impose such liability on landlords alleged to have knowledge of a prospective tenant’s dangerous animal. (See Richards v Leppard, 118 NH 666; and Gilbert v Christiansen, _ Minn _, 259 NW2d 896). (Although both decisions were in part concerned with liability under State statutes, the extent of liability under those statutes is similar to that under the Restatement rule and common law of New York discussed above.)

Finally, as for the majority’s reliance on public policy, it is difficult to determine just what policy is being furthered by creating this new duty. Landlords are made insurers of the conduct of dogs residing with their tenants, when they do not control the tenants or the dogs, which contravenes our notions of fairness expressed in Pulka and elsewhere. The result is equally unfair to tenants. In view of the low threshold of proof required to show that one has knowledge that a dog has vicious propensities, tenants with dogs will, by virtue of broad potential liability imposed on landlords, have difficulty obtaining suitable housing. As the Minnesota Supreme Court stated in denying recovery against a lessor in a similar situation: “Despite plaintiffs’ attempt to demonstrate that the instant facts are unique, a judgment in their favor would render it difficult, either through unavailability or prohibitive cost, for prospective tenants with dogs to find housing. Determination of policy on this matter is a question for the legislature.” (Gilbert v Christiansen, _ Minn _, _, 259 NW2d 896, 898, supra.)

The order of the Appellate Division should be reversed, and summary judgment granted dismissing the complaint.

Judges Jasen, Meyer and Simons concur with Judge Jones; Judge Kaye dissents and votes to reverse in a separate opinion in which Chief Judge Cooke and Judge Wachtler concur.

Order affirmed. Question certified answered in the affirmative.

      . Compare Restatement, Torts 2d (§ 379 A) as to the liability of a landlord in comparable circumstances to persons outside of the land:
      “Activities After Lessor Transfers Possession
      “A lessor of land is subject to liability for physical harm to persons outside of the land caused by activities of the lessee or others on the land after the lessor transfers possession if, but only if,
      “(a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and
      “(b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken.”

      . See Bovsun v Sanperi (61 NY2d 219, 228). The parties have not called our attention to any authority in case law or legal writings which addresses the question of liability of a landlord who has knowledge of a tenant’s ownership of a vicious dog prior to the initial letting, and our research has disclosed none.

      . Knowledge of “vicious propensities” has been implied from the fact that a dog was kept as a watchdog (Russo v Schieber, 11 Misc 2d 842, affd 8 AD2d 986; Lagoda v Dorr, 28 AD2d 208; Shuffian v Garfola, 9 AD2d 910; Kessler v Katz, 212 App Div 838), from the fact that the dog was a German Shepherd, a breed said to have inherited vicious tendencies from “wolf ancestors” (Kelley v Hitzig, 71 Misc 2d 329; Ford v Steindon, 36 Misc 2d 339), and from the viciousness of the attack itself (Carlisle v Cassasa, 234 App Div 112). (See 3 NY Jur 2d, Animals, § 43.)

      . None of the exceptions to this rule, set forth in sections 357-362 of the Restatement, are applicable. Section 356, which concerns a lessor’s liability to persons on the land by dangerous conditions, and not section 379 A (cited by the majority), dealing with injuries caused by nuisances on the land to persons outside the land, is the applicable rule here.

      . This is in accord the Restatement rule, which extends liability to owners and harborers of dangerous animals, but not to landowners. (Restatement, Torts 2d, §§ 509, 514.) “[P]ossession of the land on which the animal is kept, even when coupled with permission given to a third person to keep it, is not enough to make the possessor of the land liable as a harborer of the animal.” (Restatement, Torts 2d, § 514, Comment a.)

      . Although it was stated that the lessor in Theobald had no “specific knowledge of [the lion’s] carnivorous tendencies” (39 AD2d 902, 904), such knowledge would not be a requirement for liability. While the owner of a domestic animal, such as a dog, is not liable for injury caused by the dog unless he knows or should have known of the particular dog’s vicious tendencies (Muller v McKesson, 73 NY 195; Restatement, Torts 2d, § 509), an owner of a wild animal, such as a lion (see Restatement, Torts 2d, § 506, subd [1]) is liable for damage that results from dangerous propensities that are characteristic of the class of wild animals of which his animal is a part, whether or not he is aware of any specific vicious tendencies of the particular animal. (Restatement, Torts 2d, § 507.)


author: Jasen, J.

text:
    LaRossa, Axenfeld & Mitchell et al., Respondents, v Robert Abrams, as Attorney-General of the State of New York, Appellant.
    Argued June 6, 1984;
    decided July 3, 1984

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Claude Trahan, Conley E. Brian, Jr., and Richard Gabriele of counsel), appellant pro se.

    I. The provision of section 343 of the General Business Law authorizing a criminal prosecution for noncompliance with a subpoena without good or reasonable cause is constitutionally valid, even if applied to a person who has commenced a motion to quash or modify. CMatter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621; Columbia Gas v New York State Elec. & Gas Corp., 28 NY2d 117; People v Foster, 236 NY 610; People v D’Amato, 12 AD2d 439; People v Forsyth, 109 Mise 2d 234, 87 AD2d 571, 56 NY2d 810; People v Spiak, 11 Mise 2d 1043; People v Rehn, 10 Mise 2d 482; Dunham v Ottinger, 243 NY 423; People v Leone, 44 NY2d 315; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227.) II. No appropriate declaratory relief can be provided on the fifth cause of action in the amended complaint and that claim should therefore be dismissed. (Board of Educ. v Nyquist, 50 NY2d 889; Anonymous v Axelrod, 92 AD2d 789; Kelly’s Rental v City of New York, 44 NY2d 700; Snap “N” Pops v Dillon, 66 AD2d 219; County of Orange v City of Newburgh, 30 Mise 2d 898.)

      Iris S. Richman and Richard L. Gold for respondents.
    I. The provision of section 343 of the General Business Law authorizing a criminal prosecution for noncompliance with a nonjudicial subpoena is statutorily and constitutionally infirm where judicial proceedings have been instituted to quash or modify the subpoena pursuant to CPLR 2304. (Virag v Hynes, 54 NY2d 437; Meyerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; Dellwood Foods v Abrams, 109 Mise 2d 263; Matter of Friedman v Hi-Li Manor Home, 42 NY2d 408; Anonymous v Axelrod, 92 AD2d 789; Matter of Santangelo v People, 38 NY2d 536; Matter of Ryan v Temporary State Comm., 33 Mise 2d 1094, 12 NY2d 708; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227; Matter of Hynes v Moskowitz, 44 NY2d 383; Ex parte Young, 209 US 123.) II. The summary judgment granted below on the fifth cause of action in the amended complaint should be affirmed, or, in the alternative, amended, to grant the declaratory relief sought.
   OPINION OF THE COURT

Jasen, J.

On this direct appeal by defendant Attorney-General, we are asked to decide whether the Attorney-General may commence a criminal prosecution pursuant to section 343 of the General Business Law against persons who refuse to comply with subpoenas issued under that statute while a motion to quash or modify said subpoenas is pending.

In connection with an antitrust investigation of the ready-mix concrete industry in New York City, the Attorney-General served subpoenas on plaintiffs pursuant to section 343 of the General Business Law. The subpoenas were returnable on various dates between November 24 and December 7, 1982. On November 22, 1982, plaintiffs moved pursuant to CPLR 2304 to quash or modify the subpoenas and two days later requested preliminary in-junctive relief. By order filed December 3, 1982, Special Term enjoined the Attorney-General from enforcing either the subpoenas served on plaintiffs or sections 343 and 345 of the General Business Law pending a hearing of the parties’ other motions. The Attorney-General appealed Special Term’s grant of injunctive relief to the Appellate Division and thereby obtained an automatic stay of Special Term’s order pursuant to CPLR 5519. Plaintiffs never moved to vacate or modify that stay.

In the interim, plaintiffs commenced the instant action by serving a summons and complaint and later, on December 16, 1982, served an amended complaint adding a fifth cause of action which, when read broadly, seeks a declaration that section 343 of the General Business Law, insofar as it allows the Attorney-General to commence a criminal prosecution against plaintiffs prior to determination of plaintiffs’ pending motion to quash, is violative of plaintiffs’ due process rights.

The Attorney-General answered the amended complaint and shortly thereafter cross-moved for summary judgment. On January 14, 1983, plaintiffs made an application for and obtained a second grant of temporary injunctive relief. The Attorney-General appealed to the Appellate Division from this order and once again received an automatic stay by operation of CPLR 5519. The plaintiffs again made no attempt to vacate or modify the stay. Both of Special Term’s orders granting temporary injunctive relief were subsequently affirmed by the Appellate Division on June 28, 1983. (95 AD2d 988.)

In an opinion dated June 9, 1983, Special Term, inter alia, granted summary judgment in favor of plaintiffs with respect to their fifth cause of action, declaring, in the fourth decretal paragraph of the final judgment, section 343 of the General Business Law “to be unconstitutional, null and void insofar as it applies to any person who has commenced proceedings pursuant to CPLR Section 2304 seeking an order quashing or modifying a subpoena issued by the Attorney-General pursuant to General Business Law Section 343 before a court of competent jurisdiction prior to the date of commencement of a prosecution of such a person pursuant to such provision for non-compliance with such subpoena on the grounds of denial of such a person’s rights guaranteed by the Fourth and Fourteenth Amendments of the Constitution of the United States.”

The Attorney-General has taken a direct appeal from Special Term’s final judgment to this court pursuant to CPLR 5601 (subd [b], par 2). As a result of the procedural posture in which this appeal comes before us, the constitutional question raised by Special Term’s declaration in the fourth paragraph of its judgment is the only question which we may consider and determine. (NY Const, art VI, § 3, subd b, par [2].)

The question presented, when distilled to its simplest form, is whether in terms of due process it is fundamentally unfair to allow the Attorney-General to prosecute a person under section 343 of the General Business Law for refusing to comply with a subpoena where that person has previously made a motion to quash the subpoena which is pending at the time the prosecution is commenced.

We begin our analysis by recognizing that due process is a flexible constitutional concept calling for such procedural protections as a particular situation may demand. (Morrissey v Brewer, 408 US 471, 481; Health Ins. Assn. v Harnett, 44 NY2d 302, 309.) It is neither “a mechanical formula or a rigid set of rules” (Dobkin v Chapman, 21 NY2d 490, 502; see Matter of Coates, 9 NY2d 242, 249), nor a fixed concept which can be applied without regard to the individual circumstances of each case (Cafeteria Workers v McElroy, 367 US 886, 895; see, also, Matter of Sanford v Rockefeller, 35 NY2d 547, 563, app dsmd sub nom. Collins v Carey, 421 US 973). Accordingly, it has long been recognized that consideration of issues of procedural due process requires an evaluation of the interests of the parties to the dispute, the adequacy of the contested procedures to protect those interests and the government’s stake in the outcome. (Mathews v Eldridge, 424 US 319, 334-335; Dobkin v Chapman, 21 NY2d 490, 502, supra.) As the Supreme Court in Mathews v Eldridge (supra, at p 335) posited, “identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” In applying this test to the appeal before us, we hold that there is no constitutional bar to the Attorney-General commencing a criminal proceeding pursuant to section 343 of the General Business Law against an individual who refuses to comply with a subpoena even though he had previously moved to quash that subpoena under CPLR 2304.

The plaintiffs’ private interests involved in this case are clearly substantial ones; they face civil and criminal penalties should they be convicted of wrongfully refusing to obey the command of the subject subpoenas. (General Business Law, § 343.) It is equally clear, however, that the government’s interest in this matter is also substantial. The Attorney-General has been given broad investigatory responsibilities to carry out his vital role to protect the public safety and welfare (Matter of Hynes v Moskowitz, 44 NY2d 383, 396) and the government’s interest in maintaining the Attorney-General’s investigatory powers free from unnecessary hindrances takes on added importance in a case such as this where he is acting in furtherance of this State’s strong public policy in favor of promoting and protecting free competition. (General Business Law, § 340, subd 1; Columbia Gas v New York State Elec. & Gas Corp., 28 NY2d 117, 127.) Indeed, New York’s interest in the efficient enforcement of its antitrust laws has been described as representing “a public policy of the first magnitude”. (Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621, 625.) Thus, on balance, it is readily apparent that both plaintiffs and the Attorney-General have important interests at stake here which are worthy of protection.

The final factor which must be balanced in resolving plaintiffs’ due process claim — the adequacy of the procedural safeguards to protect plaintiffs from an erroneous imposition of civil or criminal penalties — persuades us of the reasonableness of the Attorney-General’s action in this case. According to the express provisions of section 343 of the General Business Law, plaintiffs cannot be held criminally or civilly liable for refusing to comply with the Attorney-General’s subpoenas unless they have done so “without good cause”. As a result, in response to the Attorney-General’s decision to prosecute plaintiffs for their failure to comply, they will have a full and fair opportunity during the criminal proceeding to assert a “good cause” defense. Thus, if their refusal to obey the command of the subpoenas was done for good cause, no liability will attach. In our view, this opportunity is a significant safeguard against arbitrary governmental action and surely precludes the right to challenge the issuance of the subpoena. However, although the opportunity to challenge the propriety of subpoenas in a criminal proceeding was adequate in and of itself to constitute a procedural safeguard adequate to insulate an individual from an erroneous deprivation of liberty or property, this was not the only vehicle available to plaintiffs to so protect themselves.

Plaintiffs also had the opportunity to move pursuant to CPLR 2304 to modify or quash the subpoenas and to obtain, upon a showing of probable merit and irreparable harm, a preliminary order staying the accrual of penalties for noncompliance until the motion to quash or modify had been decided on the merits. Plaintiffs could also have requested, in conjunction with their motions to quash, that the return date of the subpoenas be extended until the motions were decided. While plaintiffs did move under CPLR 2304 and successfully requested preliminary injunc-tive relief, the orders granting said relief were automatically stayed pursuant to CPLR 5519 by virtue of the Attorney-General’s appeal to the Appellate Division and at no time did plaintiffs seek to vacate the statutory automatic stays. Thus, although an additional opportunity to prevent the accrual of penalties was available to plaintiffs, they chose not to avail themselves of it and as a result cannot now be heard to complain that they were not afforded a reasonable opportunity to protect themselves from civil or criminal liability.

In a somewhat analogous case, the United States Supreme Court held that where a party failed to either seek judicial review of Federal Trade Commission orders prior to commencement of a civil forfeiture action or to seek a stay once litigation had begun, due process considerations did not afford the individual a remedy from the forfeiture. (St. Regis Paper Co. v United States, 368 US 208, 225-226.) The court noted that it could not say that the party “had ‘no chance’ to prevent the running of the forfeiture pending a test of the validity of the orders.” (Id., at p 227.) In another case, Reisman v Caplin (375 US 440), the court held that there was no constitutional invalidity to an Internal Revenue Service procedure where the petitioners were served with summonses directing the production of business records before a hearing officer. There, as here, the individuals were allowed to challenge the summonses in a proceeding where no sanctions could be imposed for noncompliance and were also afforded a second opportunity to challenge the summonses in any resulting enforcement action. It was further noted that the opportunity obtain a stay while testing the summonses would insulate the witnesses from liability. {Id., at p 449.) The adequacy of available procedures to test the validity of the government’s action in both St. Regis Paper Co. v United States and Reisman v Caplin persuaded the court that the parties’ due process rights had not been abridged.

After balancing the competing interests of plaintiffs and the Attorney-General and the degree of protection which existing safeguards provide for plaintiffs in light of the particular facts and circumstances of this case, we hold that the Attorney-General was entitled, consistent with due process, to commence a criminal prosecution against plaintiffs pursuant to section 343 of the General Business Law for refusing to comply with the issued subpoenas even though a motion to quash the subpoenas was pending. To hold otherwise would enable individuals lawfully subpoenaed to unnecessarily delay important ongoing criminal investigations simply by filing a motion to quash, regardless how frivolous the motion may be. Due process does not require such a result.

Accordingly, the judgment of Special Term insofar as appealed from should be reversed, with costs, and section 343 of the General Business Law should be declared constitutional insofar as it applies to persons who commenced a CPLR 2304 proceeding to quash or modify a subpoena prior to commencement of a criminal prosecution.

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

Judgment, insofar as appealed from, reversed, etc.

      . Both the original and amended complaints challenged (1) the constitutionality of section 343 of the General Business Law insofar as it imposed a “silence directive” on witnesses examined by the Attorney-General and (2) the constitutionality of the immunity provisions of section 345 of the General Business Law. The court below upheld the constitutionality of section 345 of the General Business Law and plaintiffs did not appeal from that portion of the final judgment. The court below also declared the “silence directive” of section 343 of the General Business Law to be unconstitutional and enjoined its enforcement. The Attorney-General initially appealed from the portions of the final judgment concerning the “silence directive”, as well as from the portions of the final judgment relating to the fifth cause of action. However, by stipulation dated January 25, 1984, and filed with this court on February 2,1984, the portion of the appeal relating to the “silence directive” was withdrawn.

      . The Attorney-General states in his brief, under the caption “statement concerning jurisdiction”, that the aforesaid constitutional question is “the only question raised by the appeal”. Thus, we do not read the second point in his brief as raising a nonconstitu-tional question which would preclude this court from considering the appeal. (See Matter of Merced v Fisher, 38 NY2d 557; Matter of Coates, 5 NY2d 917.)

      . We note that we are not presented with and have no occasion to address the question of what the Attorney-General’s enforcement powers might be after there has been an initial judicial determination ordering a subpoena quashed.


text:
    Dennis & Jimmy’s Food Corp., Appellant, v Milton Company, Respondent.
    Decided March 30, 1984

      APPEARANCES OF COUNSEL

      Alan J. Sanders for appellant.

      Benjamin Housman 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 (99 AD2d 477), except so much thereof as deals with waiver, an issue not before us.

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


text:
    Wometco Home Theatre, Inc., Appellant, v Lumbermens Mutual Casualty Company, Respondent.
    Decided March 30, 1984

      APPEARANCES OF COUNSEL

      Malcolm I. Lewin for appellant.

      Frederic R. Mindlin 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 (97 AD2d 715).

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


text:
    Michael Collins, Individually and as President of the Transit Supervisors Organization, et al., Respondents, v Manhattan & Bronx Surface Transit Operating Authority (MABSTOA) et al., Appellants.
    Argued February 13, 1984;
    decided March 30, 1984
   Reargument ordered and case set down for argument or submission on May 9, 1984.


text:
    Manuel Martinez, Respondent, v Beck & Sons, Inc., et al., Appellants.
    Submitted March 26, 1984;
    decided March 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]).


text:
    Milton E. Harrington, Jr., Respondent, v State of New York Office of Court Administration, Respondent, and Lloyd W. Merritt, as Town Justice of the Town of Kirkwood, Appellant, et al., Defendant.
    Argued February 23, 1984;
    decided April 3, 1984

      APPEARANCES OF COUNSEL

      Herbert A. Kline, Town Attorney (.Ferris D. Lebous of counsel), for appellant.

      Stanley B. Reiter for Milton E. Harrington, Jr., respondent.

      Marc C. Bloustein, Michael Colodner and Christine Ko-pec for New York Office of Court Administration, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court (94 AD2d 863). Whatever may have been the pre-enactment deliberations as evidenced in the draft bill, the 1977 amendment as finally adopted does not contain sufficient manifestation of a legislative intent to warrant repudiation of the traditional and long-standing practice that the copy of the trial transcript which is required to be filed with the trial court shall be paid for out of public funds. If, indeed, this was the unarticulated intention, amendment of the statute can make that clear.

Jasen, J.

(dissenting). The majority holds that when a nonindigent defendant takes an appeal pursuant to CPL 450.10, the copy of the trial transcript which is required to be filed with the trial court must be paid for out of public funds. Because I do not believe CPL 460.70 (subd 1) was intended to require such a result, I respectfully dissent.

Prior to 1977, CPL 460.70 (subd 1) required the public to bear the expense of preparing and filing transcripts where a defendant filed a notice of appeal regardless of whether the defendant was indigent or not. In 1977, however, the Legislature amended the statute to, among other things, “save taxpayer money” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 460.70, p 59). Accordingly, in adopting the current statute, the Legislature conspicuously omitted the former broad provision requiring that the costs of preparing transcripts for all persons be paid out of public funds and inserted in its place the following language: “The expense of transcripts prepared for poor persons under this section shall be a state charge”. (Emphasis supplied.) It should be abundantly clear, therefore, that the 1977 amendment was intended to place the costs of preparing transcripts upon the individual who, by prosecuting an appeal, made it necessary for those transcripts to be prepared and who is able to afford the cost thereof. Far from being “an unfortunate oversight”, as the Appellate Division reasoned (94 AD2d 863, 865), the omission of a provision permitting payment out of the public coffers of a nonindigent’s costs of preparing the transcript required to be filed was specifically designed to reduce unnecessary expenditures of public funds. (See Bellacosa, Practice Commentary, op. cit.) This court should not amend the statute by inserting words into it that the Legislature did not see fit to include. (Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516, 517; McKinney’s Cons Laws of NY, Book 1, Statutes, § 363, p 525.)

That the 1977 amendment was intended to provide for public assumption of costs only where the defendant is indigent is made clear by Assemblyman Siegel, the sponsor of the legislation, who wrote in his bill memorandum that “[t]his bill insures the preparation of transcripts at government expense only when the defendant manifests an actual intent to appeal and when the defendant is unable to afford transcripts.” (Emphasis supplied.) This piece of legislative history is entitled to great weight. (Civil Serv. Employees Assn. v County of Oneida, 78 AD2d 1004.)

Further support for this view is found in a memorandum of the Office of Court Administration submitted in support of the 1977 amendment, which states, in part, that “[b]y the courts’ not ordering the minutes until a poor person application is made, the public is also spared the expense of paying for minutes in cases where the defense is able to afford them.” (McKinney’s Session Laws of NY, 1977, p 2631 [emphasis supplied].) Additionally, the State Comptroller has interpreted the statute to mean that “where the defendant takes an appeal and is not indigent, the cost of transcripts must be borne by the defendant.” (1981 Opns St Comp No. 81-23.) As agencies charged with implementing the statute, these opinions should not be lightly disregarded. (Matter of Howard v Wyman, 28 NY2d 434.)

In view of the conspicuous omission from the present statute, as compared with the previous statute, of a provision authorizing public payment for transcripts required to be filed solely as a result of a nonindigent defendant’s decision to prosecute an appeal and the clear legislative history of the law indicating an intent to provide public payment of such costs only for indigent persons, I would reverse the order of the Appellate Division and dismiss plaintiff’s complaint.

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

Order affirmed, with costs, in a memorandum.

       The statute provided, in pertinent part, as follows: “When an appeal is taken by a defendant pursuant to section 450.10, the criminal court in which the judgment, sentence or order being appealed was entered or imposed must within two days after the filing of the notice of appeal therein, direct the stenographer to make and to file with the court, within twenty days, two transcripts of the stenographic minutes of the proceedings constituting the record on appeal. The expense of such transcripts is a county charge or city charge, as the case may be, payable to the stenographer out of the court fund, or out of the juror’s fund or out of any other available fund, upon the certificate of the criminal court. The appellate court may where such is necessary for perfection of the appeal, order that the criminal court furnish one of such transcripts to the defendant or his counsel.” (Emphasis supplied.)


text:
    Michael Perry, Jr., Appellant, v Inter-County Savings Bank, Respondent.
    Decided April 3, 1984

      APPEARANCES OF COUNSEL

      Benjamin Zelermeyer for appellant.

      Robert E. Di Nardo 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 (97 AD2d 655).

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


text:
    Barnett Guthartz, Appellant, v City of New York et al., Respondents.
    Argued March 19, 1984;
    decided April 3, 1984
    APPEARANCES OF COUNSEL

      J. Irwin Shapiro and Brian Michael Seltzer for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Larry A. Sonnenshein and Francis F. Caputo of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed upon the ground that the “judgment” appealed from does not finally determine the action within the meaning of the Constitution. Although the causes of action contained in the complaint have been finally disposed of, the record shows that a counterclaim is still pending and that it is sufficiently related to the complaint to preclude application of the doctrine of implied severance (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).

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

Appeal dismissed, without costs, in a memorandum.


text:
    Joseph Snide et al., Appellants, v William A. Larrow, Respondent, et al., Defendant.
    Decided April 3, 1984

      APPEARANCES OF COUNSEL

      James W. Cooper and Ronald L. Newell for appellants.

      John L. Bell for respondent.
   OPINION OF THE COURT

Memorandum.

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

Both sides in this ejectment action having moved for summary judgment, the narrow question for determination is whether defendants were in default in the payment of the monthly installments due under the purchase contract at the time the motion was made.

The contract called for payments of $200 per month, without interest, but permitted defendants to make payments in excess of that sum. Defendants in fact paid $300 per month for a number of months but later failed to make any payments. The total sum paid by defendants up to the time the motion was made was, however, $100 in excess of the amount that should have been paid had they made regular payments of $200 as the contract required. Whether defendants were in default, therefore, turns on how their excess payments were to be credited.

The general rule is that the debtor may direct the application of his payments, but if he fails to do so, then the creditor is permitted to apply the payments as he sees fit (Davison v Klaess, 280 NY 252, 261; Shahmoon Inds. v Peerless Ins. Co., 16 AD2d 716, 717). The presumption, however, is that a payment is to be applied to that portion of the debt first becoming due (see Farm Supplies Corp. v Goldstein, 240 App Div 330, 332). Here, although plaintiffs moved for summary judgment, they did not reply to or dispute the allegations in defendant William A. Larrow’s papers that the excess payments made were to be credited against installments later due but unpaid rather than against the last installments due under the contract and the receipts issued by plaintiffs bear out that construction. Plaintiffs not having overcome the presumption, defendants and not plaintiffs are entitled to summary judgment.

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

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


text:
    The People of the State of New York, Appellant, v Virginia Ramirez and Godofredo Ramirez, Respondents.
    Argued February 16, 1984;
    decided April 3, 1984

      APPEARANCES OF COUNSEL

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Michael P. Marmor of counsel), for appellant.

      James M. Dungan and Gerald T. Barth for respondents.

      Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Orders affirmed for the reasons stated in the memorandum at the Appellate Division (94 AD2d 965).

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


text:
    In the Matter of Stanley Werb et al., Appellants, v Arthur V. De Garmo, as Clay Town Assessor, et al., Respondents.
    Decided April 3, 1984

      APPEARANCES OF COUNSEL

      William L. Allen, Jr., for appellants.

      William F. Corrigan, Jr., and Richard D. Ryan for respondents.
   OPINION OF THE COURT

Memorandum.

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

Appellants, owners of a 28-building apartment complex, commenced this tax certiorari proceeding to review the assessments on their property for the tax years 1977-1978, 1978-1979 and 1979-1980. The court relied primarily on the income capitalization method for determining the value of the property. Deducted from annual gross income were amounts representing items of expense, including maintenance. Part of the maintenance expense was a reserve for replacing the items of personalty, such as carpeting and appliances. After determining the capitalized value of the property, the trial court further deducted the depreciated value of the personal property. The Appellate Division modified the judgment, finding that by deducting maintenance expense from annual gross income, the value of the personalty was already excluded from the calculation of fair market value, so that the subsequent subtraction of depreciated value of the personalty resulted in a double deduction. On remittal, the trial court recalculated the assessments in accordance with the findings of the Appellate Division, now before us for review.

No one questions that the value of appellants’ personalty-should be excluded from the ad valorem tax in issue (Real Property Tax Law, § 300). The only issue raised is whether this result was accomplished upon deduction of the maintenance reserve. The findings of fact made by the Appellate Division as to the value of appellants’ real property more closely comport with the weight of the evidence than the findings of the trial court, and we therefore affirm. (See Matter of Marine Midland Props. Corp. v Srogi, 60 NY2d 885, 887.) While neither calculation may perfectly achieve the objective, by permitting deduction of both the maintenance reserve and the depreciated value, appellants would in effect be credited with more than the value of the personalty.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.


text:
    Carvel Corporation, Plaintiff, v Irving M. Burstein et al., Defendants. Irving M. Burstein et al., Appellants, v Carvel Corporation et al., Defendants, and Thomas Carvel, Respondent.
    Decided April 3, 1984

      APPEARANCES OF COUNSEL

      David J. Goldstein for appellants.

      Alfred E. Donnellan 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 reasons stated in the memorandum at the Appellate Division (99 AD2d 935).

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


text:
    In the Matter of Robert A. Hanington, Appellant, et al., Petitioners, v Frank Coveney et al., Constituting the Board of Elections of the County of Suffolk, et al., Respondents.
    Decided April 3, 1984

      APPEARANCES OF COUNSEL

      Samuel Rutter for appellant.

      Patrick Kevin Brosnahan, Jr., for Stephen L. Braslow and another, respondents.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

This is a summary proceeding pursuant to section 16-102 of the Election Law to validate the designating petition of the Sewer Tax Opposition Party (STOP) naming petitioner as its candidate for Superintendent of Highways of the Town of Babylon for the general election held on November 8, 1983. Special Term denied respondent’s motion to dismiss the proceeding, annulled the determination of respondent Suffolk County Board of Elections that the petition was invalid, and directed that petitioner’s name be placed on the November 8 ballot under the STOP line. On October 27, 1983, the Appellate Division, in the order appealed from, reversed the order of Special Term, dismissed petitioner’s proceeding on the ground that an indispensable party to the proceeding (a co-objector to petitioner’s designating petition) had not been named or served, and ordered that petitioner’s name be taken off the November ballot.

After the entry of the Appellate Division’s order and before petitioner perfected his appeal to this court, the general election was held and another candidate, certified as the winner of the election, assumed the office of Superintendent of Highways. In view of those events, occurring subsequent to the determination of the court below, this appeal should be dismissed as academic. (Sedita v Board of Educ., 43 NY2d 827, 828.) This court has no jurisdiction in a summary proceeding such as this under section 16-102 of the Election Law to remove the successful candidate from office or order a new general election. Such relief can be granted, if at all, only in a plenary action in the nature of quo warranto. (Matter of Corrigan v Board of Elections, 38 AD2d 825, 826, affd 30 NY2d 603.)

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:
    Elene de Saint Phalle, Appellant, v Thibaut de Saint Phalle, Respondent. (And Two Additional Actions.)
    Submitted March 12, 1984;
    decided April 3, 1984
   Motion for a stay or for declaration that statutory stay is in effect denied, with $20 costs payable by plaintiff to defendants.