text:
    The People of the State of New York ex rel. William Dutcher, Appellant, v New York State Board of Parole et al., Respondents.
    Submitted October 22, 1979;
    decided November 15, 1979
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the Appellate Division order. Because relator is no longer imprisoned on the charge underlying the contested parole revocation hearing, his liberty is not restrained on that charge to such a degree as to entitle him to the extraordinary relief of habeas corpus (see People ex rel. Wilder v Markley, 26 NY2d 648).


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Harold P. Rubin, Appellant, v La Verne E. Campbell, as Regional Health Director of the New York State Department of Health, et al., Respondents.
    Argued October 8, 1979;
    decided November 20, 1979

      APPEARANCES OF COUNSEL

      Herbert Rubin and Howard L. Wexler for appellant.

      Robert Abrams, Attorney-General (Maurice K. Peaslee and Shirley Adelson Siegel of counsel), for La Verne E. Campbell, respondent.

      Thaddeus J. Szymanski, County Attorney (Robert J. Pierce of counsel), for Erie County Department of Health, respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be modified, with costs to respondents, by striking and deleting that part of the decretal paragraph which declared the proceeding to be moot and, except as so modified, affirmed.

Petitioner, a licensed podiatrist and a provider of services under the Medicaid program, was suspended from participation in that program for two years after a hearing held by respondent, the Regional Health Director for the Department of Health. Although petitioner’s period of suspension is now over, podiatrists are once again eligible to participate as Medicaid providers due to an amendment of section 365-a of the Social Services Law (L 1979, ch 444, eff April 1, 1979). The determination of respondent, that petitioner exercised questionable medical judgment, engaged in improper and duplicative billing practices and failed to maintain professional standards in the documentation of patient treatment, should be subject to judicial review if only to safeguard against the possibility of unwarranted collateral effects that would redound to the detriment of petitioner as a result of those findings. Thus the proceeding is not moot.

Petitioner maintains that the proceedings taken against him were void on the ground that Item 35 of the New York State Medical Handbook, comprising regulations prepared by the Department of Health applicable to the Medicaid program, had not been properly filed with the Secretary of State (NY Const, art IV, §8; see People v Cull, 10 NY2d 123). However, even assuming that these proceedings were instituted pursuant to Item 35, the failure to file did not divest respondents of their inherent power to police the quality and value of services rendered by physicians participating in the Medicaid program and to take remedial measures against those whose services are found to be inadequate (see Lang v Berger, 427 F Supp 204, 213-214, n 37).

We have examined petitioner’s remaining contentions and conclude they are without merit.

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

Judgment modified, with costs to respondents, in accordance with the memorandum herein and, as so modified, affirmed.


author: Meyer, J.

text:
    Mary P. Koehler et al., Appellants, v Peter Schwartz, Respondent.
    Argued October 9, 1979;
    decided November 20, 1979

      APPEARANCES OF COUNSEL

      Joseph Kelner and Monica Risi Merrilli for appellants.

      Arthur N. Seiff and Anthony L. Schiavetti for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant, an obstetrician and gynecologist, unsuccessfully attempted to abort the pregnancy of plaintiff Mary Koehler. Claiming extensive emotional and psychic injuries, plaintiff commenced this malpractice action. At trial, the case was submitted to the jury on the theory that defendant, departing from his normal practice, had failed to use a sharp curette following application of a suction device. Alternatively, the jury was permitted to premise liability upon defendant’s delay in ascertaining and notifying plaintiff that the pregnancy had not been terminated. Experts for the defense testified that use of either the suction method or the sharp curette would be in accord with customary practice; prevailing practice did not require that both procedures be performed. A verdict was awarded to plaintiffs, and the Appellate Division reversed.

It may well be that defendant, as indicated in his testimony, routinely followed procedures more demanding than those dictated by customary medical practice, and that a failure to adhere to these added precautionary measures in the circumstances of this case would amount to negligence (see, e.g., Toth v Community Hosp. at Glen Cove, 22 NY2d 255, 262-263). But there is no evidence establishing that this omission would in any way cause or enhance the possibility of an unsuccessful abortion. Whether and to what extent use of a sharp curette might contribute to the success of the procedure is not a matter of common knowledge which a lay jury could decide in the absence of expert testimony (see, e.g., 530 East 89 Corp. v Unger, 43 NY2d 776, 777-778). The proof elicited from defendant himself indicated that he used the curette to minimize postoperative complications. Neither he nor any other expert testified that the curette would facilitate the surgical procedure or increase the likelihood of success. Simply put, then, plaintiffs did not demonstrate that the failure to use a sharp curette was a cause-in-fact of the unsuccessful abortion (see, e.g., Prosser, Torts [4th ed], § 41).

The testimony of Dr. Krumholz does not alter this conclusion. As the medical evidence reveals, there is a distinction between an incomplete abortion — where the procedure is generally successful but vestiges of the fetus remain in the uterus —and an unsuccessful abortion. Dr. Krumholz’ testimony was concerned with the incomplete operation. In such a case, use of a sharp curette might help to remove any remnants of fetal tissue which, even if not surgically removed, would normally be expelled by the body in due course. Nowhere did the witness even intimate that the curette could render successful an otherwise unsuccessful abortion. And plaintiff did not claim that the procedure had been incomplete; her theory was that the operation had been a total failure.

Finally, defendant’s delay in notifying plaintiff of the failure of the abortion, while perhaps exacerbating any damage which flowed from the nonsuccess of the procedure, was not shown to be an independent cause of any of plaintiff’s injuries or damages, including those of an emotional or psychic nature. In short, plaintiff simply has not established that her injuries resulted from anything other than the failure of the abortion, regardless of when she received notification. A contrary conclusion on this record, especially with regard to whether earlier notification would have prompted plaintiff to consent to a second abortion, could only be based on sheer speculation. Indeed, plaintiff testified that she could not have endured a second abortion, without any indication that prompt notification would have affected her decision.

Meyer, J.

(dissenting). I dissent for the reasons stated in the dissenting opinion of Mr. Justice Joseph A. Suozzi at the Appellate Division, to which in response to the majority’s memorandum I add the following observations.

As to the first cause of action, there is in the record sufficient evidence to take to the jury the issue whether defendant’s failure to follow suction with use of a sharp curette caused or enhanced the possibility of an unsuccessful abortion. That evidence was presented through the testimony of Dr. Burton Krumholz, called as a witness for. defendant, that the purpose of using a sharp curette after a suction curettage was "[t]o be assured that the pregnancy termination is not incomplete”; in defendant’s affirmative response to the question "would you say that proper practice would well justify making sure by doing another step, namely, using a curette?”; in his affirmative responses to the question "Doctor, when you say scrape, is it intended that the sharp end, by a scraping or cutting process, will loosen and break off any of the contents of the wall of the uterus?” and, following exhibition of the sharp curette to the jury, to the question "So that, Doctor, whatever didn’t get evacuated by the suction device you would expect would be loosened and scraped out in the manner that you demonstrated with the curette; is that right?”; and, finally, in the testimony of Dr. Stanley Birnbaum, called as an expert by defendant, that the purpose of scraping is "to feel it so that you can use your suction again if there’s a significant amount”. The majority’s distinction between an incomplete and an unsuccessful abortion does not militate against my conclusion; the jury could have found based on the testimony of Drs. Krumholz and Birnbaum that defendant never used the sharp curette for if he had he would necessarily have discovered his lack of success.

As to the cause of action for emotional and psychic injury, the majority’s position is that defendant’s delay in notifying plaintiff of his failure was not an independent cause of such injury, though it may have exacerbated the damage arising from that failure. So to hold is to ignore the fact that had plaintiff been notified promptly there would, the jury could have found, have been no emotional or psychic injury arising from the failure because it would then have been possible since she was then in her first trimester, to repeat the suction curettage procedure successfully. By delaying notice for six weeks, notwithstanding his admitted knowledge from the pathology report of the absence of villi with all that that portended, defendant confronted plaintiff with the much greater risk, and much more difficult decision in view of her religious principles and cancerous physical condition, of a saline abortion. Of these conditions and principles defendant was fully aware, and his witness, Dr. Krumholz, conceded that fears such as plaintiff’s should have been taken into consideration by defendant, even though not a psychiatrist.

As a wrongdoer, defendant is chargeable with all the suffering his act or failure to act caused, or substantially, contributed to causing, to plaintiff, even though plaintiff’s pre-existing mental and physical condition made her more susceptible to such injuries (Owen v Rochester-Penfíeld Bus Co., 304 NY 457; Dunham v Village of Canisteo, 303 NY 498, 505). Plaintiff’s position is similar to that of the decedent, Dr. Lewis, in Fuller v Preis (35 NY2d 425). The jury found that Dr. Lewis’ suicide was caused by brain damage incurred in an automobile accident. To defendant’s argument that Lewis’ suicide resulted from other causes, this court responded that the issue was for the jury, saying (at p 433): "Dr. Lewis’ wife was paralyzed in the upper part of her body due to poliomyelitis and was suffering nervous exhaustion when he committed suicide. His mother had recently been diagnosed for cancer. It was for the jury to consider whether these dire facts, along with the other evidence, rendered remote or displaced his mental derangement as a substantial cause of the suicide. Put another way, the issue for the jury was whether the defendants’ negligence substantially contributed to Dr. Lewis’ death (Dunham v. Village of Canisteo, 303 N. Y. 498, 505). They did not have to find that it was the only cause * * * In finding that the brain damage was the proximate cause of the suicide, the jury reached a conclusion both legally and medically supportable”. As in that case, defendant here would be entitled to put before the jury testimony intended to exclude plaintiff’s pre-existing condition from the damage she suffered, but he cannot escape liability altogether (see, also, McCahill v New York Transp. Co., 201 NY 221, 224).

There is, moreover, sufficient evidence to take the causation issue on this cause of action to the jury also: in Dr. Krumholz’s agreement that there was a basis for fear of harm to the unborn infant in the unshielded X ray taken of plaintiff, and in Dr. Engel’s testimony of psychoneurosis of which the delay of six weeks in telling plaintiff of the failure of the abortion was a competent producing cause. That plaintiff concluded at that juncture not to have the second abortion does nor foreclose the possibility that had she been told promptly while the suction curettage procedure was still possible, she would have had it and certainly does not make speculative the agonizingly different decision with which defendant’s delay in informing her confronted her.

For the foregoing reasons, I would reverse the Appellate Division order, which reversed on the law, and remit the matter for its consideration on the facts.

Chief Judge Cooke and Judges Jasen, Gabrielli and Jones concur in memorandum; Judge Meyer dissents and votes to reverse in an opinion in which Judges Wachtler and Fuchs-berg concur.

Order affirmed.


text:
    Board of Education of Patchogue-Medford Union Free School District, Appellant, v Patchogue-Medford Congress of Teachers, Respondent.
    Argued October 10, 1979;
    decided November 20, 1979
    APPEARANCES OF COUNSEL

      Peter V. Snyder and Vanessa M. Sheehan for appellant.

      Daniel Galinson for respondent.
   OPINION OF THE COURT

Memorandum.

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

Respondent, asserting that petitioner had denied either a sabbatical leave or summer study grants to a total of 22 teachers in contravention of the collective bargaining agreement, sought to have the dispute submitted to arbitration. Petitioner then commenced this proceeding to stay arbitration claiming that a prior 1974 award between the same parties, denying the grievances of four different teachers seeking the same relief as these grievants, was res judicata of the present dispute.

Inasmuch as petitioner concedes that the grievance is within the scope of the broad arbitration clause in the collective bargaining agreement and that arbitration of the dispute would do no violence to the expressed public policy of the State, further judicial inquiry is foreclosed (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 513). Once this threshold inquiry is resolved, any remaining questions, including whether a prior award constitutes a bar to the relief sought, are within the exclusive province of the arbitrator to resolve (see Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23, 28-29; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582-583).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    35 Park Ave. Corp., Appellant, v John J. Campagna et al., Respondents.
    Argued October 12, 1979;
    decided November 20, 1979

      APPEARANCES OF COUNSEL

      Sidney A. Wolff and Matthew J. D’Emic for appellant.

      John J. Flynn, III, for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The cause of action to rescind the lease between plaintiff corporation as landlord and defendants as tenants, interposed more than six years after the execution of the lease, is time barred (see CPLR 213). Plaintiff’s reliance on section 235-c of the Real Property Law, enacted in July, 1976 after this action was commenced, is misplaced. That section, which provides that a court may grant relief from an unconscionable lease or clause, does not revive a claim already time barred. An intent on the part of the Legislature to effect so drastic a consequence must be expressed clearly and unequivocally (Hopkins v Lincoln Trust Co., 233 NY 213, 215). The proviso in the amendment (L 1976, ch 828, § 2), making section 235-c effective immediately and "applicable to all leases, regardless of when executed”, at best is ambiguous and does not indicate an intention to resurrect a cause of action predicated on unconscionability (see Beary v City of Rye, 44 NY2d 398, 413). No such intention can be discerned from the isolated comment of the Assemblyman, quoted by the dissent, expressing concern about the possible implications of the statute. Indeed, the act was designed simply to codify the common-law doctrine of unconscionability and make clear that the defense is available in the landlord-tenant context (see Governor’s Memorandum on Approval of L 1976, ch 828, McKinney’s 1976 Session Laws of New York, pp 2447-2448).

Nor is there any merit to plaintiff’s alternative theory that an unconscionable lease constitutes a continuing wrong. The execution of the unconscionable lease is the event giving rise to a claim, notwithstanding that its effect may last the life of the lease. Thus, plaintiff’s cause of action accrued at the execution of the lease. The question of whether a defense of unconscionability would be available beyond the limitation period is not in issue here (see CPLR 203, subd [c]).

Meyer, J.

(dissenting). I cannot agree that the language of section 2 of chapter 828 of the Laws of 1976 making it "applicable to all leases, regardless of when executed” (emphasis supplied), is ambiguous. The underscored words certainly encompass leases more than six years old, which the majority now holds beyond the reach of the statute because barred by limitations.

If the language itself is not clear enough, the Assembly debate supplies any deficiency. Urging defeat of the bill, Assemblyman Lo Presto gave as one of his reasons: "Second of all, which I am deeply concerned about, is the constitutionality of this provision wherein it affects all leases made, not of this date, not thirty days hence, not as of September 1, but all leases, no matter when executed. They could have been executed twenty years ago.” (Emphasis supplied.) Despite that argument, the bill became law. In view of that argument and the fact that limitations if applicable would permit it to affect no lease more than six years old, the conclusion must be that the Legislature has, indeed, intentionally revived an issue that would otherwise be barred.

Assemblyman Lo Presto’s fears as to constitutionality are not well founded. The Legislature may constitutionally revive a claim barred by limitations except when the effect of the lapse of time has been to invest the holder of property with title to it (Chase Securities Corp. v Donaldson, 325 US 304; Campbell v Holt, 115 US 620; Gallewski v Hentz & Co., 301 NY 164; Robinson v Robins Dry Dock & Repair Co., 238 NY 271, dsmd 271 US 649; Barrett v Wojtowicz, 66 AD2d 604; Matter of Strang, 117 App Div 796; see Electrical Workers v Robbins & Myers, 429 US 229; House v Carr, 185 NY 453), the more so when, as in a case of unconscionability, it can be said that justice so requires (Gallewski v Hentz & Co., supra; Robinson v Robins Dry Dock & Repair Co., supra). I would, therefore, reverse and reinstate the first cause of action.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in memorandum; Judge Meyer dissents and votes to reverse in an opinion in which Judge Fuchsberg concurs.

Order affirmed.


text:
    In the Matter of Sarkisian Brothers, Inc., Rothchild Project, Respondents, v State Division of Human Rights, Appellant.
    Argued October 9, 1979;
    decided November 20, 1979

      APPEARANCES OF COUNSEL

      Harry Starr and Ann Thacher Anderson for appellant.

      Kevin F. McDonough for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, with costs, and the order of the State Human Rights Appeal Board should be reinstated. It remains the law that "the time schedules specitied in section 297 (subd. 2; subd 4, pars, a, c) of the Executive Law for the performance of certain acts on the part of the Division of Human Rights are directory only. * * * The time limits are evidently for the benefit of complainants and others benefited and cannot be held to shelter those charged with violation of the statute. Absent some showing of substantial prejudice, noncompliance with such schedules does not operate to oust the division of the jurisdiction conferred on it by the Human Rights Law” (Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371, 380-381). While the length of the delay in processing a complaint is certainly relevant to the determination whether a particular respondent has suffered substantial prejudice from that delay, the mere passage of time normally will not constitute substantial prejudice in the absence of some showing of actual injury to the respondent. The force of this principle has not been diluted by the recent modifications of the time periods provided in section 297 (see L 1977, ch 729). Nor is a different rule suggested by our recognition in Matter of Tessy Plastics Corp. v State Div. of Human Rights (47 NY2d 789, 791) that the. continuation of proceedings before the division after a delay creating substantial prejudice to a respondent would constitute at most an "erroneous exercise of authority” since such delay would not divest the division of jurisdiction.

Applying these principles to the instant matter, it is readily apparent that the Appellate Division erred in concluding that" the division’s delay serves as a bar to continuation of this proceeding. This is especially so in light of the reorganization undertaken by the State Human Rights Appeal Board during the pendency of this proceeding. In short, our examination of the record persuades us that here, unlike the unusual situation presented in Board of Educ. v State Div. of Human Rights (42 NY2d 862), there exists insufficient reason, as a matter of law, "to shelter those charged with violation of the statute” (Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., supra, p 381). We have also examined respondent’s other contentions, and find them to be unpersuasive.

As to appellant’s suggestion that section 298 of the Executive Law does not authorize a proceeding to challenge a purportedly nonfinal order of the appeal board, we reject that contention for the reasons stated in State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd. (48 NY2d 276).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order.reversed, etc.


text:
    Harold Martinez, an Infant by His Mother and Natural Guardian, Blanca Martinez, et al., Appellants, v Murray Lazaroff et al., Respondents.
    Argued October 9, 1979;
    decided November 20, 1979
    APPEARANCES OF COUNSEL

      Herman B. Glaser and Helen B. Stoller for appellants.

      James M. O’Brien for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree that, as a matter of law, the failure of defendants to supply their tenants with hot water was not the proximate or legal cause of the injuries suffered by the infant plaintiff (Rivera v City of New York, 11 NY2d 856; cf. Pagan v Goldberger, 51 AD2d 508; see Prosser, Torts [4th ed], § 42, p 244). In this instance it was not the failure to supply hot water which was the direct cause of the injuries; the causal connection between the two was attenuated. The failure to furnish hot water gave rise to intervention on the part of the infant’s father to provide a substitute supply of hot water. But that action was not the direct cause of the injuries either. The injuries occurred when the father was transporting a pot of boiling water from the substitute source and the infant plaintiff came out of the bedroom and bumped into him. The intervention of the father brought about injuries to his son which were entirely different in character from any that would have resulted from the failure to supply hot water alone, and those injuries cannot be classified as normally to have been expected to ensue from the landlord’s dereliction.

Meyer, J.

(dissenting). The majority’s conclusion that defendants are entitled to summary judgment because as a matter of law defendant landlord’s failure to supply hot water was not the proximate cause of plaintiff’s injury is, in my view, contrary to the policy considerations concerning proximate cause and foreseeability previously espoused by this court and to the legislative purpose enunciated by section 78 of the Multiple Dwelling Law. I, therefore, respectfully dissent.

The question on defendants’ motion for summary judgment is whether construing the facts in the light most favorable to plaintiffs there remains an issue for the trier of fact, not how that issue would be determined by us were we the fact finders. Those facts are that plaintiff, Harold Martinez, then five years of age, was injured on May 3, 1975 when he ran out of the bedroom in his parents’ apartment and collided with a pot of hot water his father was carrying. As a result he suffered third degree burns over much of his body, permanent scarring and functional deformity. His father was carrying in the pot, from the kitchen to the bathroom, water which he had heated on the kitchen stove because the hot water boiler was broken. It had been out of repair for more than two weeks prior to Harold’s injury, a fact which had been reported both to defendants and to city officials. Indeed, the breakdown which resulted in Harold’s injury was but the latest in a series of breakdowns stretching over a period of 15 months, about which tenants of the building had likewise complained to defendants and city officials and concerning which violations had been issued. For purposes of the motion defendants do not dispute that the boiler was broken, that there was no hot water and that they had notice of the condition. Yet Harold Martinez’ injuries are not to be compensated because, the majority concludes, they are not "normally to have been expected to ensue from the landlord’s dereliction” and because "the intervention of the father brought about injuries to his son which were entirely different in character from any that would have resulted from failure to supply hot water alone.

To make proximate cause turn upon the character of injury suffered is a fallacious concept, inconsistent with our prior holdings. In Matter of People (Guardian Cas. Co.) (253 App Div 360, affd 278 NY 674) the injury complained of occurred as follows: defendants, driving a taxicab and a private car collided with one another, and the taxicab came to rest against a stoop, dislodging one of the stones. Plaintiff, the operator of a laundry in the building, was called to the scene. When a tow truck attempted to pull the cab away from the stoop, the stone fell from the stoop, killing plaintiff. Although the injury was obviously different in kind from that which would have resulted from simple negligent driving, nevertheless, both drivers were held liable. In Parvi v City of Kingston (41 NY2d 553) plaintiff was injured by an automobile when he wandered on to the highway. The negligence of the police officer there involved was in picking plaintiff up in the City of Kingston, intoxicated, and leaving him on its outskirts on a golf course, presumably to sleep it off. Again the injury suffered was wholly different from what would have resulted (illness, exposure) from the officer’s negligent act considered by itself. So, also, a negligent defendant is liable for the full consequences of the medical malpractice of plaintiff’s treating physician notwithstanding that those consequences may differ very substantially from the injuries inflicted by the negligent defendant (Milks v Mclver, 264 NY 267).

Essentially the problem is not one of causation but of policy concerning the point beyond which responsibility should not be imposed (Ventricelli v Kinney Car System Rent A Car, 45 NY2d 950, 952; Pagan v Goldberger, 51 AD2d 508; Prosser, Torts [4th ed], § 44, p 270; 1 NY PJI2d 212). As the Comment to PJI puts it "The issue is at what point is a defendant whose negligent act or omission has contributed to an injury to be relieved of liability by reason of the fact that after his act or omission a new and independent cause comes into operation?”

Traditionally, the answer to that question has turned on whether the intervening act is one that flows naturally from the original wrongful act or could reasonably be foreseen, which has generally been held to be a jury question (Parvi v City of Kingston, 41 NY2d 553, 560, supra). To be considered in determining the issue, we are told by subdivision (c) of section 442 of the Restatement, Torts 2d, is "the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation”. From section 443 and its Comment and section 447 we learn that "The intervention of a force which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about” (§ 443), it is not necessary that the third person’s act be "reasonable” (ibid., Comment a), that the original actor may be liable even though the third person acts negligently (§ 447), and that the word "normal” is not used in the sense of usual, foreseeable or to be expected, but means rather "that the court or jury, looking at the matter after the event, and therefore knowing the situation which existed when the new force intervened, does not regard its intervention as so extraordinary as to fall outside the class of normal events” (§ 443, Comment b; § 447).

New York courts have consistently applied these principles: in Gardner v Fleckenstein (3 NY2d 812), to hold a homeowner who had left paraffin wax heating on a stove liable to plaintiff who was walking on the lawn when a workman on the premises, seeing flames in the kitchen, seized the flaming wax pot and threw it into the yard, burning plaintiff; in Miller v Board of Educ. (291 NY 25), to hold a board of education liable for failure to repair a fire escape door, though plaintiff would not have been injured had the teacher not failed to supervise plaintiff’s play; in Parvi v City of Kingston (supra), to hold the city liable for the police officer’s negligence, even though plaintiff would not have been injured had a car not arrived on the highway at the same time and place as he; in Foley v State of New York (265 App Div 682), to hold the State liable for failure to replace a burned out bulb in a traffic light, even though plaintiff would not have been injured had the drivers of the cars which collided not been negligent.

Against the background of these cases and the Restatement formulations quoted and referred to above, it is difficult to understand the majority’s conclusion that there is here no question for the jury. Surely it cannot be said that the act of Renaldo Martinez, Harold’s father, in heating water on the stove in the kitchen and carrying it to the bathroom for purposes of cleanliness was other than a normal consequence of defendants’ failure to keep the hot water boiler in repair, or that in view of the well-known propensities of children to climb about and play (Collentine v New York, 279 NY 119; Parnell v Holland Furnace Co., 234 App Div 567, affd 260 NY 604), Harold’s act in running out of the bedroom was "so extraordinary as to fall outside the class of normal events”.

That the circumstances of this case present a question of fact for the jury is, moreover, clear not only from cases such as Parvi v City of Kingston (supra) and Kingsland v Erie County Agric. Soc. (298 NY 409), but also from our decision in Cochenour v Jackson (237 NY 505) and that of the New Jersey Appellate Division in Mitchell v Friedman (11 NJ Super 344). In Cochenour we upheld a verdict for plaintiff for the wrongful death of a four-month-old infant, which resulted from the failure of the landlord to heat the apartment in which the child lived, as required by the Sanitary Code, notwithstanding the landlord’s arguments that it was the weather and the condition of health of the infant rather than his failure to heat which was the proximate cause of the child’s death. In the Mitchell case, the New Jersey court held that it was for the jury to decide whether defendant landlords should have foreseen that as a result of their failure to repair the plumbing for 12 days after a fire, plaintiff, because the water pressure was insufficient to cause the toilet to flush, would injure her back while lifting a pail of water from the bathtub in order to maintain sanitary conditions in her apartment. Its reasoning (11 NJ Super, at p 348) was: "The act of the defendant need not be the only factor in bringing about the injury, but it must be a substantial factor. The ordinary course of events often includes the unexpected; sometimes it presents what, in advance, would seem most unlikely to happen, as in Hammil v. Pennsylvania R. R. Co., supra. [56 NJL 370, 29 A 151.] And on the other hand, the outcome may be so extraordinary that the wrongdoer is not considered liable. Restatement, Torts, § 433. Whether the injury received by plaintiff was the 'natural’ result of defendants’ negligence, was a question for the jury.”

The more particularly should our conclusion be that there is a question for the jury when it is remembered that what is here involved is the failure to comply with section 78 of the Multiple Dwelling Law. Adopted some 50 years ago, when the law of landlord and tenant was, to say the least, stringent with respect to tenants’ rights (see, e.g., Quinn & Phillips, Law of Landlord-Tenant: A Critical Evaluation of the Past With Guidelines for the Future, 38 Fordham L Rev 225), that section provides, in its subdivision 1, that "Every multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section”. As Mr. Justice Hopkins noted in his classic opinion on foreseeability and proximate cause in Pagan v Goldberger (51 AD2d 508, 512, supra), "the interests or public policy are embodied in the statutory command that a landlord of a multiple dwelling should maintain the premises in good repair (Multiple Dwelling Law, § 78).” It is the Legislature, of course, which is the primary progenitor of public policy, and it is not unknown to the law of proximate cause that a lesser connection between negligence and injury be required with respect to violation of statutory standards than for violation of common-law requirements (see, e.g., Mead v Stratton, 87 NY 493, 496 [Dram Shop Act]; Daggett v Keshner, 284 App Div 733, judgment after trial mod 6 AD2d 503, affd 7 NY2d 981 [Administrative Code provisions re sale of gasoline in cans]; Rogers v Missouri Pacific R. R. Co., 352 US 500 [Federal Employers’ Liability Act]).

While it is true that in those cases the ruling was based on the wording of the statute (Rogers, supra) or an intent to create absolute liability, found in the wrong sought to be remedied (Mead and Daggett, supra), that should not be a sine qua non for application of the lesser standard. Especially is this true with respect to a statute the purpose of which was to right the imbalance between landlords and tenants, as Judge Cardozo (as he then was) so ringingly declared in the following passage from Altz v Leiberson (233 NY 16, 18-19) with respect to the Tenement House Law provision, which was the predecessor of section 78 of the Multiple Dwelling Law:

"The comprehensive sweep of this enactment admits of no exception * * * The meaning is that the premises shall not be suffered to fall into decay. The duty to prevent this, which, in part at least, once rested upon the tenant, is now cast upon another.
"A narrower construction ignores, not only the letter of the statute, but the evil to be cured. A 'tenement house,’ as the meaning is enlarged by the definition of the statute, may include the dwellings of the rich. In its primary and common application, it suggests the dwellings of the poor (Hitching v. Brown, 180 N. Y. 414, 422). We may be sure that the framers of this statute, when regulating tenement life, had uppermost in thought the care of those who are unable to care for themselves. The legislature must have known that unless repairs in the rooms of the poor were made by the landlord, they would not be made by any one. The duty imposed became commensurate with the need. The right to seek redress is not limited to the city or its officers. The right extends to all whom there was a purpose to protect (Amberg v. Kinley, 214 N. Y. 531, 535; Martin v. Herzog, 228 N. Y. 164, 168; Bornstein v. Faden, 149 App. Div. 37; 208 N. Y. 605).”

A statute such as section 78 of the Multiple Dwelling Law should be interpreted "according to its true intent and meaning, having in view the evil to be remedied and the object to be attained” (Mead v Stratton, supra, at p 496).

Whether because there is a jury question of foreseeability under the general test of proximate cause in the law of negligence (cf. Daggett v Keshner, 284 App Div, at p 740, supra), or because in light of the purpose of the Multiple Dwelling Law there was "a recognizable practical connection” between the violation of that statute and Harold Martinez’ injury (id., at p 739), the defendants are not entitled to summary judgment of dismissal.

For the foregoing reasons, I would reverse and reinstate the order of Special Term denying defendants’ motion for summary judgment.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in memorandum; Judge Meyer dissents and votes to reverse in an opinion in which Judge Fuchsberg concurs.

Order affirmed.

       Section 102, which read simply: "Every tenement house and all parts thereof shall be kept in good repair”.


text:
    In the Matter of H. Earl Fullilove et al., as Trustees of the New York Building and Construction Industry Board of Urban Affairs Fund, Respondents, v Hugh L. Carey, as Governor and Chief Executive Officer of the State of New York, et al., Appellants.
    Argued September 5, 1979;
    decided November 20, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Shirley Adelson Siegel, Dominick J. Tuminaro, Arnold D. Fleischer and Judith T. Kramer of counsel), for Hugh L. Carey, as Governor of the State of New York, appellant.

      Ann Thacher Anderson for Office of State Contract Compliance, Division of Human Rights, appellant.

      Robert G. Benisch, Robert J. Fink and Richard O’Hara for respondents.

      Victor M. Goode, Alton Maddox, Jr., and Howard Lane for National Conference of Black Lawyers and another, amici curiae.

      M. D. Taracido, Kenneth Kimerling, Peter Bienstock and Idelisse Malave for Puerto Rican Legal Defense & Education Fund, Inc., amicus curiae.

   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (62 AD2d 798; see, also, Matter of Fullilove v Beame, 48 NY2d 376, decided herewith).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler. Judges Fuchsberg and Meyer dissent and vote to reverse (see dissenting opn by Fuchsberg, J., in Matter of Fullilove v Beame, 48 NY2d 376, decided herewith).


text:
    In the Matter of Thomas M., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued October 16, 1979;
    decided November 20, 1979
    APPEARANCES OF COUNSEL

      William E. Hellerstein, John F. McGlynn and Charles Schinitsky for appellant.

      Allen G. Schwartz, Corporation Counsel (Stephen J. Mc-Grath and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the petition charging appellant with juvenile delinquency should be dismissed.

Unlike the defendant in People v Wachowicz (22 NY2d 369), upon which the Appellate Division majority relied, appellant was in possession of no burglar’s tools. The only evidence to connect appellant circumstantially to the attempted break-in is his flight and the fact, which the Family Court Judge impliedly found, that appellant lied about his whereabouts at the time of the attempted break-in. As to the first, however, the flight could equally well be attributed to appellant’s status as a trespasser (People v Irvin, 43 NY2d 704; cf People v Leyra, 1 NY2d 199, 209). As to the latter, appellant’s denial of presence can hardly be equated with proof, beyond a reasonable doubt, of attempted burglary.

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

Order reversed, without costs, and the petition dismissed in a memorandum.


text:
    Grace L. Dubendorf et al., Doing Business as Gra-Mar Hall and Gra-Mar-on-the-Lake, Appellants, v New York State Education Department et al., Respondents.
    Submitted October 29, 1979;
    decided November 20, 1979
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, §11).


text:
    Ivan R. Kovac, Respondent, v Harry N. Borsher et al., Appellants.
    Submitted November 5, 1979;
    decided November 20, 1979
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 38, pp 156-157).


text:
    In the Matter of the Arbitration between Board of Education of the Pearl River School District, Appellant, and Pearl River Teachers Association et al., Respondents-Appellants.
    Submitted November 12, 1979;
    decided November 20, 1979
   Motion to dismiss appeal taken as of right by petitioner-appellant granted and appeal dismissed, without costs, and motion by respondent-appellant for leave to appeal dismissed, each upon the ground that the order of the Appellate Division does not finally determine the proceeding within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 11).


text:
    In the Matter of the Estate of Frank A. Ludlam, Deceased. Arthur Buxenbaum, Appellant; Nathan Zausmer, as Executor of Frank A. Ludlam, Deceased, Respondent.
    Submitted October 8, 1979;
    decided November 20, 1979
   Motion for leave to appeal denied, with $20 costs and necessary reproduction and printing disbursements. Judge Meyer taking no part.


text:
    Herbert Parilis, as Administrator of the Estate of David P. Parilis, Deceased, et al., Respondents, v Joyce Feinstein, an Infant, by Her Father and Natural Guardian, Herbert Feinstein, et al., Appellants.
    Submitted November 5, 1979;
    decided November 20, 1979
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of the Arbitration between Country-Wide Insurance Company, Respondent, and Robert Barrios, Appellant.
    Argued October 10, 1979;
    decided November 21, 1979
    APPEARANCES OF COUNSEL

      Maurice Chayt for appellant.

      Bernard Samuels and Eric M. Alderman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court denying the insurer’s application for a permanent stay of arbitration reinstated.

Under the provisions of section 675 of the Insurance Law as implemented by regulations promulgated by the Superintendent of Insurance the insured is given the option of submitting any dispute involving the insurer’s liability to pay first-party benefits, including his attorney’s reasonable fee, to arbitration for resolution. In the present case the insured is availing himself of this option. More particularly he now seeks to recover from the insurer an allowance for an additional counsel fee for services rendered in prior appeals to the Appellate Division (54 AD2d 879) and to our court (43 NY2d 685) in judicial proceedings instituted by the insurer to review the original arbitration award which directed the insurer to pay first-party benefits for dental services and associated counsel fees. When the insurer resisted the present additional claim for further counsel fees, the insured sought to submit their dispute to arbitration. This he was entitled to do under the statute.

Contentions advanced by the insurer that the insured is not entitled to post arbitration fees under the statute, on whatever legal theory or factual ground they may be predicated, go to the merits of the insured’s claim and thus are for the arbitrator to consider and resolve. The courts "shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute” (CPLR 7501). (Cf. Board of Educ. v Patchogue-Medford Congress of Teachers, 48 NY2d 812 [holding that a defense based on res judicata principles is for the arbitrator].) In accordance with the command of the statute we intimate no views on the arguments advanced by the parties, other than to uphold the right of the insured to submit his claim for additional counsel fees to arbitration.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur; Judges Jasen and Meyer dissent and vote to affirm for reasons stated in the dissenting opinion by Judge Meyer in Matter of Fresh Meadows Med. Assoc. (Liberty Mut. Ins. Co.) (49 NY2d 93).

Order reversed, with costs, and the judgment of Supreme Court, New York County, reinstated in a memorandum.


text:
    Carolyn V. McGahee, Appellant, v F. Keith Kennedy, Respondent.
    Argued October 18, 1979;
    decided November 27, 1979

      APPEARANCES OF COUNSEL

      Donald M. Sukloff for appellant.

      Maurice P. O'Brien for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs; plaintiff’s motion for summary judgment is granted and the case is remitted to Supreme Court, Broome County, for an assessment of damages. The question certified is answered in the negative.

Defendant claims that his assent to the terms of the separation agreement of November 14, 1974 was not voluntary but was the result of coercive actions of plaintiff. This original agreement was subsequently modified by instruments dated March 12, 1975 and October 21, 1975, the latter stating that "[a]ll other terms, conditions and covenants contained in the Separation Agreement and the Amendment to the Separation Agreement [dated March 12, 1975] are to remain in full force and effect.” Although defendant stated that plaintiff had continued her threats during the period of this second modification, he failed to give details of the alleged coercive conduct and did not tie that conduct to his assent with any degree of specificity. The purely conclusory statements that his assent to said modification was a result of plaintiff’s coercive influence are insufficient. While the courts will scrutinize carefully the circumstances surrounding the execution of a separation agreement (Christian v Christian, 42 NY2d 63), defendant has not come forward with an evidentiary showing on this crucial issue such as to warrant denial of a motion for summary judgment (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Indig v Finkelstein, 23 NY2d 728).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Lawrence Whisby and Arthur Price, Jr., Appellants.
    Argued October 18, 1979;
    decided November 27, 1979

      APPEARANCES OF COUNSEL

      Peter P. Galloway for Lawrence Whisby, appellant.

      Michael A. Martinelli for Arthur Price, Jr., appellant.

      Carl A. Vergari, District Attorney (Gerald D. Reilly and Anthony J. Servino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendants’ contention that they have been denied their right to a speedy trial (US Const, 6th, 14th Arndts; CPL 30.20; Civil Rights Law, § 12) may not be considered by this court where defendants failed to raise the issue at trial. (People v Primmer, 46 NY2d 1048; People v Adams, 38 NY2d 605.)

We also reject the contention of each of the defendants that the in-court identification by the victim ought to have been suppressed. With respect to defendant Price, it need only be stated that there is evidence in the record to support the trial court’s factual finding, affirmed by the Appellate Division, that the in-court identification was based upon an independent source of recollection. In such a situation, this court may not disturb this finding. (People v Burrows, 46 NY2d 957; People v Peterson, 40 NY2d 1014.) With respect to defendant Whisby, the record supports the affirmed finding of fact that he was identified by the complaining witness on a public street in White Plains and that "there were no police identification procedures necessary and none, in fact, took place.” (See People v Logan, 25 NY2d 184, 193, cert den 396 US 1020.)

We have examined defendants’ remaining contentions and find them to be without merit.

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

Order affirmed in a memorandum.


author: Gabrielli, J.

text:
    State of New York, Respondent, v General Motors Corporation, Appellant.
    Argued October 16, 1979;
    decided November 27, 1979

      APPEARANCES OF COUNSEL

      Roy L. Reardon, Rolon W. Reed and Michael V. Corrigan for appellant.

      Robert Abrams, Attorney-General (Amy Juviler, Shirley Adelson Siegel, Stephen Mindell, Herbert Israel and Robert L. Schonfeld of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order dated June 6, 1978 should be reversed, with costs, the proceeding dismissed as to the claim with respect to the Cadillac Seville and the proceeding as to the remainder of the claims asserted remitted for an evidentiary hearing on the issues of fact and further proceedings on the petition, if warranted, all for the reasons stated in the dissenting opinion of Mr. Justice Samuel J. Silverman at the Appellate Division. As the dissenters in our court argue, there is evidence in this record from which it might be found that General Motors was guilty of dissemination of misleading advertising. There is also, however, substantial countervailing proof. This state of the record precludes the summary disposition accorded below. Particularly is this so inasmuch as there is evidence in the record that the engineering and marketing practice of General Motors, to which the Attorney-General points attention in this proceeding, is but a prototype of the assembly practices common generally to the automobile industry and to other American manufacturing industries.

There was no error in the determination of the Appellate Division (brought up for review pursuant to CPLR 5501, subd [a], par 1), affirming the denial of the motion to dismiss on the ground of res judicata.

Gabrielli, J.

(dissenting). I respectfully dissent and vote to modify the order of the Appellate Division only to the extent of remitting the matter to Supreme Court, New York County, for further proceedings to determine the appropriate measure of restitution to defrauded consumers.

This is a proceeding brought by the Attorney-General pursuant to subdivision 12 of section 63 of the Executive Law. That section authorizes the Attorney-General to seek injunctive relief and restitution for injured parties whenever "any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business”. This remedial legislation is designed to provide protection for the consumer, as is evidenced by the considerable reach of the statute. Thus, the terms "fraud” and "fraudulent” are defined very broadly to include "any device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions”. Similarly, the words "persistent fraud” or "illegality” as used in the statute require only that there be a "continuance or carrying on of any fraudulent or illegal act or conduct”.

In the instant proceeding, the Attorney-General contends, and the courts below found, that General Motors disseminated advertising likely to mislead potential consumers into believing that automobiles manufactured by the various divisions of General Motors contained motors especially designed and produced by or for the particular division which placed its label on the car, although in fact General Motors regularly placed engines manufactured and designed by one division into cars produced by its other divisions. In support of these accusations, the Attorney-General submitted documentary evidence both of General Motors’ advertising practices and of the fact that numerous consumers were actually deceived by these advertisements. On the basis of this unassailed proof, and without any evidentiary hearing, Supreme Court concluded that General Motors had indeed engaged in conduct of the type proscribed by subdivision 12 of section 63. The court then awarded both injunctive relief and "restitution” in the form of extended warranties and cash rebates for consumers who had unknowingly purchased 1977 Cadillac Sevilles, Oldsmobiles, Buicks and Pontiacs containing engines produced by another division of General Motors. The Appellate Division affirmed this determination, and General Motors now appeals to this court.

It is beyond dispute and in fact uncontested that General Motors did indeed engage in the practice of engine switching without notice to automobile purchasers. Additionally, General Motors concedes that the advertising samples submitted by the Attorney-General were in fact disseminated by General Motors. The question presented on this appeal is whether the Supreme Court was justified in concluding that General Motors had engaged in forbidden conduct and in making the award described above on the basis of the documentary evidence presented to that court, or whether an evidentiary hearing was necessary. For the reasons discussed below, I would sustain the finding that General Motors engaged in false and misleading advertising, but would remand for further proceedings to determine the appropriate measure of restitution.

Initially, I note my agreement with the principle stated by Mr. Justice Samuel J. Silverman in his dissenting memorandum below (63 AD2d 885,. 885-886), and presumably adopted by the majority of this court today, that in a proceeding of this sort the Attorney-General need not prove that any consumer was in fact deceived by the forbidden practices. Rather, injunctive relief, at least, is authorized by the Executive Law (§ 63, subd 12) upon a showing that a particular advertisement may convey a false impression to the consumer. Moreover, as we stated in Guggenheimer v Ginzburg (43 NY2d 268, 273): "In weighing a statement’s capacity, tendency or effect in deceiving or misleading customers, we do not look to the average customer but to the vast multitude which the statutes were enacted to safeguard — including the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions”. Although we were speaking of a different statute in that case, the principle and sentiments expressed therein are equally applicable to other consumer protection legislation such as subdivision 12 of section 63 of the Executive Law. So viewed, I find that the advertising used by General Motors was indeed sufficiently deceptive as a matter of law to warrant relief pursuant to subdivision 12 of section 63 of the Executive Law.

Normally, of course, the question whether certain advertising is deceptive will be a question of fact best determined following an evidentiary hearing. In certain cases, however, such as this, the deceptive nature of an advertisement is so painfully obvious that it can be deemed such as a matter of law. Illustrative of the objectionable advertising disseminated by General Motors is an Oldsmobile advertisement which stated in pertinent part: "If you’re getting the feeling that we’ve built an Olds that’s right for your needs and your lifestyle, you’re getting the idea. Take a few minutes now to read through this brochure and see how Olds’ styling, features and engineering have helped shape the Olds that’s just right for you”. Appearing adjacent to this ode to the Oldsmobile is a picture of a 231 V6 engine which is available in several Oldsmobile models. It appears clear that even the average consumer, not to mention "the ignorant, the unthinking and the credulous”, would assume this to be an Oldsmobile engine. In fact, however, Buick is the only division of General Motors which manufactures a V6 engine, and thus any purchasers of an Oldsmobile with a V6 actually received a Buick engine.

Even more devastating to General Motors’ claims that a consumer could not be lead to believe from its advertisements that the automobiles produced by each division contained motors manufactured by or especially for that division, is General Motors’ 1977 Buick Buyer’s Guide. That helpful pamphlet contains a section entitled "Buick Engines”. Reference is made therein to an assortment of V8 engines available in Buicks. Many of those engines, however, rather than being Buick engines, were in fact manufactured by Pontiac or Oldsmobile. Unlike a majority of this court, I have little difficulty in concluding as a matter of law that an advertisement which describes Oldsmobile and Pontiac engines as Buick engines is in fact somewhat deceptive.

The record also reveals an advertisement for the Cadillac Seville which proudly declares: "Seville is so well engineered that a number of its design concepts have been incorporated in the 1977 Cadillacs * * * the cars we proudly label the next generation of the luxury car. Seville is also a car of innovation —incorporating many of the latest American advancements. Such as its 5.7 Litre Electronic Fuel Injected engine with an on board analog computer.” Undoubtedly anyone purchasing a Cadillac Seville on the basis of such an advertisement must have been rather surprised to learn that in fact this extraordinary engine was manufactured by Oldsmobile.

The advertisements described above are illustrative only, and the record abounds with many similar examples. In light of this especially strong record, I firmly agree with the courts below that General Motors did indeed engage in deceptive advertising, as a matter of law, with respect to the engines used in its automobiles. While automobile buffs may have known enough to carefully inquire into the origin of the motor before purchasing a General Motors car, I think the average consumer would have been justified in believing that his 1977 Oldsmobile contained an Oldsmobile engine, rather than a Buick engine, after being repeatedly assured that General Motors had built an Oldsmobile just for him. Hence, I would affirm the order appealed from insofar as it provides purely injunctive relief on the basis of the finding that General Motors engaged in conduct proscribed by subdivision 12 of section 63 of the Executive Law.

I would remit the matter to Supreme Court, however, for further proceedings designed to establish a factual foundation for any restitution to be provided defrauded consumers. The record as it now stands provides no support for the determination made by Supreme Court that an extended warranty and a $200 cash rebate constitute appropriate restitution to consumers who unwittingly purchased automobiles with switched engines. It is true, of course, that a court has considerable discretion in determining the proper means and extent of restitution in a proceeding of this type (see State of New York v Princess Prestige Co., 42 NY2d 104, 108). This is so because the injuries sustained by a defrauded consumer are often not readily susceptible of precise quantification, and yet some measure of damages must be devised. Nonetheless, there must exist some articulable rationale for establishing a particular measure of restitution. Subdivision 12 of section 63 does not authorize the imposition of fines as a means of penalizing fraudulent conduct, but instead speaks in terms of restitution for actual injuries. In the instant case, for example, it might be appropriate to determine restitution based in part on any decrease in the resale value of an automobile with a switched engine. Similarly, inquiry could be made into the price differences, for example, between a Cadillac Seville with an Oldsmobile engine and an Oldsmobile with extensive accessories. This is not to imply, of course, that restitution should be computed on an individual basis, for we are dealing with a broad remedial statute. Nonetheless, an award of restitution must be grounded upon more than is found within the record as it now reads.

Accordingly, I vote to remit this matter for further proceedings in accord with this opinion.

Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli dissents in part and votes to modify in a separate opinion in which Chief Judge Cooke concurs.

Order reversed, with costs, proceeding dismissed as to claim with respect to the Cadillac Seville and the proceeding as to the remainder of the claims asserted remitted to Supreme Court, New York County, for a hearing in accordance with the memorandum herein.

       It is claimed that the present proceeding is barred by the doctrine of res judicata because of a prior proceeding brought in April, 1977 against General Motors which resulted in a consent judgment against General Motors. However, that proceeding was limited to the fraudulent practice of using Chevrolet engines in Buick, Oldsmobile and Pontiac automobiles. When the consent judgment became public knowledge, the Attorney-General received hundreds of complaints aimed at the practice of using Buick, Oldsmobile and Pontiac motors interchangeably in each other’s cars, and the use of those engines in Cadillac Sevilles. General Motors’ practices and the claimed fraudulent acts in each of these proceedings were different from the other. Hence, res judicata is not applicable.


author: Fuchsberg, J.

text:
    Thomas I. Fitzgerald, Public Administrator of the County of New York, as Administrator of the Estate of Carl P. Blume, Deceased, Appellant, v American Trading and Production Corp., Respondent.
    Argued October 9, 1979;
    decided November 27, 1979

      APPEARANCES OF COUNSEL

      Robert Markewich and Kenneth Heller for appellant.

      Joseph M. Costello and Frederick N. Gaffney for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (62 AD2d 951).

Concur: Chief Judge Cooke and Judges Jasen, Gabkielli, Jones, Wachtler and Meyer. Judge Fuchsberg dissents and votes to reverse in the following opinion.

Fuchsberg, J.

(dissenting). As best I can fathom it from the record, the opinion and order of the Appellate Division dismissing the complaint proceeds on a misconception of the letter and spirit of maritime law.

To initiates in the law of the sea this is not a complex case. The plaintiff’s decedent, Carl P. Blume, master of a tanker owned by defendant was swept overboard in rough weather during a voyage across the Pacific from the United States to India. This action for wrongful death brought on theories of unseaworthiness and negligence, was anchored in the main on allegations that (1) on the day Blume lost his life the ship was wallowing helplessly in extremely turbulent seas, having lost rudder control because of a defective valve; (2) that the master had set out on a tour of inspection of the extensive consequent damage to the vessel; (3) that, while so engaged, he disappeared from sight in heavy seas at a point where unrepaired protective railings had been washed away or damaged; and (4) that the ship did not reverse course to search for the master until 5 hours and 40 minutes later.

After an extensive jury trial, Justice Greenfield, in an impeccable charge, submitted issues of alleged unseaworthiness and negligence, along with those of proximate. cause, contributory negligence and damages, to the jury. The jury returned a verdict of $808,536, reduced by its finding that contributory negligence accounted for 10% of the loss, to $727,682.40. Although the Trial Judge denied all motions to disturb the verdict, the Appellate Division reversed the judgment entered thereon and, as indicated, dismissed the complaint. I believe the law and the facts leave us no option but to reinstate the judgment.

At the outset, I stress that Federal and not New York law controls this case. Though the Federal Judiciary Act grants concurrent jurisdiction to the Federal and State courts (US Code, tit 28, § 1333), all must apply the Federal law in order to secure a single uniform body of admiralty law (see Matter of Rederi [Dow Chem. Co.], 25 NY2d 576, 581 [Fuld, Ch. J.]).

Supplanting the ordinary common-law duty of master and servant, maritime law is imbued with an overtly "humanitarian policy” responsive to the hazards faced by those who go to sea and, accordingly, has seen fit to implement that policy by shifting the burden of the cost of injury to those thought best able to bear it. Thus, the law has imposed a liability for risks which the owner of a vessel can prevent, whether by providing a seaworthy vessel or avoiding negligence, that for all practical purposes is absolute. (Seas Shipping Co. v Sieracki, 328 US 85, 93-94; Milin v United States Lines, 31 NY2d 336, 338.) And as to negligence, Federal statutory law has for like reasons made inapplicable the traditional tort doctrines of assumption of risk and contributory negligence (US Code, tit 45 [Federal Employers’ Liability Act], as incorporated by US Code, tit 46, § 688 [Jones Act]; see Ferguson v Moore-McCormack Lines, 352 US 521).

Furthermore, consistent with the protective nature of this substantive law, the level of proof necessary to establish a prima facie case of either unseaworthiness or negligence is reduced to a point where it can fairly be said that no more than a scintilla of evidence is necessary. So, in contrast to the heavier burden usually assessed by the common law, in cases like the present one it has been authoritatively stated that it suffices if there is proof that negligence or unseaworthiness played any part "however small” in causing an injury or death (Rogers v Missouri Pacific R. R. Co., 352 US 500, 506-510). Among other characterizations recognized as accurate descriptions of the requisite showing are "featherweight” (Landry v Two R. Drilling Co., 511 F2d 138, 142) and "slight” (Gilmore and Black, Admiralty, § 6-36, p 311).

So measured, to find support for a prima facie case in the record was a remarkably easy task.

Turning first to the loss of steering, the damage it caused and the fatal danger-ridden inspection thus precipitated, the defendant disputed whether the loss of rudder control occurred on December 16, when the fatality occurred, or three days earlier, on December 13, as the ship’s log entry indicated. But the entry hardly had to be determinative since there was proof of various irregularities in the log; these included the fact that entries were not always made contemporaneously, thus opening up the real possibility that an entry date made later, especially under the stress of a very trying voyage, would be inaccurate. Moreover, because of the interposition of the international date line and the accompanying change of time zones, the difference between the two dates may have actually represented something less than two days. And, perhaps most important, even if the loss of steering and resulting damage indeed had occurred on the 13th, the result would only have enlarged the period during which evidence of unseaworthiness — including both the condition of the guardrails and the other damage — had existed to the 16th.

Next, with respect to the circumstances of Master Blume’s demise, according to the testimony of the witness Kuberaski, who last saw the master before he disappeared from sight as "green water” hit the ship, there was nowhere Master Blume could then have gone except overboard at that point. Notably, the damaged and missing rails, whose repair was the charge of Chief Officer Perkins, were the only things that could have prevented his being swept away. In fact, at one point defendant’s counsel agreed that whether the guardrails were unseaworthy and, if so, proximately causative of the death, was a question of fact for the jury.

With regard to the actual drowning and the failure to fulfill the obligation to search, I need only note that the record raised issues of fact as to whether the conduct of the ship’s personnel comported with their duty under the circumstances (see Abbott v United States Lines, 512 F2d 118, 121).

From all this evidence, the jury was certainly not compelled to draw the inferences which the Appellate Division ultimately did. Rather, as the Trial Judge correctly recognized, it was for the triers of the facts, not a reviewing court, to select from among the available inferences and conclusions those which it considered most reasonable (see Tennant v Peoria & Pekin Union Ry. Co., 321 US 29, 35). For the same reasons, though the Trial Judge came to the conclusion that loading and course-setting were primarily duties owed by the master to the vessel’s owner as his sole responsibility and therefore would not permit them to serve as an affirmative premise for recovery, it was for the jury alone to determine, as it did, what role these factors played on the issue of proximate cause or as a contributing factor in diminution of a recovery for negligence.

Finally, a word as to why I not only would reverse but would reinstate the judgment as well. Ordinarily, the Appellate Division’s reversal having been on the law, a remittal to it for review of the facts would be in order (CPLR 5501, subd [c]). However, I believe that our rule of practice must bow to the dictates of the Jones Act and Federal maritime law. For a maritime tort is placed by the United States Constitution under the national power to control " 'its substance as well as its procedural features’ ” (Pope & Talbot v Hawn, 346 US 406, 409 [Black, J.], quoting Panama R. R. Co. v Johnson, 264 US 375, 386) (emphasis mine). A contrary view would affect the result of the litigation, "i.e., would be outcome determinative” (Matter of Rederi [Dow Chem. Co.], supra, p 581). It would subvert the clear intention of the Federal law that jury determinations of questions of fact govern irrespective of contrary judicial views as to the weight of the evidence. Accordingly, neither our State Constitution nor our procedural statutes are an impediment to the enforcement of the philosophy written into maritime law (US Const, art VI, cl 2).

Order affirmed, etc.

       Issues as to overloading and course-setting had also been pressed but were withdrawn from the jury’s consideration by the court before the case went to the jury on the ground that these would have been the exclusive responsibility of the master of the vessel himself.


text:
    In the Matter of Eugene T. Lowe, Appellant, v Albert D. Gray, Jr., as Commissioner of the Department of Correction of the County of Westchester, et al., Respondents.
    Argued October 19, 1979;
    decided November 27, 1979

      APPEARANCES OF COUNSEL

      James M. Rose and Arthur H. Grae for appellant.

      Samuel S. Yasgur, County Attorney (Kenneth E. Powell and Jonathan Lovett of counsel), for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (66 AD2d 891).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Douglas A. White, David A. McDonald, Jeffrey Hammond, Daniel Burkhart, Karen Grace, David Lenz and Timothy L. Mack, Appellants.
    Argued October 19, 1979;
    decided November 27, 1979

      APPEARANCES OF COUNSEL

      John A. R. Walsh for appellants.

      Richard E. Chase for respondent.
   OPINION OF THE COURT

Order reversed and the information dismissed (see People v Berck, 32 NY2d 567).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Eleanor L. Markland, Appellant-Respondent, v Franklin J. Markland, Respondent-Appellant.
    Argued November 15, 1979;
    decided November 27, 1979

      APPEARANCES OF COUNSEL

      David E. Sallah for appellant-respondent.

      Michael B. Atkins for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

Since the record here indicates that the evidence proffered by each party with respect to the different events on which they posited their respective demands for divorce presented questions of fact, the resolution of those issues by the trial court so as to grant a divorce to the wife and to deny one to the husband, both now affirmed by the Appellate Division, are beyond our review.

We also find no reason, as a matter of law, to disturb the order of the Appellate Division insofar as it modifies the judgment of trial term by (1) deleting its award of custody of the child of the marriage to the wife, (2) deleting the provision for visitation of the child, (3) deleting its award of capital stock of Island Business Machines, Inc., to the wife, (4) deleting its provision for the payment of counsel fees to the wife’s attorney, and (5) adding a provision for interest on $27,442.40, i.e., one half of the $54,884.80 the trial court found the husband withdrew from the parties’ joint bank accounts with the Central Federal Savings and Loan Association and the Westbury Federal Savings and Loan Association.

However, the husband insists that the award to him of $27,442.40 in the ninth decretal paragraph of the judgment imposes a constructive trust on funds held "by the plaintiff in separate bank accounts”. The wife, on the other hand, contends that, contrary to the statement in the Appellate Division’s decision that the paragraph does not require the wife to pay to the husband 50% of the proceeds of the two joint bank accounts "since he in fact has already withdrawn the funds”, that is precisely what the ninth paragraph does. To resolve any ambiguity, we believe resettlement of the ninth decretal paragraph is appropriate.

Accordingly, the case should be remitted to the Supreme Court, Nassau County, for resettlement of the ninth decretal paragraph of the judgment and, except as so modified, the order of the Appellate Division should be affirmed, without costs.

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

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


text:
    Ethel Kornblut, Individually and as Administratrix of the Estate of Fred Kornblut, Deceased, and as Parent and Natural Guardian of Belinda J. Kornblut and Another, Infants, Appellant, v Chevron Oil Company et al., Respondents, et al., Defendants.
    Argued October 18, 1979;
    decided November 27, 1979

      APPEARANCES OF COUNSEL

      Jack S. Dweck, Harvey I. Sladkus and Edwin McMahon Singer for appellant.

      Joseph D. Ahearn, George S. Pickwick and Michael Majewski for Lawrence Ettinger, Inc., respondent.

      John F. Morrison and Jeffrey Silberfeld for Chevron Oil Company, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice James D. Hopkins at the Appellate Division (62 AD2d 831).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Judge Fuchsberg dissents and votes to reverse in the following opinion.

Fuchsberg, J.

(dissenting). The heart of the issue on this appeal is whether, under the circumstances, the obligations undertaken by respondents Chevron and Ettinger pursuant to Chevron’s contract with the State Thruway Authority were sufficient to impose liability on the respondents for decedent’s injuries and for his wrongful death. It comes to us in the context of a case in which the knowing and long delay of an officially contracted road service to respond to a disabled vehicle on the Thruway compelled the vehicle’s invalided operator to engage in what proved to be a fatal course of self-help. To the determination of the liability question thus posed I would summon the following principle from the Restatement of the Law of Agency: "An agent who, by promise or otherwise, undertakes to act for his principal under such circumstances that some action is necessary for the protection of the person or tangible things of another, is subject to liability to the other for physical harm to him or to his things caused by the reliance of the principal or of the other upon his undertaking and his subsequent unexcused failure to act, if such failure creates an unreasonable risk of harm to him and the agent should so realize” (emphasis mine). (Restatement, Agency 2d, § 354; see, also, § 353.) Additionally, I observe that the Reporter’s Notes indicate that it is not alone "[t]he terms of a contract with the principal [which] measure the liability of the agent to the third person”. Rather, it tells us that the crucial fact is that "[t]he agent causes the damage by undertaking to afford protection and subsequently failing to give it” (p 126).

I would therefore start and end my analysis with a consideration of whether all of the five factors defined by section 354 emerge from the circumstances under which the undertaking to act was entered into in this case — i.e., (1) whether "some action was necessary for the protection of the person of another”, here the plaintiff motorist, (2) whether there was reliance on Chevron’s agreement to act, particularly since it was expressly understood that the agency thus granted was to be exclusive, (3) whether there was in fact a subsequent unexcused failure to act, (4) whether such failure created an unreasonable risk of harm, and (5) whether those who undertook the responsibility to act should have been aware of the risk.

Taking these criteria ad seriatim, we first note that the need for the protection of highway users like the decedent is apparent from the. fact that, as the Appellate Division itself put it, "the New York Thruway is a limited access toll highway, designed to move traffic at the highest legal speed * * * [so that] Any disabled vehicle on the road impeding the flow of traffic may be a hazard” (62 AD2d 831, 836). It requires no leap of the imagination to appreciate that the danger is especially great for the traveler in the stranded automobile.

Second, as to the element of reliance, the contract was explicit in its grant of an exclusive agency to Chevron (and, through it, to Ettinger) to provide roadside automotive service. Indeed, in return, Chevron agreed that it would provide a sufficient number of emergency vehicles to assure that its service would be so "rapid” and "efficient” that a response to the scene of a breakdown like that of the decedent’s generally would take place within a maximum of 30 minutes; it certainly did not contemplate the more than three hours of nonfeasance that already had elapsed by the time the decedent here was injured.

Third, addressing the "subsequent unexcused failure to act”, the absence of response to the admitted call for help is undisputed, and whether it was excusable under the agreement appears to have been a matter peculiarly appropriate for resolution by the jury.

Fourth, the unreasonable risk of harm from failure to act was to be seen in the rapidity with which cars could be expected to move on this superhighway, the paucity of access roads by which motorists could find other avenues of assistance, the commonness of vehicle malfunctions and the frequency with which automobiles are lawfully operated by persons whose lack of physical vigor, as with decedent here, would make resort to self-help in a roadway emergency a potentially complicating rather than an alleviating factor.

Fifth, realization of the risk to one in the position of the decedent was not only to be inferred from the foregoing, but is almost inherent in the actual language of the agreement itself, which, among other things, speaks to Chevron’s obligation to avoid "endangering * * * the travelling public”.

Reliance on this matching of circumstances and the rule that the Restatement bespeaks is not only consonant with other respected authority (see, e.g., United States v Hull, 195 F2d 64, 69 [Magruder, Ch. J.]; Erie R. Co. v Stewart, 40 F2d 855, 857), but it is also not interdicted by New York law. For one thing, Moch Co. v Rensselaer Water Co. (247 NY 160), on which defendants rely, espouses a view which the criticisms of posterity have not left unmarred (see Seavey, Mr. Justice Cardozo and the Law of Torts, 52 Harv L Rev 372, 391-393 [describing the decision as a departure from Cardozo’s “accustomed method of facing the realities”]; Doyle v South Pittsburgh Water Co., 414 Pa 199, 212-214; Reimann v Monmouth Consolidated Water Co., 9 NJ 134, 140, 154 [Vanderbilt, Ch. J., and Heher, J.]; see, generally, Seavey, Waterworks Cases and Stare Decisis, 66 Harv L Rev 84).

In any event, Moch is distinguishable on its facts. For, though under the agreement Chevron’s service was being provided at the behest of the Thruway Authority, it was to be furnished directly to, and paid for by, the decedent and other similarly situated highway users. In contrast, in Moch the obligation of the party who was to furnish the water which was the subject matter of the contract was to do so directly to the municipality with which it had made its contract, and not to residents like the plaintiff to whom the city was free to supply it thereafter.

Moreover, adherence to the Restatement’s considered views requires no more than a return to first principles (Little v Banks, 85 NY 258; see, also, Mollino v Ogden & Clarkson Corp., 243 NY 450, 455-456).

Finally, it seems to me that to ignore these dictates is to perpetuate an unwarrantedly rigid adherence to legal categories in situations where the less flexible doctrines of the law of contracts, of which the law of agency is but an offshoot, are necessarily intertwined with the more fluid ones that distinguish the law of torts (see People v Hobson, 39 NY2d 479, 489). All the more is this so in the case before us now, since the frame of circumstantial reference in which the contract arose could leave little doubt that a departure from the contractual obligation would give rise to tortious consequences.

I would therefore find, as Mr. Justice Aronin did at Trial Term, that the plaintiff proved a prima facie case, and, accordingly, would reverse the order appealed from and remit the case to the Appellate Division for consideration of the facts.

Order affirmed, etc.


text:
    In the Matter of Robert Witteck, Appellant, v Superintendent of Wallkill Correctional Facility et al., Respondents.
    Argued October 19, 1979;
    decided November 27, 1979

      APPEARANCES OF COUNSEL

      Joel P. Gorham, Daniel J. Steinbock and David Steinberg for appellant.

      Robert Abrams, Attorney-General (Frederick R. Walsh and William J. Kogan of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the opinion by Mr. Justice Louis M. Greenblott at the Appellate Division (65 AD2d 249).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Charles E. Hopfl, an Attorney, Appellant.
    Argued November 14, 1979;
    decided November 29, 1979

      APPEARANCES OF COUNSEL

      Andrew M. Lawler, Jr., Elliot L. Evans and Dennis E. Milton for appellant.

      Nicholas C. Cooper and Michael Alan Schwartz for Departmental Disciplinary Committee for the First Judicial Department, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs. Subdivision 4 of section 90 of the Judiciary Law mandates automatic disbarment upon conviction of a felony. It is clear that under this section as construed prior to its recent amendment (L 1979, ch 674), an attorney ceases to be a member of the Bar when convicted of a Federal felony, even one that has no New York analogue (Matter of Thies, 45 NY2d 865; Matter of Chu, 42 NY2d 490). Thus, upon his conviction under section 645 of title 15 of the United States Code, a felony under Federal law, appellant was automatically disbarred and it was proper for the Appellate Division at that time to strike his name from the roll of attorneys. The statutory sanction was rendered no less operative because the plea had been entered pursuant to North Carolina v Alford (400 US 25). Although appellant did not admit his guilt, nonetheless he stood convicted of a felony.

In light of this disposition, it is unnecessary to determine whether the Federal offense has a New York counterpart and thus, we do not pass on that question which appropriately should.be left to the Appellate Division to consider anew upon proper application. Although the recent amendment to section 90 does not apply on this appeal, we note that appellant, if so advised, is free to make application to the Appellate Division for any relief that may be available.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    The People of the State of New York, Respondent, v Charlie Holland, Appellant.
    Argued October 19, 1979;
    decided November 29, 1979

      APPEARANCES OF COUNSEL

      Donald L. Austin, Public Defender (Frank E. Blando of counsel), for appellant.

      Richard D. Enders, District Attorney (Michael E. Daley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress granted, and a new trial ordered.

On the present record, it cannot be said that the People carried their heavy burden of proving defendant’s statements voluntary beyond a reasonable doubt (see, e.g., People v Anderson, 42 NY2d 35, 38-39). Initially, the prosecution wholly failed to justify defendant’s lengthy prearraignment incarceration, which spanned a period of some 48 hours and encompassed portions of three different days. While the People now assert that no Judge was available for the arraignment, no finding to that effect was made by the suppression court. Actually, the court found only that there was no regular session of City Court scheduled. The People do not explain the failure to contact a local Judge at home or in chambers to conduct the arraignment. This unwarranted delay, although a suspect circumstance (cf. People v Blake, 35 NY2d 331, 340), is but one factor to be considered in assessing the voluntariness of a confession. In this case, there is more.

During the delay, defendant was subjected to periods of prolonged and vigorous interrogation. He was permitted to languish in his cell at selected intervals and then returned for further questioning at the whim of his interrogators. He was led to believe that if he confessed he would not be incarcerated, nor be returned to Louisiana on an outstanding fugitive warrant, but rather would be assigned to a mental facility. At one point, when defendant began to display an incipient recognition of his need for counsel, an Assistant District Attorney neatly dissuaded defendant from exercising his rights. In short, the circumstances bespeak such a serious disregard of defendant’s rights, and were so conducive to unreliable and involuntary statements, that the prosecutor has not demonstrated beyond a reasonable doubt that the defendant’s will was not overborne.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Richard A. Hennessy, Jr., as District Attorney of Onondaga County, Appellant.
    Argued November 15, 1979;
    decided November 29, 1979

      APPEARANCES OF COUNSEL

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Edward Z. Menkin of counsel), for appellant.

      Peter D. Andreoli, Special Deputy Attorney-General (Norman S. Hatt of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs. The Appellate Division treated the proceeding as one seeking a writ of prohibition and the Special Prosecutor’s cross motion as a motion to dismiss the petition and as such, granted the motion to dismiss.

The Appellate Division correctly determined that the Special Prosecutor had jurisdiction to conduct this investigation and that no relief should be available to the District Attorney at the Extraordinary Term of Supreme Court, the court by which issues of this sort must be determined (see Executive Order No. 43, 9 NYCRR 3.43). Executive Order No. 42 (9 NYCRR 3.42), from which the Special Prosecutor’s authority emanates, confers jurisdiction to investigate alleged unlawful acts "arising out of, relating to, or in any way connected with the offer, payment, acceptance or solicitation of funds or other consideration in connection with * * * the obtaining or retaining of any contract or other benefit from a public employee, public officer, public agency or the State or any of its political subdivisions”. It cannot be said that the public employee’s alleged conduct did not involve a receipt of funds or some other consideration in connection with the obtaining or retaining of a public contract. Since the executive order states that it applies to acts or omissions "occurring heretofore or hereafter”, there was no basis for the conclusion that the activities must relate to a time prior to the issuance of the order. Thus, the investigation at issue here falls squarely within the ambit of the executive order (see Mulroy v Carey, 43 NY2d 819; cf. People v Rosenberg, 45 NY2d 251).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    In the Matter of Amelio P. Marino et al., Respondents, v Allen M. Myers, a Justice of the Supreme Court of the State of New York, Appellant.
    Argued November 19, 1979;
    decided November 29, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Patricia Armstrong, Shirley Adelson Siegel and Eileen Shapiro of counsel), for appellant.

      Harvey A. Kaminsky for respondents.
   OPINION OF THE COURT

Judgment affirmed, without costs. There was no error of law in the disposition at the Appellate Division.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Joshua A. Becker, M. D. & Associates, P. C., Appellant, v State of New York, Respondent.
    (Claim No. 59429.)
    Argued October 16, 1979;
    decided November 29, 1979

      APPEARANCES OF COUNSEL

      John Van Voorhis and Eugene Van Voorhis for appellant.

      Robert Abrams, Attorney-General (George M. Thorpe and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. Insofar as appellant seeks to recover on a theory of money had and received, no claim therefor was properly asserted. We would note that we do not construe the decision in the Court of Claims as holding that the agreement allegedly entered into between the Downstate Medical Group and the State University of New York in 1969 was not approved by the State Comptroller. Rather, the court held that no agreement between appellant and the State University has been approved by the Comptroller (see State Finance Law, § 112).

Meyer, J.

(dissenting). While I agree that a claim for money had and received was not properly presented, I cannot concur in the majority decision which by an overly technical interpretation of section 112 of the State Finance Law countenances what amounts to a fraud on the claimant.

Downstate Medical Center is a teaching hospital which is part of the State University of New York. Students are taught by staff members who are under teaching contracts with the State University. To reduce the outlay for direct salary expense the staff physicians are permitted "the right of limited professional and independent clinical practice” under contracts with the university. Thus in 1969 an agreement, approved by the Comptroller, was entered into between the State University and the "Downstate Medical Group”, which represented the staff members of the Departments of Pathology, Radiology, Rehabilitation and Medicine at the Downstate Medical Center.

Under the agreement Downstate Medical Center billed the patients and collected payment for all services rendered in their case, retaining 68% of the receipts and remitting the other 32% to the medical group for the professional services of its members.

On December 31, 1970 Doctor Joshua A. Becker, the Chairman of the Department of Radiology at Downstate Medical Center, organized a professional corporation known as Joshua A. Becker, M. D. & Associates, P. C. The professional corporation consisted of the members of the Department of Radiology, and it took over from the Downstate Medical Group performance of the services the group had provided to the Department of Radiology under the terms of the 1969 agreement. No written agreement between the State University and the Joshua Becker professional corporation was ever executed.

Nevertheless, the State Comptroller’s office honored the professional corporation’s vouchers for three months until April 1, 1971. Though the Comptroller refused to make payment thereafter, the radiologists continued to provide professional services, but when the vouchers they submitted remained unpaid the corporation filed a claim in the Court of Claims for services rendered between April 1, 1971 and December 31, 1973. That claim was settled on June 5, 1975 under circumstances detailed below. The instant action stems from claimants’ demand for compensation for services rendered between January 1 and December 31, 1974.

In resolving this controversy it is critical to focus on what transpired on June 5, 1975 when the parties settled their first dispute. That claim was resolved when Deputy Comptroller Martin Ives made the following statement on record:

"I have reviewed a letter of June 3rd, 1975 from James F. Kelly, Executive Vice Chancellor of the State University, that the University requires the continuing services of Joshua A. Becker & Associates at the Downstate Medical Center in the immediate future, and recommending the discontinuance of the present litigation based upon a contemplated administrative disposition by the State University.
"On the basis of Mr. Kelly’s letter the Department of Audit and Control will approve payment of an amount agreed upon by the State University and Joshua A. Becker & Associates for the period ending December 31st, 1973. However, nothing contained in this statement should be construed as an admission of liability on the part of the State of New York with respect to the matters presently in litigation.”

Although the Deputy Comptroller did not "admit liability”, his agreement to pay the 1971-1973 claim based on the fact "that the University requires the continuing services of Joshua A. Becker & Associates at the Downstate Medical Center in the immediate future” and in light of a "contemplated administrative disposition” was an approval by the Deputy Comptroller, sufficient to satisfy the requirements of section 112 of the State Finance Law of the professional corporation’s rendition of services to the university for the period between April 1, 1971 and December 31, 1973 and continuing to render those services after June 5, 1975, and, therefore, necessarily was an approval of the corporation’s rendition of service between January 1, 1974 and June 4, 1975. Those services were rendered or to be rendered under the arrangement pursuant to which the group had provided services and pursuant to which payment for the period ending December 31, 1973 was being made, subject only to such change in that arrangement as might be made through further negotiation. That the Deputy Comptroller sought to limit the effect of the settlement as an admission does not mean that claimant was to receive nothing for its services if the administrative disposition did not materialize. Having approved the arrangement with the professional corporation in order to obtain the continuing services of its members, and having accepted 100% of the moneys resulting from the corporation’s members’ performance of services, the Comptroller must be held to have accepted the risk that an arrangement for lesser payments than 32% might not be worked out administratively.

To hold otherwise is to permit the Comptroller to use section 112 of the State Finance Law as an instrument of fraud, a result the Legislature cannot be presumed to have intended. Nor can it be said that the policy of safeguarding the public purse against extravagance or corruption enforced in cases such as Gerzof v Sweeney (22 NY2d 297) would be denigrated by a holding in favor of claimant. What we deal with here is not an impersonal procedure such as competitive bidding, which was involved in Sweeney, but with whether an official vested with the sole power of approval with respect to the rendition of services can approve the arrangement under which those services have been and are being rendered without incurring an obligation on the part of the State to pay for all of the services rendered.

Chief Judge Cooke and Judges Jasen, Gabrielli and Wachtler concur in memorandum; Judge Meyer dissents and votes to reverse in a separate opinion in which Judge Fuchs-berg concurs; Judge Jones taking no part.

Order affirmed.