author: Titone, J. Bellacosa, J.

text:
    Bernard McCummings, Respondent, v New York City Transit Authority, Appellant.
    Argued January 12, 1993;
    decided April 5, 1993

      APPEARANCES OF COUNSEL

      Lawrence Heisler, Brooklyn, Albert C. Cosenza and Lawrence A. Silver for appellant.

      Joel A. Brenner, New York City, and David Breitbart for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as it affirmed the judgment of Supreme Court should be affirmed, with costs.

A jury awarded a verdict for personal injuries sustained by plaintiff who was permanently paralyzed from the midchest down when his spinal cord was severed by a bullet fired by Officer Rodriguez, an employee of defendant. The theory of plaintiffs case as submitted to the jury was common-law negligence — i.e., that Officer Rodriguez, in employing deadly physical force in an effort to apprehend plaintiff, did not exercise that degree of care which would reasonably be required of a police officer under similar circumstances (see, e.g., Flamer v City of Yonkers, 309 NY 114; Herndon v City of Ithaca, 43 AD2d 634, 635; Prosser and Keeton, Torts § 26, at 155-156 [5th ed]; 2C Warren, Negligence, Policemen and Firemen, § 84.01 [1] [b] [4th ed 1990]). According to plaintiffs testimony and other proof, plaintiff was unarmed and running away from the scene of the attempted robbery when Officer Rodriguez shot him in the back. The Appellate Division affirmed, with one dissent, and granted defendant leave to appeal to this Court.

The principal question is a narrow one: whether the evidence in the record warrants the trial court’s denial of defendant’s dismissal motion made at the close of plaintiff’s case and renewed at the close of the evidence. In deciding whether plaintiff has made out a prima facie case for submission to the jury, of course, a court must be "guided by the rule that the facts adduced at the trial are to be considered in the aspect most favorable to [plaintiff] and that [plaintiff is] entitled to the benefit of every favorable inference which can reasonably be drawn from those facts” (Sagorsky v Malyon, 307 NY 584, 586). It is settled that negligence cases by their very nature do not lend themselves to summary dismissal "since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination” (Ugarriza v Schmieder, 46 NY2d 471, 474; see also, Andre v Pomeroy, 35 NY2d 361, 364-365).

Here the evidence presents sharp factual issues. The key question — whether Rodriguez saw a violent crime in progress —is disputed. Plaintiff testified that when he was shot he had fled down a flight of stairs and was already some distance away from the scene of the attempted robbery and from Officer Rodriguez who was at the top of the stairs. Plaintiff stated that he was running away from Officer Rodriguez when Officer Rodriguez fired and hit him twice in the back. Officer Rodriguez, on the other hand, testified that the shooting occurred at the top of the stairs. Plaintiff and his companion, according to Rodriguez, were lunging toward him and only four feet away when he fired. Corroborating plaintiff’s testimony are the following items of proof: plaintiff was shot in the back; blood was found only on the platform at the bottom of the stairs where plaintiff was lying; according to expert testimony plaintiff could not have run down the stairs after the bullet severed his spinal cord; both the victim and the officer accompanying Rodriguez testified that plaintiff did not lunge at Rodriguez. The victim himself testified that he was standing against the wall when the officers approached, and plaintiff fled down the stairs before shots were fired.

Defendant cites the Supreme Court’s decision in Tennessee v Garner (471 US 1) and argues that that case, in some way, entitles it to a dismissal. But the rule in Tennessee v Garner deals with the protections guaranteed by the Federal Constitution for the person being arrested — not for the arresting police officer or the municipality. It establishes the minimum standard of care which a police officer must exercise in making an arrest to avoid violation of the arrestee’s Fourth Amendment rights. Contrary to defendant’s contention, Tennessee v Garner does not create a limitation on plaintiff’s right to recover or a shield of immunity for a municipal defendant in a common-law negligence action. Even if the constitutional standard of care under Tennessee v Gamer were adopted as the precise standard for common-law negligence, there would still be factual issues requiring a trial including, most significantly, whether it was reasonable for Rodriguez to believe that the use of deadly force was appropriate and necessary under the circumstances.

Nor, again contrary to defendant’s contentions, is there any basis for dismissal under Penal Law § 35.30. Penal Law § 35.30 sets forth the circumstances when a police officer, charged with criminal conduct for using deadly physical force in making an arrest, can claim that the conduct was justified and, therefore, not criminal. The question of whether a police officer’s conduct is justified in a criminal case is, of course, a factual matter for the jury. Similarly, if Penal Law § 35.30 were used as the sole measure of the standard of care required of Officer Rodriguez here, there would be triable issues for the jury including whether Rodriguez could have reasonably believed that deadly force was appropriate and necessary under the circumstances.

Although the dissenters would have it otherwise, this is a negligence case governed not by Federal law but by the common law of this State. In deciding the case we must, of course, take the view of the evidence most favorable to the plaintiff. The factual issues were sharply defined: whether Officer Rodriguez came upon the scene during or after the mugging; whether Officer Rodriguez saw any evidence that plaintiff had committed a violent crime; whether, firing from the top of the stairs, Officer Rodriguez hit the unarmed plaintiff in the back and severed his spinal cord while he was running away at the bottom of the stairs or whether Rodriguez hit plaintiff while he was four feet away and lunging at Rodriguez. It was plaintiff’s right to have these factual issues decided by the jury.

The fatal flaw in both dissents is their failure to view the facts in the light most favorable to plaintiff, which the law requires us to do. Instead, the dissent of Judge Bellacosa states that a team of officers "witnessed plaintiff McCummings rummaging through [the victim’s] pockets as another mugger held him down in a choke hold” and that "[c]oncededly, [the victim] suffered serious bodily harm,” while Judge Titone’s dissent states the police officers "came upon what was clearly a mugging” with a scene that "left no room for doubt that a crime of violence * * * had just occurred.” The dissents neglect the crucial fact that the most favorable view of the evidence for plaintiff is that Officer Rodriguez did not see a mugging and did not know whether a violent crime had been threatened or committed. Deadly force of course may be appropriate in some circumstances to prevent the flight of a violent felon. However, this record does not support the conclusion, as a matter of law, that deadly force was used for this purpose.

To be sure, plaintiff committed a crime but it is the province of the criminal, not the civil, justice system to punish him for his wrong. He has been convicted and will be dealt with as the law requires. In fulfilling our judicial responsibilities, we may not, as is suggested, depart from established principles of law to avoid what may to some seem to be an unacceptable resolution of the factual disputes.

Defendant’s remaining contentions are either unpreserved or without merit.

Titone, J.

(dissenting). I dissent. It is undisputed that the law permits police officers to use physical force, and even deadly physical force, when reasonably necessary to prevent the escape of a fleeing felon who has committed a violent crime. Nothing in the recent Supreme Court case law contradicts that obvious legal precept, whose vitality is so critical to the preservation of an orderly society (see, Graham v Connor, 490 US 386; Tennessee v Garner, 471 US 1). Since the archetypal facts in this case fit squarely and neatly within the contours of this fundamental axiom governing law enforcement’s prerogatives, I would hold that the police officers’ actions in this case were, as a matter of law, reasonable and that, accordingly, plaintiff’s tort claim should not have been submitted to the jury.

Like my dissenting colleague Judge Bellacosa, I begin with the recognition that questions involving the reasonableness of a particular actor’s conduct are ordinarily reserved for resolution by a trier of fact (see, e.g., People v Harrison, 57 NY2d 470, 477-478; Ugarriza v Schmieder, 46 NY2d 471, 475-476; Andre v Pomeroy, 35 NY2d 361; Sadowski v Long Is. R. R. Co., 292 NY 448, 455). However, this "established” principle of procedural law (see, majority mem, at 928) does not provide an automatic entree to a jury (Andre v Pomeroy, supra). As we have noted on many occasions, the courts still have the duty to "make the threshold determination as to whether the plaintiff, by introducing adequate evidence on each element, has made out a case sufficient in law to support a favorable jury verdict” (Basso v Miller, 40 NY2d 233, 242). Where such a threshold showing has not been made, " 'the case should go no further’ ” and the claim should be dismissed "as a matter of law” (Akins v Glens Falls City School Dist., 53 NY2d 325, 332).

The need for thoughtful application of these principles with a view toward weeding out truly meritless claims is particularly acute in cases such as this involving claims of excessive force by the police. Confrontations between police officers and criminal suspects often — indeed, almost necessarily — involve an element of force. Thus, some clear boundaries for what does and does not constitute "reasonable” force must be delineated as a matter of law, lest every pursuit and arrest resulting in injury lead to a fully litigated tort case that must be submitted to a jury. The specter of civil juries regularly and routinely weighing the "reasonableness” of police conduct during the course of an arrest in much the same manner as they would weigh the reasonableness of an automobile driver’s responses to a traffic situation is an unacceptable outcome, particularly in light of the likely chilling effect that such an outcome would have on the efforts of law enforcement personnel. In the presence of such weighty policy considerations, we should not be hesitant to dismiss claims of excessive force where the police conduct in question can readily be characterized, as a matter of law, as reasonable.

This case provides a classic illustration of when such a disposition is appropriate. Responding promptly to the 72-year-old victim’s cry for help, the police in this case came upon what was clearly a mugging. What the officers saw and heard when they arrived at the scene left no room for doubt that a crime of violence involving at least two attackers and a "lookout” had just occurred. Further, as even plaintiff’s evidence indicated, the attackers attempted to flee down a flight of steps and through a subway passageway as soon as they were alerted to the presence of the police. Given the immediacy of the occurrence, the clear risk of an escape into the labyrinthine subway system and the obvious need to act quickly and without reflection, I would conclude, without reservation, that the arresting officer acted reasonably as a matter of law when he fired his gun at the fleeing suspect in an effort to prevent him from eluding arrest and remaining free to commit other violent crimes against other innocent victims. Any other conclusion would cast a serious pall on the ability of the police to do the job society has assigned them: preventing crime and apprehending violent criminals.

Bellacosa, J.

(dissenting). Affirming this plaintiff’s $4.3 million jury award against the Transit Authority is not required or supportable under sound legal principles. This case should not be driven by general nostrums pertaining to ordinary negligence cases. Therefore, I respectfully dissent, vote to reverse the order of the Appellate Division, and would dismiss the plaintiff’s case outright.

Plaintiff McCummings was one of the muggers who attacked Jerome Sandusky, 72 years of age, in the 96th Street-Eighth Avenue line subway station on June 28, 1984. A team of on-duty undercover transit police officers responded to Sandusky’s cry for help, and witnessed plaintiff McCummings rummaging through Sandusky’s pockets as another mugger held him down in a choke hold. Concededly, Sandusky suffered serious bodily harm.

On the most favorable view of the evidence to plaintiff, he was caught in the act of committing an all-too-common subway attack on a particularly vulnerable target of opportunity. He broke off from the attack only to avoid arrest by attempting to flee the crime scene after an alert from his lookout. The officer, who fired his weapon and seriously wounded the perpetrator-turned-plaintiff, testified that the plaintiff and another of the muggers, only several feet away, lunged at him when he rushed into the crime scene. The officer’s attempt to rescue the victim and arrest the culprits consumed only seconds. As a defendant in the criminal proceeding, the plaintiff in this civil action pleaded guilty to attempted robbery in the second degree. Ironically, his criminal sentence is capped by a multimillion dollar recovery against the citizenry at large.

The dispositive issue is whether the defendant City Transit Authority’s motion to dismiss the excessive force civil claim by McCummings should have been granted. I conclude that the evidence irrefutably supports the view that the officer acted reasonably and without excessive force, as a matter of law, under Penal Law § 35.30, Tennessee v Garner (471 US 1) and Graham v Connor (490 US 386). Thus, I am baffled by the inversion of justice wrought in this case. The New York justification statute and the United States Supreme Court precedents combine to create a special duty universe within which to assess the standard of care by which to measure the officer’s response to an emergency violent crime situation.

That special duty universe involving municipal tort liability is ignored by the Court. Instead, it treats this case as a plain negligence claim governed by pro forma rubrics. The transit officers’ paramount job was to stop the criminal assault and robbery, and to apprehend those committing the dangerously illegal acts in their presence. Indeed, that was the special obligation of this antimugger subway patrol unit. These are features which make this case different and call for distinct, realistic and proportionate rules of governmental responsibility and judicial review.

The fact that reasonableness of conduct, including that of municipal agents, is ordinarily a jury question (see, Dunn v State of New York, 29 NY2d 313; Stanton v State of New York, 26 NY2d 990, rearg denied 27 NY2d 817), does not compel the result here driven by procedural generalities. In effect, the "majority would delegate to the jury the responsibility to determine the applicable social policy, thus abdicating the judicial role” (Basso v Miller, 40 NY2d 233, 243 [Breitel, Ch. J., concurring]).

This Court has expressly recognized that not every case in which the ultimate issue is reasonableness must end with a jury. The Court has instead manifested prudential suppleness in its substantive and procedural rules governing municipal liability. Thus, in Akins v Glens Falls City School Dist. (53 NY2d 325, rearg denied 54 NY2d 831), the Court found the question of a municipal duty of reasonable care resolvable as a matter of law. Similarly, in Andre v Pomeroy (35 NY2d 361), this Court reversed an order of the Appellate Division and granted the plaintiffs motion for summary judgment that the defendant was negligent as a matter of law. While the Court acknowledged the rarity of using summary judgment in negligence cases, it realistically ruled that the defendant’s negligence was "conclusively established,” since her behavior "could not be considered reasonable conduct under any standard and it does not take a trial to resolve that point” (id., at 365). The Court’s refusal to apply that principle here for another exceptional situation, on the opposite side of the liability spectrum, is rigidly uneven, because if negligence can be conclusively established as a matter of law on summary judgment, all the more should lack of negligence be susceptible to a directed verdict motion, after all plaintiffs evidence has been presented (see also, Carter v City of Chattanooga, 803 F2d 217, on reh 850 F2d 1119, cert denied 488 US 1010; Pruitt v City of Montgomery, 771 F2d 1475, reh denied 777 F2d 704; Ramos Ayala v Diaz Martinez, 707 F Supp 75).

Since the eclipse of general municipal immunity, this Court has not shirked its common-law responsibility of restoring appropriate policy-based barriers to otherwise open-ended municipal liability. In Weiss v Fote (7 NY2d 579, rearg denied 8 NY2d 934), the Court determined that the State could not be held liable for the alleged faulty placement of a traffic signal. The Court recognized the exercise of municipal expert discretionary judgment in planning for the public safety as follows:

"Nothing in the legislative history of the Court of Claims Act * * * indicates that the waiver provision was designed to override the well-defined and carefully reasoned body of law governing the measure of the State’s responsibility for highway safety. The city’s defense which we here sustain rests not on any anachronistic concept of sovereignty, but rather on a regard for sound principles of government administration and a respect for the expert judgment of agencies authorized by law to exercise such judgment. In the area of highway safety, at least, it has long been the settled view * * * that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits” (id., at 588 [emphasis added]).

Realism in the realm of public safety is the touchstone of that case and its holding.

By contrast, the instant case approaches the surreal zone. It involves split-second decisions by public safety employees made in the most dangerous and volatile circumstances — here, transit officers rushing into ongoing, highly dangerous and violent criminal activity. These public safety employees are surely no less expert than city planners who decide, with relaxed reflection, where a stop sign or a traffic signal belongs. The Weiss rationale thus helps to support dismissal of this case and avoidance of counterproductive second-guessing exercises (see, Dunn v State of New York, 29 NY2d 313, supra; Stanton v State of New York, 26 NY2d 990, supra).

Allowing criminal defendants involved in the commission of violent felonies to reach civil juries as a matter of course on the issue of excessive force taunts the concept of evenhanded justice. This plaintiff, a convicted mugger, can readily gain a lottery-size verdict against the public fisc while faultless citizen victims, like the elderly person in this case, are blocked from even their day in court for gross police nonfeasance under special duty municipal barriers (contrast, Weiner v Metropolitan Transp. Auth., 55 NY2d 175; see, e.g., Kircher v City of Jamestown, 74 NY2d 251; Merced v City of New York, 75 NY2d 798; see also, Santangelo v State of New York, 71 NY2d 393). The fact that some distinctions emerge in cases involving various municipal duty categories underscores the need for a limiting analytical and dispositional path. Notably, our Court has also withheld negligence recoveries from injured persons, as a matter of policy line drawing, when they assume certain risks (see, e.g., Turcotte v Fell, 68 NY2d 432; Akins v Glens Falls City School Dist., 53 NY2d 325, supra). If nothing else, this plaintiff should be deprived of his windfall against the municipal pocketbook on the public policy and theory that he assumed the risk of his injuries as part of the hazards of his chosen predatory pursuits.

In Tennessee v Garner (471 US 1, supra) and Graham v Connor (490 US 386, supra), the United States Supreme Court set standards for the use of force to apprehend a suspect in a nonpersonal, property-type crime. Gamer added, however, that "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape” (471 US, at 11, supra). That is precisely this case. Thus, while the reasonableness inquiry is an objective one (Graham v Connor, supra, at 397; see also, People v Goetz, 68 NY2d 96), where, as here, the facts and circumstances fall even more compellingly within the template painted by Garner — a crime of force in actual progress against a person in a place of public transportation — the use of deadly force can be found to be reasonable and justifiable as a matter of law in a civil lawsuit context.

Furthermore, the Court’s holding today undermines the Legislature’s exceedingly plain policy on justification, expressed in the pertinent self-defense provision of the Penal Law, section 35.30:

"1. A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he reasonably believes to have committed an offense * * * may use deadly physical force for such purposes only when he reasonably believes that:
"(a) The offense committed by such person was:
"(i) a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person”.

That statute reflects, with Gamer, the public policy that the use of deadly force to apprehend a criminal in the actual commission of or escape from a violent felony is unquestionably lawful and reasonable. Plaintiff conceded as much by his own evidence and theory in the civil case and by his plea of guilty in the criminal case. I cannot imagine a more precise tracking of the words and commands of Penal Law § 35.30 than the actions taken by the officer on this subway platform.

The Court disregards the statute’s and Garner’s cogent relevancy by sidetracking the procedural context of the situation. Moreover, its characterization of the pertinent rule as a one-way proposition benefitting only criminal actors is puzzling. Garner, like this case, was a civil suit for damages sustained as a result of the alleged use of excessive force in apprehending a suspect. The United States Supreme Court plainly intended that its Fourth Amendment analysis for assessing the lawfulness of the use of deadly force should also be applied to the issue of reasonableness of the actions of the law enforcement officials and their municipal superiors (Ten nessee v Gamer, 471 US, at 22, supra). In now holding that the standard enunciated in Gamer applies only to the issue of the "arrestee’s Fourth Amendment rights” (majority mem, at 927), the Court wastes Gamer’s guidance. The anomaly inflicted is that "[t]he imposition of such liability, in addition to posing a crushing financial burden, might well discourage” law enforcement officers and their superiors from acting to promote the general welfare (O’Connor v City of New York, 58 NY2d 184, 191, rearg denied 59 NY2d 762). Tort law, after all, is intended to shape and conform conduct to reasonable patterns.

In sum, the application in this case of staple negligence nostrums of a procedural and substantive variety will result in inappropriate cases being universally pitched to juries, whose potentially excessive determinations are beyond this Court’s review powers on almost all issues. As foreseen in O’Connor v City of New York (supra), the devastating toll includes shifting the primary concern of law enforcement employees from ensuring the safety of the public to ensuring that they and their municipal employers are not exposed to staggering money judgments for, in effect, doing their jobs of crime prevention. The costs to society of such calculated indifference to innocent citizens in dire need are compounded by the payments of large judgments out of a diminishing public purse. This case guarantees that society will suffer the double albatross of both those costs. This plaintiff mugger may have been interrupted and prevented from stealing Sandusky’s wallet, but he ultimately makes crime pay by picking the public’s pocket for the big score of $4.3 million plus interest.

Chief Judge Kaye and Judges Simons, Hancock, Jr., and Smith concur; Judge Titone dissents in part and votes to dismiss the appeal in part and reverse in part in an opinion; Judge Bellacosa separately dissents in part and votes to dismiss the appeal in part and reverse in part in another opinion.

Order, insofar as it affirmed the judgment of Supreme Court, affirmed, with costs, in a memorandum. Appeal, insofar as taken from that portion of the Appellate Division order which affirmed the order of Supreme Court denying defendant’s postjudgment motion to vacate and set aside the verdict and judgment, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution.

      . The appeal, insofar as it is taken from that portion of the Appellate Division order which affirmed the order of Supreme Court denying defendant’s postjudgment motion to vacate and set aside the verdict and judgment, should be dismissed for nonfinality.

      . Plaintiff’s second cause of action (for defendant’s negligent screening, training and supervision of its employees) and his third cause of action (for violation of his Fourth Amendment rights brought under 42 USC § 1983) were both dismissed at the close of plaintiff’s case.

       It is true, as the majority observes (majority mem, at 928), that, according to plaintiffs evidence, Officer Rodriguez might not have actually seen the mugging. Nonetheless, even plaintiff acknowledges that the officers arrived at the scene in time to hear the 72-year-old victim’s cries for help as well as the lookout’s warning and to see plaintiff and his cohort fleeing down a nearby staircase. Under any view of the facts, those observations are sufficient to support a reasonable belief by the officer that a violent crime had just occurred and that the perpetrators were about to escape.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Virgilio Polanco, Appellant.
    Submitted March 15, 1993;
    decided April 5, 1993
   Motion for reargument dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 80 NY2d 1012.]


text:
    Coleen Rowell, Individually and as Natural Guardian of Robert E. Rowell, an Infant, Appellant, v Town of Hempstead, Defendant, and Incorporated Village of Island Park, Respondent.
    Submitted March 22, 1993;
    decided April 5, 1993
   Motion for extension of the time within which to move for reargument denied. Motion for reargument of motion for leave to appeal dismissed as untimely (22 NYCRR 500.11 [g] [3]). ¡See, 81 NY2d 703.]


text:
    William Stockler & Co., Respondent, v Kenneth Heller, Doing Business as Kenneth Heller Counselor at Law Proctor in Admiralty, et al., Appellants.
    Submitted February 1, 1993;
    decided April 5, 1993
   Motion for leave to appeal denied. Cross motion for imposition of sanctions denied.


text:
    Property Clerk of New York City Police Department, Petitioner, v Michael Molomo, Respondent. Ford Motor Credit Company, Appellant, v Michael Molomo, Defendant, and Andrew Furlong, as New York City Police Department Property Clerk, Respondent.
    Argued February 18, 1993;
    decided April 8, 1993

      APPEARANCES OF COUNSEL

      Wilson, Elser, Moskowitz, Edelman & Dicker, White Plains (Jerold R. Ruderman and Bryon L. Friedman of counsel), for appellant.

      O. Peter Sherwood, Corporation Counsel of New York City (Elizabeth S. Natrella and Pamela Seider Dolgow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Ford Motor Credit Company was the lienholder on a vehicle used in a drug purchase by the debtor Molomo. As an instrumentality of crime, the car was subjected to forfeiture under section 14-140 of the Administrative Code of the City of New York. In these combined forfeiture and replevin actions, Ford’s principal contention is that the City’s forfeiture procedure is constitutionally infirm because it does not require notice to a lienholder, nor does it grant "wholly innocent” lienholders a right to possession of the seized vehicle.

Neither contention has merit. Ford received actual notice of the City’s seizure of the vehicle and has fully participated in legal proceedings pertaining to the vehicle’s disposition (cf, Butler v Castro, 896 F2d 698). Moreover, it is settled law that a claim of innocence will not defeat forfeiture (Calero-Toledo v Pearson Yacht Leasing Co., 416 US 663, 683; United States v One 1957 Rockwell Aero Commander 680 Aircraft, 671 F2d 414, 417; United States v One 1969 Plymouth Fury Auto., 476 F2d 960; City of New York v Salomon, 161 AD2d 470; Santora Equip. Corp. v City of New York, 138 Misc 2d 631). In any event, Ford had no present possessory right in the vehicle, and its remedy, as the Appellate Division held (179 AD2d 210), is to receive the proceeds from the City’s forfeiture sale and to seek any deficiency against the debtor. By doing so, Ford will fully protect its interest in the property and incur no loss.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

Order affirmed, with costs, in a memorandum.


text:
    Zurich Insurance Company et al., Respondents-Appellants, v Travelers Indemnity Company, Respondent-Appellant, and Morton Thiokol, Inc., et al., Appellants-Respondents, et al., Defendants. Travelers Indemnity Company, Third-Party Plaintiff-Respondent-Appellant, v International Insurance Company, Third-Party Defendant-Appellant-Respondent.
    Decided April 8, 1993

      APPEARANCES OF COUNSEL

      Martin, Clearwater & Bell, New York City (Barbara D. Goldberg of counsel), for Morton Thiokol, Inc., appellant-respondent.

      Meyer, Suozzi, English & Klein, P. C, Mineóla (Bernard S. Meyer of counsel), Henry J. Cernitz, Garden City, and Hoffer & Hoffer, New York City, for Avis Rent-A-Car System, Inc., appellant-respondent.

      Vedder, Price, Kaufman, Kammholz & Day, New York City (John H Eickemeyer of counsel), for International Insurance Company, third-party defendant-appellant-respondent.

      Siff Rosen, P. C., New York City (Ignatius John Melito and S. Dwight Stephens of counsel), for Zurich Insurance Company, respondent-appellant.

      Speyer & Perlberg, Melville (Dennis M. Perlberg and Gay H Snyder of counsel), for Travelers Indemnity Company, respondent-appellant.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to defendants-appellants, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the dissenting memorandum by Justice Joseph P. Sullivan at the Appellate Division (184 AD2d 454, 456-462). Certified question answered in the negative.

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Bellacosa. Taking no part: Judge Smith.


author: Bellacosa, J.

text:
    In the Matter of Marrhonda G., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued February 12, 1993;
    decided April 8, 1993

      APPEARANCES OF COUNSEL

      Kenneth Rabb, New York City, and Lenore Gittis for appellant.

      O. Peter Sherwood, Corporation Counsel of New York City
      (Margaret G. King and Ellen B. Fishman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, respondent’s motion to suppress granted and the petition dismissed.

On April 5, 1990, Port Authority Police Officer Joseph DeFelice observed respondent standing alone in the Port Authority Bus Terminal for several hours with a large knapsack-type bag. DeFelice approached and questioned respondent, and, for several reasons, concluded that she could be a runaway. Respondent was traveling alone, had initially lied about her age, had no identification with her and appeared to be nervous. Moreover, respondent said that her mother could not be contacted and, while indicating that she was waiting for a relative, she could not give a local address or telephone number for that person.

DeFelice took respondent to the Port Authority Youth Services Unit office — a facility for investigating suspected runaways. Upon entering the office, respondent put her bag down on the floor and sat in a chair about 15 feet away from the bag. A few minutes later, another officer picked up respondent’s bag from the floor in order to move it out of the way. While holding the bag, the officer felt what he believed to be the butt and trigger guard of a gun. DeFelice also handled the bag and was able to feel what he believed to be the impression of a gun inside the bag. The officers then opened the bag and found four weapons and ammunition.

Family Court denied respondent’s motion to suppress the weapons seized from the bag, holding that the respondent’s detention was proper since DeFelice had probable cause to believe that respondent was a runaway and that the search of the bag was justified under a "plain-touch” exception to the warrant requirement. After a fact-finding hearing, Family Court determined that respondent had committed acts, which if committed by an adult, would constitute the crimes of criminal possession of a weapon in the third and fourth degrees.

The Appellate Division affirmed, holding that respondent had been properly detained under Family Court Act § 718 and that the search of the bag was permissible since "the discovery of the weapon[s] was inadvertent.” (184 AD2d 338, 339.)

We agree with the courts below that the detention of respondent was proper. Under Family Court Act § 718, the police may detain and return any juvenile to his or her parents "who, in the reasonable opinion of the officer, appears to have run away from home without just cause”. An officer’s reasonable opinion justifies detention of a juvenile under section 718 if it is supported by probable cause to believe that the juvenile may be a runaway (see, Matter of Mark Anthony G., 169 AD2d 89, 91; Matter of Terrence G, 109 AD2d 440, 444; see also, Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 718, at 39). The circumstances here are sufficient to support a finding of probable cause.

We disagree with the conclusion of the courts below, however, that the warrantless search of respondent’s bag was justified under a so-called "plain-touch” exception to the warrant requirement. We have rejected that exception this session in People v Diaz (81 NY2d 106 [decided today]). In the absence of some other applicable exception to the warrant requirement, the warrantless search of respondent’s bag was unjustified. As noted by the dissent (dissenting opn, at 947), our rejection of the plain-touch exception does not bar the application of some other exception to the warrant requirement. The officers could have justifiably searched the bag if it had been within respondent’s "grabbable area”, if respondent had consented to the search, or if respondent had been placed under arrest and the bag then searched as an incident thereto. Indeed, the police may have simply detained the bag while they obtained a warrant to search it (see, Arkansas v Sanders, 442 US 753, 766). Additionally, of course, the police could have asked respondent about the contents of the bag.

Bellacosa, J.

(dissenting). Appellant, 13 years of age, was detained at the Port Authority Bus Terminal at approximately 9:00 p.m. on a week night, on suspicion of being a runaway. We are unanimous that the detention of this teenager was justified and lawfully conducted under Family Court Act § 718. A few minutes after she was escorted by a Port Authority police officer to the Youth Services Unit at the Terminal, she set down her large, black, canvas, knapsack-type bag in the walkway in the specially designated room. She took a seat some 15 feet away. A second officer picked up the bag to move it out of the way. He felt the unmistakable outline of the butt and trigger guard of a gun. His concerns were then also confirmed by the detaining officer. We are also unanimous that up to that point the officers’ actions were lawful. However, the legal characterization and consequences of what occurred next divides us. When the officers then opened the bag, they saw four handguns (two 9mm semiautomatic; one .38 caliber semiautomatic; and one .44 caliber revolver) and 150 rounds of ammunition. The majority holds that opening the bag violated the juvenile’s Fourth Amendment rights.

The Family Court and the Appellate Division denied suppression of the seized miniarsenal. This Court granted leave to appeal. I agree with the result of the two courts below and therefore respectfully dissent and vote to affirm the order of the Appellate Division for essentially the same rationale applied by the Appellate Division.

That Court plainly did not adopt or rely on the so-called "plain touch” doctrine in this case. Thus, the forced application of this doctrine here, as the decisive template, is puzzling. That semantical phrase should be just a shorthand for one of the factors that contribute to any probable cause determination. If the factor is derived from a lawful and justified action, as here, it ought to be considered with all the rest of the probable cause features. It should not be discarded on a per se semantical analysis.

In upholding the seizure and the resulting juvenile delinquency determination of the Family Court, the Appellate Division used a traditional analysis. The officer in this case, after routinely and legally touching the juvenile’s bag, inadvertently became aware that it contained dangerous contraband. He verified his acquired knowledge by having another officer check the outside of the bag, also by lawful actions. Their reasonable and lawful activity, along with the entire assembly of surrounding circumstances in this situation, provided a probable cause basis to take further reasonable actions, including in these circumstances opening to check that bag in that public place. Ultimately, the safety of the officers and the public was at stake there, and to propound a protocol that requires making a formal arrest in order to qualify for an incident search (compare, People v Diaz, 81 NY2d 106 [decided today]) or suspending all action to secure a warrant in these circumstances is unnecessarily restrictive. That approach elevates form over substance in the typically active setting of the Port Authority Youth Services Unit.

The net practical effect of this and like cases requires officers and lower courts empowered with fact-finding authority to jettison their sound appraisal of the entire collection of data and developments of the varied and dangerous encounters involved. That is not warranted under sensible, settled, constitutional law principles.

Basically, the Court seems to be erecting a set of rigid regimes. Presumably, the officers could have held, examined or seized the juvenile’s knapsack and its contents in any number of other lawful ways, e.g., if they arrested her and did an incident search; if the bag were in her proximate "grabbable” area within the youth facility; if a fear for safety was reasonably perceived (an explosive potential, for example); if a regulation or magnetometer were in place to check all bags in the secure unit, as is done at airports and some courthouses and schools; if a proper inventory of held property procedure were in place; if the teenager were held for a longer period, perhaps overnight, while the police secured a warrant; if the police got consent or information by lawfully questioning her; if other exigent circumstances were present; or if several other categorical exceptions were evoked. I do not see why the police actions taken here must fit rigidly into one of the litany of authorized exceptions, so long as they reasonably approximate one or more of the traditional allowances for nonwarrant searches and seizures — as they did in this case.

In sum, the reversal approach taken by the Court in this juvenile delinquency case is not only analytically infirm but precedentially dangerous, since it compels the police to perform their job duties with timidity when confronted with situations reasonably affecting the public’s and their own personal safety. The police in such circumstances should not be left with no realistic alternative except to return an arsenal of dangerous and illegal weapons and ammunition to a child courier.

Chief Judge Kaye and Judges Simons, Titone and Hancock, Jr., concur in memorandum; Judge Bellacosa dissents and votes to affirm in an opinion; Judge Smith taking no part.

Order reversed, etc.


text:
    In the Matter of Andy E., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Decided April 8, 1993

      APPEARANCES OF COUNSEL

      Carol Goldstein, New York City, Raymond Taseff and Leñare Gittis for appellant.

      O. Peter Sherwood, Corporation Counsel of New York City (John Hogrogian of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress physical evidence granted and the petition dismissed.

The only relevant evidence admitted at the suppression hearing was that when the police officer grabbed a brown object in respondent’s hand, he "wasn’t sure what it was” and that, upon grabbing it, he felt "numerous small hard objects” in it. The officer pulled the object out of respondent’s hand, discovered that it was a brown paper bag, and opened it "to see what it was.” There is no theory under which this evidence could have given the officer probable cause to search respondent’s bag (see, People v McNatt, 65 NY2d 1046, 1048). Since no justification for the warrantless search was presented, the seizure of the contraband was illegal and the motion to suppress should have been granted.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, respondent’s motion to suppress physical evidence granted and petition dismissed in a memorandum.


text:
    George A. Stiles, Respondent, v Batavia Atomic Horseshoes, Inc., Defendant and Third-Party Plaintiff-Respondent. Records Reserve Corporation, Third-Party Defendant-Appellant.
    Argued February 17, 1993;
    decided April 8, 1993
    APPEARANCES OF COUNSEL

      Hurwitz & Fine, P. C., Buffalo (Theodore J. Burns of counsel), for appellant.

      James J. Moran, Williamsville, for George A. Stiles, respondent.

      Batavia Atomic Horseshoes, Inc., respondent precluded.

      Rheingold & McGowan, P. C., New York City (Richard S. McGowan of counsel), for New York State Trial Lawyers Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and plaintiff’s cause of action in strict products liability dismissed.

Plaintiff sustained injuries while operating a punch press owned by his employer third-party defendant Records Reserve Corp. Records Reserve had purchased the press in used condition from defendant Batavia Atomic Horseshoes. In awarding damages to plaintiff, the jury concluded that Batavia was a regular seller of used goods and thus, under the court’s instructions, accountable to plaintiff under the theory of strict products liability.

A trial court’s finding of fact, if affirmed by the Appellate Division, is beyond the review powers of this Court provided the finding is supported by evidence on the record (CPLR 5501 [b]; NY Const, art VI, § 3 [a]; Simon v Electrospace Corp., 28 NY2d 136, 142; Matter of Kelly, 285 NY 139, 142). The evidence in this record, however, fails to support the jury’s finding that Batavia engaged in sales of equipment as a "regular part of its business” (see, Sukljian v Ross & Son Co., 69 NY2d 89, 95).

Batavia’s business was the manufacture and sale of horseshoes. It had engaged in incidental transactions involving the purchase and resale of used industrial machinery on three occasions, once before the sale to Records Reserve and once subsequent to it. In each transaction, it purchased used equipment in lots intending to keep much of the machinery for its own purposes. The press sold to Records Reserve was never unloaded at Batavia, but instead sold directly off the truck that had transported it from an equipment auction and was in the possession of Batavia at its facility for approximately one hour before Records Reserve took delivery of it.

Because this evidence fails as a matter of law to support a finding that Batavia was a regular seller of used goods, we need not reach the question reserved in Sukljian and submitted by the parties to this appeal, i.e., whether the doctrine of strict products liability applies to regular sellers of used goods.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum.

Order reversed, etc.


text:
    In the Matter of F.W.E. Stapenhorst, Inc., Respondent, v Public Service Commission of the State of New York et al., Appellants.
    Submitted March 8, 1993;
    decided April 8, 1993
   Motion for extension of the time within which to move for reargument denied. Motion for reargument dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 75 NY2d 577.]


text:
    ILC Data Device Corp. et al., Respondents, v County of Suffolk, Appellant.
    Submitted January 19, 1993;
    decided April 8, 1993
   Motion to dismiss defendant’s appeal from the November 23, 1992 judgment of Supreme Court granted and the appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the September 14, 1992 Appellate Division order, from which no appeal or motion was properly or timely taken, is the final appealable paper in this action (see, CPLR 5611).


text:
    Magar, Inc., Appellant, v National Westminster Bank USA et al., Respondents.
    Submitted February 22, 1993;
    decided April 8, 1993
   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. Cross motion for the imposition of sanctions, etc., denied.


text:
    Milton Pacheco, Appellant, v State of New York, Respondent.
    Submitted February 22, 1993;
    decided April 8, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from an Appellate Division order dismissing an appeal from a determination entered upon a default (CPLR 5511). Motion for leave to appeal dismissed upon the ground that no motion for leave to appeal lies from an Appellate Division order dismissing an appeal from a determination entered upon a default (CPLR 5511). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York et al., Respondents, v Brooklyn Psychosocial Rehabilitation Institute et al., Appellants.
    Submitted February 22, 1993;
    decided April 8, 1993
   Motion for reargument and for consolidation denied. [See, 81 NY2d 702.]


text:
    William Scott, Respondent, v H. Anthony Rechais, Appellant.
    Submitted March 1, 1993;
    decided April 8, 1993
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the nonfinal order of the Appellate Division entered in an action originating in a court other than the Supreme Court, a County Court, a Surrogate’s Court, the Family Court, the Court of Claims, an administrative agency or an arbitration (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Eng A White, an Infant, by Her Mother and Natural Guardian, Edna White, et al., Plaintiffs, v City of New York et al., Defendants. New York City Housing Authority, Third-Party Plaintiff-Appellant, v All City Insurance Company, a Division of Empire Insurance Group, Third-Party Defendant-Respondent, et al., Third-Party Defendants.
    Argued March 25, 1993;
    decided April 29, 1993

      APPEARANCES OF COUNSEL

      Kanterman, Taub & Breitner, P. C., New York City (Bruce M. Young and Elisa F. Cullen of counsel), for appellant.

      Seligson, Rothman & Rothman, New York City (Alyne I. Diamond and Martin S. Rothman of counsel), and Adolph B. Salib for respondent.
   OPINION OF THE COURT

Memorandum.

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

On September 2, 1975, three-year-old Enga White fell from a slide at a playground in project housing owned and maintained by the New York City Housing Authority (NYCHA), fracturing her skull and requiring six days’ hospitalization. The only witnesses to the accident were Enga’s three brothers, ages 9, 13 and 14. A Housing Authority Police Officer was called to the scene, filled out an incident report in triplicate, filed one copy with his precinct command, and sent two copies to his superiors. No other Housing Authority personnel were aware of the incident at that time.

Ten years later, on September 11, 1985, Enga’s mother moved for — and was granted — permission to file a late notice of claim against NYCHA after Enga began to have seizures allegedly attributable to the playground incident. On October 22, 1985, NYCHA gave notice of the claim to Empire, its insurance carrier. Empire disclaimed coverage on the grounds that the notice was not given "as soon as practicable” as required by the policy. NYCHA commenced this third-party action against Empire for a declaratory judgment that there was coverage.

At a hearing held solely on this issue, testimony revealed that NYCHA generally gave notice to Empire by either filling out a special insurance report form or by forwarding a notice of claim; the form filled out by the Housing Police Officer had three copies — one of which was retained by the precinct with the other two forwarded to superior officers in the Housing Police Department; the Housing Police were employed by the NYCHA; the form the Housing Police Officer filled out was not sent to NYCHA, and there was no procedure established for NYCHA to receive such forms; and NYCHA did not receive any other notice of the incident. On this record, Supreme Court refused to impute the knowledge of the Housing Police to the NYCHA. The Appellate Division (two Justices dissenting) disagreed. We now affirm the Appellate Division.

The requirement that an insured notify its liability carrier of a potential claim "as soon as practicable” operates as a condition precedent to coverage (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581; Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436, 440). There may be circumstances, such as lack of knowledge that an accident has occurred or a reasonable belief in nonliability, that will excuse or explain delay in giving notice, but the insured has the burden of showing the reasonableness of such excuse (Security Mut. Ins., 31 NY2d, at 441).

NYCHA seeks to excuse its 10-year delay in notifying Empire by explaining that its employees charged with collecting incident information and giving notice had no knowledge of the incident prior to September 11, 1985. Empire contends, however, that the knowledge of the Housing Authority Police Officer must be imputed to the NYCHA because the Police Officer was acting as an NYCHA agent for the purposes of such notice (see, e.g., Woolverton v Fidelity & Cas. Co., 190 NY 41, 48). On the record before us, we agree with Empire. It is undisputed that the Housing Authority Police had a system for reporting injury-causing incidents, and that the officer in this case did in fact fill out a form that reported the incident to his employer. Under these circumstances, we conclude that NYCHA cannot deny knowledge of the incident at the time it occurred.

NYCHA also argues that even if it may be charged with the knowledge of its Police Department, its late notice to Empire may be excused by its good-faith belief that the incident would not result in liability (see, Security Mut. Ins., 31 NY2d, at 441; 875 Forest Ave. Corp. v Aetna Cas. & Sur. Co., 37 AD2d 11, affd 30 NY2d 726). However, where a reasonable person could envision liability, that person has a duty to make some inquiry (Security Mut. Ins., 31 NY2d, at 442). Here, the seriousness of the injury coupled with the apparent lack of adult supervision warranted some type of follow-up. Without any evidence of further inquiry by the Housing Police or the NYCHA itself, we cannot accept NY-CHA’s claim that it had a reasonable belief of nonliability. We therefore conclude that NYCHA did not proffer a reasonable excuse for its delay in reporting the occurrence to Empire, and has failed to satisfy the condition precedent to coverage.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, with costs, in a memorandum.


text:
    Manuel Varela et al., Appellants, v Investors Insurance Holding Corp., Also Known as Investors Insurance Co. of America, Defendant, and Friesner & Salzman, Respondent.
    Argued March 31, 1993;
    decided April 29, 1993

      APPEARANCES OF COUNSEL

      Robert A. Siegel, Jackson Heights, for appellants.

      Serchuk & Zelermyer, White Plains (Steven A. Coploff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant law firm represented defendant Investors, an insurance company. The company erroneously believed that plaintiffs were delinquent in paying their insurance premiums and consequently, the law firm commenced a collection action and entered a default judgment against plaintiffs for the sum believed due. Although thereafter informed by their client that a mistake had been made and that plaintiffs did not owe Investors the premium, defendant refused to enter a satisfaction of judgment until plaintiffs paid defendant the amount of $60 for issuing and filing the satisfaction. Plaintiffs paid the $60 and subsequently instituted this action asserting that they had suffered substantial damage as a result of defendants’ conduct and seeking relief on several grounds. Among the causes asserted were several based upon consumer protection statutes, specifically, articles 22-A and 29-H of the General Business Law. We conclude that none of these causes of action may stand.

Article 22-A of the General Business Law, entitled “Consumer Protection from Deceptive Acts and Practices”, declares unlawful “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” (General Business Law § 349). Whether or not defendant’s actions were proper, manifestly they did not mislead plaintiffs in any material way and did not constitute "deceptive acts” within the meaning of the statute. Thus, plaintiffs were not "person[s] * * * injured by reason of any violation of [article 22-A]” (see, General Business Law § 349 [h]; Genesco Entertainment v Koch, 593 F Supp 743, 751 [holding that plaintiff was not "injured by reason of any violation” of section 349 because alleged misrepresentations did not constitute a deceptive practice within the meaning of the act]).

Insofar as plaintiffs rely upon article 29-H of the General Business Law, which regulates debt collection practices, their claim fails because the article does not create a private cause of action, but authorizes only the Attorney-General or a District Attorney to commence an action for violation of its provisions (see, General Business Law § 602 [2]). Given the Legislature’s action in amending article 22-A to expressly provide for a private cause of action in that article (see, General Business Law § 349 [h], added by L 1980, ch 346), its provision for private causes of action in other portions of the General Business Law (see, e.g., arts 29-1, 30), and the absence of a similar provision for enforcing article 29-H, we conclude the Legislature did not intend to create a private cause of action for violations of article 29-H (see generally, CPC Intl. v McKesson Corp., 70 NY2d 268; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 325). Accordingly, the claims relying upon articles 22-A and 29-H of the General Business Law were properly dismissed.

We have reviewed the remaining causes of action alleged in plaintiffs’ complaint and agree with the Appellate Division that they should be dismissed also.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Olympic Tower Associates, Respondent, v City of New York et al., Appellants.
    Argued March 24, 1993;
    decided April 29, 1993

      APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City (Regina Feder and Joseph I. Lauer of counsel), for appellants.

      Mudge Rose Guthrie Alexander & Ferdon, New York City (Douglas M. Parker, Michael C. Harwood and Gail A. Matthews of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be reversed, with costs, and the petition, insofar as it pertains to the tax years 1978/ 1979 through 1984/1985, dismissed.

In 1988, petitioner, a partnership which owns a mixed use condominium building known as Olympic Tower, commenced this CPLR article 78 proceeding challenging the tax reductions granted to the condominium’s commercial units for the tax years 1985/1986 and 1986/1987, and seeking tax reductions for tax years 1978/1979 through 1984/1985, pursuant to RPTL 421-a. Supreme Court ordered respondents to recalculate the tax remissions granted for 1985/1986 and 1986/1987, and directed respondents to calculate remissions for 1978/ 1979 through 1984/1985. On appeal, respondents challenged only the latter portion of the order. In affirming, the Appellate Division ruled that the action was timely and was not barred by the doctrine of "res judicataWe reverse.

The parties executed annual settlement agreements for the years 1978/1979 through 1984/1985 wherein petitioner expressly withdrew its "claim for reduction’’ and agreed "not to institute * * * article 7 (tax certiorari)” proceedings in exchange for respondent’s grant of certain tax reductions for those years. Petitioner failed to reserve any section 421-a tax reduction claims, and cannot escape the effect of the release by bringing, via article 78, its claims for tax reduction which could have been raised in the forfeited RPTL article 7 proceedings (see, RPTL 701 [4] [b]; Hewlett Assocs. v City of New York, 57 NY2d 356). The parties’ intent in executing the agreements was clearly to resolve all disputes concerning petitioner’s eligibility for tax reductions, and to foreclose petitioner from instituting further challenges to its annual tax liability. Allowing petitioner to seek the relief that it otherwise expressly forfeited would contravene the intended purpose and effect of the agreements. Accordingly, dismissal of this article 78 proceeding, insofar as it is directed at the 1978/ 1979 through 1984/1985 tax years, is required.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur in memorandum; Judge Smith taking no part.

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v William Mendoza, Respondent.
    Argued March 25, 1993;
    decided April 29, 1993

      APPEARANCES OF COUNSEL

      William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (Gary T. Kelder and Victoria M. Anthony of counsel), for appellant.

      Michael F. Young, Syracuse, and James R. McGraw for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

When the police entered defendant’s home to execute a search warrant, defendant immediately ran into a second-floor bedroom. The police heard defendant throw something that landed with a "bang” or "clunk.” When they arrived at the bedroom, the police saw chunks of a white substance and white powder strewn around the room and on the bed. In an effort to preserve the evidence, the police used a special vacuum with a filter that separated out the large white chunks. The chunks were collected and placed in one sealed bag, while the powder was placed in another. Subsequent tests revealed that the white substance contained particles of cocaine. Only the bag containing the chunks, which had a total weight of over five ounces, was admitted in evidence at defendant’s ensuing trial for first degree criminal possession of a controlled substance. In addition to the white chunks, the bag contained visible hair, dirt and other foreign particles that had been swept up into the vacuum tool during the evidence-collection process.

On these facts, the Appellate Division correctly concluded that the People did not meet their burden of proving that the contraband had an "aggregate weight” of at least four ounces as required by Penal Law § 220.21. While it is true that the "aggregate weight” of a controlled substance is determined by "the weight of the substance which contains the drug, irrespective of the amount of the drug in the substance” (Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 220, at 9), the "aggregate weight” does not include the weight of extraneous foreign matter that may have found its way into the compound during the evidence-gathering process. Such foreign matter was not part of the substance the defendant "possessed,” and there is thus no basis for including it in the "aggregate weight” for purposes of determining the degree of the crime with which the defendant may be charged.

Contrary to the People’s argument, the judgment convicting defendant of first degree criminal possession of a controlled substance cannot be sustained on the theory that the jury was in a position to observe the ratio of foreign particles to the other matter contained in the sealed evidence bag and to determine for itself whether subtraction of those particles would reduce the aggregate weight to below the four ounces that the statute requires. Such a determination could only be the result of impermissible speculation by the jurors. Accordingly, the Appellate Division did not err in reducing the judgment to one convicting defendant of criminal possession of a controlled substance in the seventh degree, a crime that does not require a showing that the unlawfully possessed substance had a particular "aggregate weight” (Penal Law § 220.03).

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed in a memorandum.


text:
    In the Matter of Long Island Lighting Company, Appellant, v Public Service Commission of the State of New York, Respondent. Robert Abrams, as Attorney-General of the State of New York, et al., Intervenors. (And Three Other Related Proceedings.)
    Submitted February 8, 1993;
    decided April 29, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which denied petitioner’s motion to vacate, dismissed upon the ground that that order does not finally determine the proceedings within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York, Respondent, v Douglas Zimmerman, Appellant.
    Argued January 6, 1993;
    decided February 11, 1993
    APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender of Monroe County, Rochester (David Juergens of counsel), for appellant.

      Howard R. Relin, District Attorney of Monroe County, Rochester (Wendy Evans Lehmann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, a bank loan officer, was convicted of larceny by false pretenses for obtaining money from the bank by intentionally making material misrepresentations on which the bank relied in transferring the funds to him (see, Penal Law § 155.05 [2] [a]; People v Drake, 61 NY2d 359, 362; People v Churchill, 47 NY2d 151).

Defendant’s conviction is sustainable on the basis of the ample circumstantial evidence that he and a coconspirator colluded to deceive the bank while appearing to comply with its procedures and loan requirements. Among other things, the evidence showed that, with defendant’s knowledge, the coconspirator intentionally made false representations and misstatements on loan applications. Defendant then proceeded to misrepresent his coconspirator’s financial status to colleagues at the bank, inducing them to coapprove the loans beyond the limit of defendant’s own lending authority. There was additional evidence that, by initialing his approval on checks drawn on his coconspirator’s overdrawn account, defendant induced colleagues to cash these checks.

Finally, the bank’s employee-agents testified that they had, in fact, relied on defendant’s misrepresentations as to his coconspirator’s credit standing in recommending that the bank approve his loans, all of which eventually went into default, and to cash his checks for considerable amounts on an account containing insufficient funds. Since the reliance of its agents may be imputed to the victimized bank (see, People v Termotto, 81 NY2d 1008 [decided herewith]; Oliner v Mid-Town Promoters, 2 NY2d 63, 64; Seneca Wire & Mfg. Co. v Leach & Co., 247 NY 1, 6), the People’s larceny charge was adequately established. Defendant’s remaining contentions are lacking in merit.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Nathan S. Johnson, Also Known as S. Nathan Johnson, Respondent.
    Argued March 23, 1993;
    decided May 4, 1993

      APPEARANCES OF COUNSEL

      George M. Dentes, District Attorney of Tompkins County, Ithaca, for appellant.

      James A. Baker, Ithaca, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of criminal possession of a weapon in the third degree. During jury deliberations, the trial court, over the defendant’s objections, complied with a jury request for a written copy of the court’s entire charge. The Appellate Division concluded this was error, reversed the judgment of conviction and ordered a new trial. The People appeal by leave of a Justice of the Appellate Division, who dissented from that Court’s reversal (People v Johnson, 181 AD2d 103, 107).

We affirm the order of the Appellate Division because CPL 310.30 prohibits giving "copies of the text of any statute” to a deliberating jury without the consent of the parties. Here, defendant expressly objected to complying with the jury’s request to receive the entire charge in writing, which included statutory textual material.

The fact that CPL 310.30 allows a deliberating jury to "request the court for further instruction or information * * * with respect to any * * * matter pertinent to the jury’s consideration of the case” does not impliedly authorize an override of the specific prohibition. Inasmuch as the entire written jury instruction included forbidden statutory textual material, the Appellate Division correctly concluded that the trial court committed reversible error in providing that material to the jury over defendant’s objection (see, People v Taylor, 76 NY2d 873; People v Nimmons, 72 NY2d 830; People v Owens, 69 NY2d 585).

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed in a memorandum.


text:
    Michael W. Lesocovich, Appellant, et al., Plaintiff, v 180 Madison Avenue Corporation, Respondent.
    Argued March 24, 1993;
    decided May 4, 1993

      APPEARANCES OF COUNSEL

      Pattison, Sampson, Ginsberg & Griffin, P. C., Troy (Gerald H. Katzman of counsel), for appellant.

      Horigan, Horigan, Pennock & Lombardo, P. C., Amsterdam (Richard T. Horigan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant’s motion for summary judgment denied.

The issue before us is whether defendant is entitled to summary judgment in this personal injury action. Plaintiff Lesocovich was rendered a quadriplegic as a result of a fall from a flat roof owned by the defendant landlord 180 Madison Avenue Corporation. The roof covered a one-story portion of a three-story residential and commercial building in Albany. Plaintiff alleges that the fall was due to the failure to install a railing or parapet wall around the edge of the roof and that this failure constitutes negligence based on the common law and various statutes and regulations, including Multiple Dwelling Law § 62, Multiple Residence Law § 138, and the State Uniform Fire Prevention and Building Code (hereinafter the Code) (9 NYCRR part 600 et seq., specifically 9 NYCRR 732.1 [f]; 762.1 [f]).

As alleged by plaintiff, at the time of the accident he was in the building as the guest of a tenant who was using the roof for entertainment purposes. Access to the roof was gained through a bedroom window in the tenant’s apartment. When the tenant took possession of the apartment, the screen had been removed from the bedroom window and was lying on the roof, and cinder blocks that might have been used as sitting stools were on the roof. The roof was not a part of the tenant’s leased premises and permission to use it was never sought although it had been used in this manner on prior occasions. The tenant was never told that the roof was not to be used.

After the completion of discovery, defendant moved for summary judgment dismissing the complaint. The motion court denied summary judgment on the grounds that there were triable issues of fact as to foreseeability, plaintiff’s culpable conduct, and the scope of alterations to the premises and that the motion was premised upon the incorrect legal assumption that defendant owed no legal duty to the plaintiff.

By a 3 to 2 majority, the Appellate Division reversed and granted defendant summary judgment because plaintiff failed to come forward with admissible evidence raising a material question of fact in response to the "compelling factual showing that the roof * * * was not part of the premises demised to defendant’s tenants or used by them as a common area with defendant’s express or implied permission, and that neither plaintiff’s presence on the roof nor his failure to perceive and avoid the obvious hazard was reasonably foreseeable” (185 AD2d 599, 600). As to the statutory and regulatory violations, it was held (1) that the roof did not constitute a "walking surface” within the meaning of the Code (9 NYCRR part 600 et seq., specifically 9 NYCRR 762.1 [f]) and (2) that plaintiff had failed to present evidence establishing a triable issue of fact to counter defendant’s evidentiary showing that the Code was inapplicable because the building predated its promulgation and that the building had not been brought within the coverage of the Code by virtue of any conversions, additions or alterations (see, 9 NYCRR 651.2, 1231.3 [b]) (185 AD2d, at 601).

The dissent concluded that the following triable issues of fact were raised as to defendant’s liability under both common law and statute (185 AD2d, at 603). First, an issue of fact as to foreseeability was created by the deposition testimony of the tenant which included her discovery of the bedroom window screen and the cinder blocks on the roof, her previous use of the roof and porch, and her observation of repairs being made to the roof by the landlord’s agents (185 AD2d, at 602-603). Second, pursuant to 9 NYCRR 1231.3 (b), the Code is applicable "to an entire existing building, as if hereafter erected, when the cost of any alterations, additions or repairs made within any six-month period exceed 50 percent of the cost of replacement of the building.” Therefore, the evidence that the property was purchased for $30,000 in 1976 and, in 1980, $80,000 was borrowed to make substantial repairs and alterations created an issue of fact as to the application of the Code (185 AD2d, at 604). Third, assuming the application of the Code, there was a triable issue of fact as to whether defendant was negligent in failing to comply with the requirement to install a railing or parapet wall around the edge of the roof (see, 9 NYCRE 762.1 [f]) (185 AD2d, at 603).

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In the case at bar, defendant failed to make such a showing.

Triable issues of fact are presented on this record, including (1) whether defendant exercised reasonable care to prevent the use of or access to the roof and porch, (2) whether it was foreseeable that persons might use the roof and porch for outdoor recreational purposes, (3) whether, under the applicable law, the failure to install a railing or parapet wall constitutes a violation, and (4) whether the alterations and repairs made to the premises brought it within the purview of the Code.

On this record, reasonable persons could differ as to whether defendant should have done more to prevent access to the roof and whether the defendant should have foreseen that tenants and their guests would use the roof for recreational purposes and be likely to fall from it because of the lack of a railing or parapet wall. Also, given the evidence of a substantial loan for the premises, extensive repairs and alterations to the premises, and defendant’s failure to establish that these actions did not bring the premises within the purview of any allegedly applicable statute or Code provision, triable issues of fact remain.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum.

Order reversed, etc.


text:
    Anthony M. Darmento et al., Respondents, v Pacific Molasses Company, Inc., et al., Appellants.
    Argued March 30, 1993;
    decided May 4, 1993

      APPEARANCES OF COUNSEL

      MacKenzie Smith Lewis Michell & Hughes, Syracuse (Stephen S. Davie of counsel), for appellants.

      Peter W. Mitchell, Cazenovia, for respondents.
   OPINION OF THE COURT

Memorandum.

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

This is a negligence action to recover for personal injuries sustained in a motor vehicle accident. Plaintiff Anthony M. Darmento was driving and his wife, plaintiff Matilda T. Darmento, was a passenger. Plaintiffs contend that as they were driving south on State Route 13, which was icy, slippery and covered with snow, defendant Walter J. Finlay negligently operated the 31-ton tractor-trailer owned by defendant Pacific Molasses Co. in that he followed their vehicle too closely, was going at an excessive rate of speed under the circumstances, and did not have his vehicle under control. It is further alleged that Darmento observed the tractor-trailer following too closely and that he found this "disconcerting,” causing Darmento to lose control of his vehicle. Plaintiffs’ vehicle then skidded into a guardrail, careened off of it and back into the flow of trafile, resulting in a collision between the tractor-trailer and the front passenger side of the plaintiffs’ vehicle. Supreme Court granted defendants’ motion for summary judgment on the ground that the only cause of the accident was plaintiff’s loss of control of his vehicle.

The Appellate Division, by a 3 to 2 majority reversed, concluding that there were triable issues of fact as to whether Finlay was tailgating plaintiffs’ vehicle and failed to control his vehicle (Darmento v Pacific Molasses Co., 183 AD2d 1090, 1091).

The dissent contended that even if Finlay violated Vehicle and Traffic Law § 1129 (a) by tailgating, a finding of negligence could not be based upon that violation because the statute was not intended to protect against the risk of a collision of this nature and that, as a matter of law, following too closely to avoid the collision could not be the cause of this accident (Darmento v Pacific Molasses Co., 183 AD2d, at 1092-1093, supra).

The issue before us is whether there are triable issues of fact to preclude the grant of summary judgment in defendants’ favor. We conclude that there are triable issues of fact, but not those identified by the Appellate Division. In this case, it must be determined whether it was reasonable under the circumstances for Finlay to follow the plaintiffs’ vehicle as he did (see, Vehicle and Traffic Law § 1129 [a]). If it is determined that Finlay’s conduct was unreasonable, the trier of fact must consider whether such conduct was a proximate cause of plaintiff’s losing control of his car.

We reject defendants’ contention that Vehicle and Traffic Law § 1129 (a) is intended to protect only against rear-end collisions. Vehicle and Traffic Law § 1129 (a) states in pertinent part:

"The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

By the plain language of this statute, it is clear that there is a violation of law when a driver follows another too closely without adequate reason and that a collision — rear-end or otherwise — is not required. While a rear-end collision is the most obvious type of accident to occur as a result of tailgating, other types of accidents also may occur. Moreover, the legislative history of the tailgating statute provides no illumination on this point (see, L 1957, ch 698). Thus, there are triable issues of fact as to whether Finlay was driving in an unreasonable manner by driving too closely and, if so, whether his unreasonable driving was a proximate cause of plaintiffs loss of control.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum.

Order affirmed, etc.


text:
    Denise J. Burnswick, as Parent and Natural Guardian of Thompson Burnswick, Jr., an Infant, Appellant, v Joseph P. Ferlito, Doing Business as J. P. Ferlito Farms, Respondent.
    Submitted March 15, 1993;
    decided May 4, 1993
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed the denial of plaintiffs cross motion to amend the complaint, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of the Correction Officers’ Benevolent Association, Appellant, v New York City Office of Labor Relations et al., Respondents.
    Submitted March 15, 1993;
    decided May 4, 1993
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Emon Dawkins, Appellant. John F. Hudacs, as Commissioner of Labor, Respondent.
    Submitted March 22, 1993;
    decided May 4, 1993
   On the Court’s own motion, appeal dismissed, without costs, as untimely (CPLR 5513 [a]). Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Rodney Moore, Appellant, v Thomas V. Mallon, as Judge of the Suffolk County Court, et al., Respondents.
    Submitted March 15, 1993;
    decided May 4, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Moses Padro, Appellant.
    Submitted April 5, 1993;
    decided May 4, 1993
   Motion for reargument dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 75 NY2d 820.]


text:
    The People of the State of New York ex rel. Shane Gregory Brannson III, Also Known as Robert Goode, Appellant, v Warden of the George Motchan Detention Center, Respondent.
    Submitted February 22, 1993;
    decided May 4, 1993
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see, People ex rel. Wilder v Markley, 26 NY2d 648; People ex rel. Dennard v Meloni, 74 NY2d 916). Motion for poor person relief, etc., dismissed as academic.


text:
    Symbol Press, Inc., Appellant, v S & L Properties Associates et al., Respondents, et al., Defendants.
    Submitted March 15, 1993;
    decided May 4, 1993
   Motion for reargument of motion for leave to appeal dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 81 NY2d 776.]


text:
    In the Matter of Constantine Wieczorek, Deceased. Genevieve Fusco, Respondent; Constance DeSilva, Appellant.
    Submitted March 22, 1993;
    decided May 4, 1993
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    The People of the State of New York, Respondent, v Joseph Daddona, Appellant.
    Argued February 18, 1993;
    decided May 6, 1993

      APPEARANCES OF COUNSEL

      Mahler & Harris, P. C., Kew Gardens (Stephen R. Mahler of counsel), for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Kenneth B. Russo and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Upon a jury verdict, defendant was convicted of several counts of possession of stolen property and one count of operating as an unlicensed vehicle dismantler. There was eyewitness testimony of surveillant police officers that stolen vehicles were driven to a two-family house in Queens where defendant then directed the drivers of the stolen vehicles into the driveway. Defendant was thereafter seen using arm motions and gestures to direct these same vehicles, now missing automobile parts, out of the driveway. Defendant was also seen loading car parts into the back of a station wagon.

Defendant contends that his conviction must be reversed because the trial court failed to give a requested charge to the jury on circumstantial evidence. The Appellate Division agreed that the charge should have been given, but found the error to be harmless.

We affirm on the basis that the trial court did not err in failing to charge the jury on circumstantial evidence. Whenever a case relies wholly on circumstantial evidence to establish all elements of the charge, the jury should be instructed, in substance, that the evidence must establish guilt to a moral certainty (see, People v Ford, 66 NY2d 428, 441). However, where a charge is supported with both circumstantial and direct evidence, the court need not so charge the jury (see, People v Barnes, 50 NY2d 375, 380; People v Gerard, 50 NY2d 392, 397-398; People v Von Werne, 41 NY2d 584, 590).

The criminal possession counts charged were amply supported by direct evidence: there was eyewitness testimony that defendant directed the stolen vehicles in and out of the driveway, thereby establishing, with direct evidence, that he was in constructive possession of the stolen vehicles, or that he was acting in concert with those in physical possession of the stolen vehicles.

Although the evidence supporting the vehicle dismantling count was partially circumstantial because the jury had to infer cars entering the driveway in good condition and exiting without certain parts were being dismantled on the premises, there was also some direct proof supporting the charge, i.e., evidence which tends to establish, without the need of inference, one or more of the particular facts at issue (see, Pease v Smith, 61 NY 477, 484-485; Richardson, Evidence § 3 [Prince 10th ed]).

To establish the count of operating as an unlicensed vehicle dismantler, the People had to show that defendant was (1) acquiring motor vehicles or trailers, (2) for the purpose of dismantling them for parts or reselling as scrap, (3) without a registration (see, Vehicle and Traffic Law § 415-a [1]). Eyewitness testimony established that defendant was actively participating in the acquisition of the stolen motor vehicles, thereby providing direct evidence on the first element. Manifestly, the second element, the intent element, was established circumstantially, but because there was direct evidence that defendant participated in the acquisition of these stolen vehicles, the trial court did not err in failing to give a circumstantial evidence charge.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed in a memorandum.


text:
    Teresa Brito, as Guardian ad Litem of Joao Brito, et al., Appellants, v Manhattan and Bronx Surface Transit Operating Authority et al., Respondents.
    Submitted February 22, 1993;
    decided May 6, 1993
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the Appellate Division does not have the power to grant leave to appeal on a certified question from an order granting a new trial (see, CPLR 5601 [c]; 5602 [b] [1]; Mundt v Glokner, 160 NY 571; Fishman v Manhattan & Bronx Surface Tr. Operating Auth., 78 NY2d 878).


text:
    In the Matter of Stanley Henry, Individually and on Behalf of Chanry Communications, Ltd., Appellant, v James W. Wetzler, as Commissioner of the New York State Department of Taxation and Finance, et al., Respondents.
    Submitted February 16, 1993;
    decided May 6, 1993
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    Jeanette E. Kramer, Appellant, v Henry R. Herrera, Respondent.
    Submitted March 1, 1993;
    decided May 6, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied, with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York, Appellant, v Michael Simmons, Respondent.
    Submitted February 16, 1993;
    decided May 6, 1993
   Motion for leave to appeal dismissed upon the ground that no civil appeal lies from the order entered in this criminal proceeding.


text:
    In the Matter of Marjorie J. Rozelle, Respondent, v Harry W. Rozelle, Appellant. Peter W. Hill, as Law Guardian, Respondent. (And Another Related Proceeding.)
    Submitted May 3, 1993;
    decided May 6, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    Violet M. Terio, Respondent, v Vincent Terio, Appellant.
    Submitted March 1, 1993;
    decided May 6, 1993
   On the Court’s own motion, appeal, insofar as taken from the Appellate Division order affirming the judgment of divorce, dismissed, without costs, upon the ground that no substantial constitutional question is directly involved, and appeal, insofar as taken from the Appellate Division order affirming the denial of defendant’s motion to vacate the judgment of divorce, dismissed, without costs, upon the ground that that order does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    37th Holding Company, Respondent, v Dennis D. McGuire et al., Appellants.
    Submitted March 1, 1993;
    decided May 6, 1993
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal orders of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Cross motion for the imposition of sanctions, etc., denied.


text:
    The People of the State of New York, Respondent, v Milton Bialostok, Appellant. The People of the State of New York, Respondent, v Lawrence Scocco, Appellant.
    Submitted April 12, 1993;
    decided May 11, 1993

      APPEARANCES OF COUNSEL

      Denis Dillon, District Attorney of Nassau County, Mineóla (Douglas Noll of counsel), for movant.

      Cahn Wishod Wishod & Lamb, Melville (Scott M. Karson of counsel), for Lawrence Scocco, appellant.

      Robert T. Johnson, District Attorney of Bronx County (Patrick J. Hynes of counsel), for New York State District Attorneys Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The People’s motion to recall our opinion in the above matter (which appears at 80 NY2d 738) should be denied.

The People now contend that our discussion of the warrant requirement as it existed before the enactment of CPL 705.10 (L 1988, ch 744, § 21) is erroneous because it is based on improper factual assumptions about the technology involved. Our decision was based on the record certified to us on appeal, which cannot now be supplemented by new materials. Thus, as the case was presented to us, the disablement of the pen register’s audio function was insufficient to prevent the abuse identified in People v Gallina (66 NY2d 52).

Motion to recall opinion denied in a memorandum.