author: Titone, J.

text:
    The People of the State of New York, Respondent, v Jose Cruz, Appellant.
    Argued March 30, 1993;
    decided May 11, 1993

      APPEARANCES OF COUNSEL

      Jeremy L. Goldberg, Hempstead, Kent V. Moston and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney of Nassau County, Mineóla (Douglas Noll and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that the sentencing court acted properly in requiring defendant to make restitution in the amount of $500.34 to Nassau County for costs that resulted from injuries caused by defendant to a police officer (see, People v Hall-Wilson, 69 NY2d 154). In Hall-Wilson, we held that defendant’s employer was entitled to restitution as a victim within the meaning of Penal Law § 60.27 for the amount that the employer was legally obligated to pay to its customer because of the fire set by defendant while acting on his employer’s business. Here, the Nassau County Police Department, the employer of the injured off-duty police officer, became legally obligated to incur expenses for medical costs and sick leave because of injuries sustained by the police officer in attempting to effect the arrest of defendant for a burglary. In this case, as in Hall-Wilson, the expenses for which reimbursement are sought were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime. This fact differentiates this case from those holding that voluntarily incurred expenses of law enforcement are not reimbursable under Penal Law § 60.27 (see, People v Purcell, 161 AD2d 812 [vacating order requiring restitution to County for cost of prosecuting defendant]; People v Rowe, 152 AD2d 907 [vacating order requiring restitution of "buy money” expended by police department]).

We find no merit in defendant’s other contentions, including his argument that the court improperly directed restitution to Allstate Insurance Co. for the amount paid for the burglary loss.

Titone, J.

(dissenting in part). The majority holds that Nassau County is entitled to restitution as a "victim” within the meaning of Penal Law § 60.27 for its payment of sick leave and medical bills on behalf of an off-duty police officer who was injured when he attempted to intercede in defendant’s burglary. Because, in our view, statutory interpretation, legislative intent and public policy concerns preclude reimbursing a municipal law enforcement agency for the foreseeable operating and personnel costs associated with the very crime-fighting function it is mandated to perform, we respectfully dissent from that portion of the majority’s holding which affirms the restitution award to Nassau County.

Initially, we conclude that the salary paid to the police officer for sick leave taken as a result of the injuries sustained while apprehending the defendant does not constitute compensable "loss or damage” within the meaning of Penal Law § 60.27. As it was written at the time of the burglary, that section permitted the sentencing court to require defendant "to make restitution of the fruits of his [or her] offense or reparation for the loss or damage caused thereby.” (§ 60.27 [former (1)].) Thus, what is commonly referred to as "restitution” is actually comprised of two components: disgorgement of the criminal fruits (restitution) and compensation for damages (reparation).

Reparation, defined as "loss or damage caused” by the offense, has, by its terms, almost limitless capacity, and conceivably could include compensation for mental anguish suffered by a crime victim. However, the Legislature subsequently amended the statute to make clear that the compensable "loss or damage” caused by defendant should be circumscribed (L 1992, ch 618, § 12). As it now reads, Penal Law § 60.27 (1) authorizes "restitution of the fruits of [defendant’s] offense or reparation for the actual out-of-pocket loss caused thereby” (emphasis supplied).

In this case, which involves reparation, the Nassau County Police Department did not make any additional "sick leave” payments to the detective. Rather, it simply paid his salary as required by General Municipal Law § 207-c (1). While the County did lose two days of the detective’s services, that loss of time is not the type of loss contemplated by section 60.27. Indeed, if it were, then any employer who pays its workers for time expended in consequence of a crime — while testifying at trial, for example — could make a claim for reparation. Manifestly, the Legislature did not intend that result.

Additionally, the restitution award in this case does not meet the requirement of the applicable version of Penal Law § 60.27 (1) that restitution be made "to the victim of the crime.” In People v Rowe (75 NY2d 948), we held that a law enforcement agency did not qualify as a "victim” within the meaning of this statute, and thus could not recover "buy and bust” money expended in the undercover purchase of drugs. In reaching this conclusion, we adopted the Appellate Division’s reasoning that " '[wjhere public monies are expended in the pursuit of solving crimes, the expenditure is part of the investigating agency’s normal operating costs. The governmental entity conducting an investigation is not therefore considered a "victim” to the extent that public monies are so expended’ ” (152 AD2d 907, 908, quoting People v Evans, 122 Ill App 3d 733, 740, 461 NE2d 634, 639). That analysis is equally applicable here.

That the principles enunciated in Rowe are in accord with the Legislature’s view is evidenced by a 1991 amendment to section 60.27, which was enacted in response to Rowe and grants law enforcement agencies "victim” status solely for the purpose of recovering drug buy money retained by a defendant (L 1991, ch 545, § 1). In enacting the new provision, the bill’s Senatorial sponsor commented: "the amendment does not reward law enforcement agencies for apprehension of criminals, nor does it seek to have them reimbursed for ordinary and necessary expenses incurred by them in their investigations; * * * rather, it seeks to prevent convicted narcotics offenders from reaping a windfall” (Mem of Senate Sponsor in Support of S 3072A [1991], 1991 NY Legis Ann, at 299, 300). To make clear that reimbursement for the ordinary and incidental costs of law enforcement was not intended, the Legislature adopted a narrowly circumscribed set of criteria that must be met before such agency will be entitled to qualify for restitution under the amended statute.

In view of the analysis in Rowe (supra), as well as the Legislature’s apparent adoption of the underlying principles, we cannot endorse the Appellate Division’s holding, affirmed by the majority today, that Nassau County is entitled to restitution because it suffered its loss "not as a result of operational law enforcement activities but rather in its role as employer” (People v Cruz, 184 AD2d 521, 521-522, citing People v Hall-Wilson, 69 NY2d 154). This arbitrary distinction between a law enforcement agency’s administrative and employment functions suffers from two fatal flaws.

First, the costs of providing sick leave and medical benefits to personnel employed in a labor intensive field such as law enforcement are an inextricable part of the normal and foreseeable operating costs associated with that governmental function. As is established by Rowe, such operating costs, which are funded by the taxpayer to enable the municipality to provide an essential service, are not at all comparable to a private employer’s out-of-pocket payments to or on behalf of an injured employee. Indeed, it is the unique role of this municipal "victim” that differentiates it from the victim in People v Hall-Wilson (69 NY2d 154, supra) and renders that case, which was relied upon by the majority for its analysis here, so irrelevant. While municipal law enforcement agencies are entrusted with the crime-fighting function for which they are governmentally funded, private employers as in Hall-Wilson have no such responsibilities and, accordingly, are not duty bound to budget for or anticipate losses associated with crime. An award of restitution to recompense such other entities for expenses unexpectedly thrust upon them by a criminal incident is clearly justified. That justification is removed, however, when the very agency entrusted with the apprehension of criminals is enabled to shift the costs associated with the primary societal function it has undertaken to perform.

Similarly, the majority’s suggestion that, unlike the cost of furnishing "buy money,” the cost of providing benefits to injured police officers should be compensated through restitution because they are not voluntarily incurred cannot be maintained. The distinction between "voluntarily” and "involuntarily” incurred expenses has little meaning in the context of municipal services such as law enforcement, since the provision of such services is, in some senses, always voluntary while, in other senses, it is always mandatory. It is always voluntary in the sense that the municipality always retains the right to allocate its resources in any manner it deems appropriate, and, provided that it has the support of voters and taxpayers, the municipality remains free to reduce or expand its law enforcement services in accordance with its own policy choices. On the other hand, the provision of law enforcement services can also be said to be mandatory in all cases, because, as a practical matter, an existing police department, whose mission is to uphold and enforce the law, cannot abrogate its responsibility suddenly by deciding not to apprehend criminals.

The artificiality of the distinction on which the majority relies is highlighted by the problems that result from its application. Under the majority’s approach, such expenses as the cost of a police officer’s salary while that officer is waiting to testify in connection with an arrest, the cost of repairing a police vehicle damaged during a chase and even the cost of conducting an investigative lineup to aid in apprehending a suspect could be deemed "involuntary,” since they each "stem from legal obligations that are directly and causally related to the crime” (majority opn, at 998).

Instead of relying on such artificial distinctions, we would base our analysis on the fact that the core mission of law enforcement — fighting crime — necessarily entails specific hazards and costs, including the costs associated with injuries that law enforcement personnel may sustain in the line of duty during the apprehension of criminals. Absent specific statutory authorization, a municipality can no more recover those costs from the criminal defendant than it can recover any of the other costs associated with the operation of local government and the provision of services to citizens. Accordingly, in light of the aforementioned statutory interpretation, legislative intent and public policy concerns, we would vacate the entire restitution award to Nassau County.

Judges Simons, Hancock, Jr., Bellacosa and Smith concur; Judge Titone dissents in part in an opinion in which Chief Judge Kaye concurs.

Order affirmed in a memorandum.

       The 1991 amendment, codified at Penal Law § 60.27 (9), provides that "the term 'victim’ as used in this section, in addition to its ordinary meaning, shall mean any law enforcement agency of the state of New York or of any subdivision thereof which has expended funds in the purchase of any controlled substance from [a defendant] or his agent as part of the investigation leading to such conviction” (emphasis added). Notably, if the preamendment definition of "victim” already encompassed law enforcement agencies, the italicized language above would be rendered superfluous. The provision also places the following restrictions on the agency’s ability to recover in restitution: (1) the defendant must be convicted of a class A, B, C or D felony involving the sale of a controlled substance; (2) no other victim who is a "person” seeks restitution; and (3) the amount of restitution must be limited to the actual amount of the purchase less any other amounts recovered.


source: Caselaw Access Project

license: Public Domain

text:
    Empire State Building Company, Respondent, v New York State Department of Taxation and Finance et al., Appellants.
    Decided May 11, 1993

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General, Albany (Vincent Leong of counsel), for New York State Department of Taxation and Finance and another, appellants.

      O. Peter Sherwood, Corporation Counsel of New York City (Frances J. Henn of counsel), for City of New York and others, appellants.

      Wein, Malkin & Bettex, New York City (Marcia E. Kusnetz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs tenants’ payment of an Electricity Rent Inclusion Factor (ERIF) was for electric service provided only as an incident to the rental of commercial premises in plaintiffs building and not as part of "separate transactions which have as their primary purpose the furnishing of utilities or utility services” (Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 80 NY2d 657, 661). The taxing of the ERIF payments as a sale of utility services under Tax Law § 1105 (b) was therefore improper.

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

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


text:
    Ashland Management Incorporated, Appellant, v C. Christopher Janien, Respondent. (And a Third-Party Action.)
    Submitted April 5, 1993;
    decided May 11, 1993
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    Hana B. Bordelay, Appellant, v City of New York et al., Respondents.
    Submitted March 22, 1993;
    decided May 11, 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.

Judge Smith taking no part.


text:
    General Motors Corporation, Delco Products Division, Appellant, v Margarita Rosa, as Commissioner of the New York State Division of Human Rights, et al., Respondents.
    Submitted February 16, 1993;
    decided May 11, 1993
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    In the Matter of Carol Gilzinger, Respondent, v Allan Stern, Appellant.
    Submitted March 22, 1993;
    decided May 11, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determination the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Blanca Merced, Respondent, v Louis Raiford, Jr., as Chief of Police of the New York City Housing Authority, et al., Appellants.
    Submitted March 22, 1993;
    decided May 11, 1993
   Motion for reargument granted, and upon reargument, motion for leave to appeal denied. [See, 81 NY2d 835.]


text:
    The People of the State of New York, Appellant, v Theodore Smith, Respondent.
    Decided May 11, 1993
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that no appeal lies from the decision of the Cattaraugus County Court.


text:
    Westinghouse Electric Corporation, Plaintiff, v New York City Transit Authority, Metropolitan Transportation Authority, Defendant.
    Decided May 11, 1993
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    [616 NE2d 496, 599 NYS2d 910]
    The People of the State of New York, Respondent, v Thomas A. Termotto, 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.

The defendant was convicted of larceny by false pretenses for his conduct associated with 11 loans at six different banks. A conviction for larceny by false pretenses must be based on evidence that a defendant "obtained title or possession of money or personal property of another by means of an intentional false statement concerning a material fact upon which the victim relied in parting with the property” (People v Drake, 61 NY2d 359, 362, citing Penal Law § 155.05 [2] [a]; People v Churchill, 47 NY2d 151).

Citing Oliner v Mid-Town Promoters (2 NY2d 63, 64) and Seneca Wire & Mfg. Co. v Leach & Co. (247 NY 1, 6), defendant argues that, where the victim is a bank doing business as a corporation, the element of reliance may be established only by evidence that the corporate agent who granted final loan approval in the bank’s name was the one induced by the false representations. However, in proving reliance, it is sufficient to show that an agent involved in the transaction was induced by defendant’s misrepresentations to recommend that the bank authorize the loan.

Here, bank employees who had played a major role in the application and approval process for each of defendant’s loans testified that they had relied on defendant’s false representations concerning his financial status in recommending that the bank approve his loan requests. Accordingly, the evidence was sufficient to sustain defendant’s larceny conviction.

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

Order affirmed in a memorandum.


text:
    [616 NE2d 497, 599 NYS2d 911]
    The People of the State of New York, Respondent, v Teofilio Fernandez, Appellant.
    Argued April 27, 1993;
    decided June 3, 1993
    APPEARANCES OF COUNSEL

      Steven Statsinger, New York City, Susan Allee and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Myles L. Orosco, Mark Dwyer and Carol A. Remer-Smith of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant claims that the trial court violated CPL 310.10 by permitting one or more jurors to attend church services during the lunch recess after the trial had entered the deliberations phase. When trial counsel learned what occurred, she moved for a mistrial, raising two objections: that she should have been consulted beforehand and that the jurors’ request should have been in writing. The court denied the motion, defendant was convicted, and the Appellate Division affirmed.

CPL 310.10 provides that once deliberations have commenced, the jury "must be continuously kept together under the supervision of a court officer or court officers.” Under the predecessor statute, we held that the court has discretion to permit separation of jurors so long as the jurors remain supervised (see, People v Dunbar Contr. Co., 215 NY 416, 426 [Cardozo, J.]). We see no reason to construe the present statute differently, inasmuch as it is similar insofar as relevant here and no legislative intent to overrule our construction of the prior statute has been called to our attention.

Defendant argues that the "supervision” requirement was violated. We agree with the Appellate Division, however, that in the absence of evidence, or even an allegation, that the churchgoing jurors were unsupervised, defendant has failed to sustain his burden of demonstrating a violation of CPL 310.10.

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

Order affirmed in a memorandum.

       Code of Criminal Procedure § 421 provided: "After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn, to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.” (Emphasis added.)


text:
    [616 NE2d 498, 599 NYS2d 912]
    Peter L. Olsen, Respondent, v Town of Richfield et al., Defendants, and County of Otsego, Appellant.
    Argued April 29, 1993;
    decided June 3, 1993

      APPEARANCES OF COUNSEL

      Horigan, Horigan, Pennock & Lombardo, P. C., Amsterdam (John H Pennock, Jr., of counsel), for appellant.

      Anthony A. Murad, Utica, and Louis T. Brindisi for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant County of Otsego’s motion for summary judgment dismissing the complaint granted. The certified question should be answered in the affirmative.

This case involves injuries sustained by an 18 year old after he dove into a shallow creek from a bridge owned by defendant County. Defendant’s submissions on its motion for summary judgment to dismiss the injured plaintiff’s case support no other conclusion than that the sole legal cause of the accident was plaintiff’s reckless conduct (see, Howard v Poseidon Pools, 72 NY2d 972, 974). Plaintiff’s own deposition admissions establish that he knew that the water level in the creek fluctuated, and that he had "roamed every * * * square inch of [the creek]” to determine where the deepest water was. He knew there was only a narrow-target of deep water entry that he had to hit precisely on the dive. Plaintiff’s familiarity with the body of water into which he dove is also supported by his statements that he had jumped off the arch since he was 12 or 13 years old, and had done so "more than hundreds of times.” Plaintiff’s testimony adds that he knew prior to the accident that diving from the arch required a "shallow dive”; that on the day of the accident he failed to execute the injury-producing dive at the precise angle required to safely complete it; that he recognized the hazard created by the platform below the bridge; and that if "you fell off the bridge or something, you could get hurt real bad.”

Accordingly, on this record, the sole legal cause of plaintiff’s injuries was his own reckless conduct in attempting that dive. Since that is entirely dispositive of the case, we need not reach whether triable issues exist concerning the County’s alleged breach of duty relating to maintenance of the bridge or posting of warnings at the site (see, Boltax v Joy Day Camp, 67 NY2d 617, 619-620).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa and Smith concur in memorandum; Judge Hancock, Jr., dissents and votes to affirm for the reasons stated in the memorandum of the Appellate Division (185 AD2d 542).

Order reversed, etc.


text:
    [616 NE2d 499, 599 NYS2d 913]
    Richard A. Holman et al., Appellants, v Transamerica Insurance Company, Respondent, et al., Defendants.
    Argued April 28, 1993;
    decided June 3, 1993

      APPEARANCES OF COUNSEL

      Richard A. Holman, New York City, appellant pro se, and for Mary Holman and another, appellants.

      J. Russell Clune, P. C, Harrison (Sharon A. Scanlan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and it is unnecessary to answer the certified question.

Appellants sought to compel defendant insurance company to defend them under their general liability policy. Their former landlord had sued them in Federal court, alleging conversion of furnishings and personal property which had been stored at the premises pursuant to a provision in their lease. The insurer’s refusal to defend was based on an exclusion in the policy relating to bailed property. Specifically, the policy excluded "damage: (1) to property owned by the insured; (2) to property occupied by or rented to the insured; (3) to property under bailment to the insured”. "Bailment” was defined as a "delivery of property by any person to the insured for purpose beneficial to either the insured or such person or both under a contract, express or implied, for the insured to carry out such purpose and to redeliver such property or otherwise dispose of it as provided”. The stored property qualified as a defined bailment. Thus, the exclusion from coverage was operative and the lower courts were correct in granting summary judgment to the insurer.

An insurer’s duty to defend is "derived from the allegations of the complaint and the terms of the policy” (Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 73), and exclusions from coverage, which must be in clear and unmistakable language, are given a strict and narrow interpretation (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 310). In this case, the insurer met its burden of showing that the allegations of the complaint in the landlord’s Federal suit against appellants were outside the coverage of the policy by operation of the exclusion clause (see, Technicon Elecs. Corp. v American Home Assur. Co., supra, at 73-74).

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

Order affirmed, etc.


text:
    Robert Adams, Appellant, v Brookdale Hospital Medical Center et al., Respondents.
    Submitted March 29, 1993;
    decided June 3, 1993
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs, of motion 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.

Judge Bellacosa taking no part.


text:
    Annette D. Meiselman, Appellant, v Myers Moving and Storage Co. et al., Respondents.
    Submitted April 12, 1993;
    decided June 3, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which granted renewal and, upon renewal, denied the motion to enlarge the record on appeal, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Smith taking no part.


text:
    [616 NE2d 845, 600 NYS2d 188]
    In the Matter of Long Island Lighting Company, Appellant, v Board of Assessors of the County of Nassau et al., Respondents.
    Argued May 4, 1993;
    decided June 8, 1993

      APPEARANCES OF COUNSEL

      Robert E. Fernandez, Hicksville, and Robert J. Grey for appellant.

      Robert W. Schmidt, County Attorney of Nassau County, Wantagh (Joshua A. Elkin of counsel), for respondents.

      Helm, Shapiro, Anito & McCale, P. C, Albany (Joseph P. McCale and Kevin M. Lang of counsel), for Central Hudson Gas & Electric Corporation and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

Petitioner LILCO instituted these proceedings seeking review of respondents’ denial of its applications for business investment exemptions pursuant to Real Property Tax Law § 485-b. That statute grants a partial business investment tax exemption for "[r]eal property constructed, altered, installed or improved * * * for the purpose of commercial, business or industrial activity” (RPTL 485-b [1]). The tax exemption applies only to "real property used primarily for the buying, selling, storing or developing goods or services, the manufacture or assembly of goods or the processing of raw materials” (see, RPTL 485-b [5]).

LILCO maintains that its transmission and distribution property (utility poles and wires, and gas mains) constitutes real property used primarily for "selling” its utility services. We conclude the transmission and distribution equipment is used primarily to carry and conduct natural gas and electricity, and is not used primarily to "sell” its services as that term is used in the statute.

The purpose of the statute is to encourage business development (see, Matter of Pyramid Co. v Tibbets, 76 NY2d 148, 150; Newsday, Inc. v Town of Huntington, 82 AD2d 245, 246, affd 55 NY2d 272; Mem of State Executive Dept, 1976 McKinney’s Session Laws of NY, at 2309-2310). The underlying concept is that communities may invest in their future by temporarily foregoing tax revenues in order to attract new commercial and industrial developments to the area, thereby broadening the communities’ tax base or employment opportunities for their citizens. LILCO contends that granting the exemption on its transmission and distribution property will further this legislative purpose by reducing rates and leaving consumers with more funds to invest in the business community, and by motivating LILCO to upgrade its transmission and distribution property, thereby making Long Island more attractive to business enterprises. However, Real Property Tax Law § 485-b was not intended to generate such indirect aid to the development of the business community. Rather, it was directed at those activities which more immediately impact upon the economic growth and labor market of the community. Improvement of utility equipment, used primarily to transport LILCO’s products, neither falls within the enumerated primary uses entitled to a tax exemption, nor furthers the legislative purpose of fostering business development.

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

Order affirmed, with costs, in a memorandum.


text:
    [616 NE2d 847, 600 NYS2d 190]
    Hatzlachh Supply Company, Inc., Respondent, v Bank of America, New York, Also Known as Bankamerica International, Appellant.
    Decided June 8, 1993

      APPEARANCES OF COUNSEL

      Manuel & McKinney, New York City (Charles B. Manuel, Jr., of counsel), for appellant.

      Mallow, Konstam, Hager & Fischer, New York City (Leslie A. Hess of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division properly concluded that plaintiff was entitled to summary judgment. In its motion for summary judgment, plaintiff established that defendant improperly allowed release of the title to the purchased goods and that plaintiff was damaged in the amount of $161,078.58. The uncontroverted proof showed that plaintiff delivered to defendant a collection order for the goods which authorized release of documents of title only upon payment of $161,078.58 or upon receipt of a guarantee of payment from Savannah Bank. Defendant concedes that it delivered to Savannah Bank a modified collection order allowing for delivery of documents of title without payment or a guarantee of payment. Plaintiff was thereafter unable to collect the $161,078.58 due from the purchaser.

We find no merit to defendant’s contention that the proof failed to show that the documents of title had been transferred. Defendant’s concession that it delivered the collection order to Savannah Bank proves that the documents of title were transferred since the collection order was expressly subject to the International Chamber of Commerce Uniform Rules for Collections which require delivery of documents of title with collection orders.

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 affirmed, with costs, in a memorandum.


text:
    [616 NE2d 848, 600 NYS2d 191]
    Bankers Trust Company, Respondent, v Board of Managers of the Park 900 Condominium, Appellant, et al., Defendants.
    Argued April 28, 1993;
    decided June 8, 1993

      APPEARANCES OF COUNSEL

      Rosenberg & Estis, P. C., New York City (Gary M. Rosenberg and Jeffrey Turkel of counsel), for appellant.

      Moses & Singer, New York City (Joel David Sharrow, David B. Eizenman and Arthur F. Abelman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In November 1989, plaintiff Bankers Trust commenced this action to foreclose its first mortgage lien against two residential Manhattan condominium units owned by the nonappearing defendants, Joseph Pal and Josephine Pal. In addition to the first mortgage lien, these units were the subject of a statutory lien for unpaid common charges (Real Property Law § 339-z) that was filed on November 13, 1989, by defendant Board of Managers of the Park 900 Condominium. Allegedly, the Pals were indebted to the Board for unpaid common charges then totaling over $50,000, covering a lA-year period. The Board commenced a foreclosure proceeding regarding its lien (Real Property Law § 339-aa) at about the time that this action was initiated. Also, at some point prior to the commencement of these actions, the Board approved a SYi-year lease of one of the units by the Pals to defendant Joseph Wender, without requiring payment of the overdue charges.

The Board contends that its lien for unpaid common charges is not extinguished in a first mortgage foreclosure proceeding and that its lien should be paid out of the proceeds of the foreclosure sale. The bank successfully moved for summary judgment, asserting the priority of its lien and the extinguishment of the Board’s lien if there are no excess proceeds from a foreclosure sale.

The Appellate Division affirmed, concluding that a foreclosure sale to a first mortgagee was not a sale or voluntary transfer within the meaning of Real Property Law § 339-z, that the priority of liens established by the statute subordinated the common charges lien to a recorded first mortgage, that this interpretation of the statute was supported by the legislative history and that the by-laws of the Board recognized the priority of the first mortgage over any claim for common charges.

The issue before us is the proper interpretation of Real Property Law § 339-z and, specifically, whether that section provides for the survival of the statutory lien for common charges in the face of a first mortgage foreclosure and the payment of the sums due pursuant to that lien out of any proceeds of the foreclosure sale or from the purchaser (grantee) at the foreclosure sale. Section 339-z reads:

"§ 339-z. Lien for common charges; priority; exoneration of grantor and grantee.
"The board of managers, on behalf of the unit owners, shall have a lien on each unit for the unpaid common charges thereof, together with interest thereon, prior to all other liens except only (i) liens for taxes on the unit in favor of any assessing unit, school district, special district, county or other taxing unit, and (ii) all sums unpaid on a first mortgage of record or on a subordinate mortgage of record held by the New York job development authority or held by the New York state urban development corporation. Upon the sale or conveyance of a unit, such unpaid common charges shall be paid out of the sale proceeds or by the grantee. Any grantor or grantee of a unit shall be entitled to a statement from the manager or board of managers, setting forth the amount of the unpaid common charges accrued against the unit, and neither such grantor nor grantee shall be liable for, nor shall the unit conveyed be subject to a lien for, any unpaid common charges against such unit accrued prior to such conveyance in excess of the amount therein set forth. Notwithstanding the above, the declaration of an exclusive non-residential condominium may provide that the lien for common charges will be superior to any mortgage liens of record. ” (Emphasis supplied.)

The Board contends that the first mortgage foreclosure is a "sale or conveyance” and, therefore, that its lien should be paid out of those proceeds or by the grantee. However, this argument is not supported by the plain language and meaning of the statute. The statute specifically establishes a lien for the common charges in favor of the Board of Managers but grants priority to liens for "all sums unpaid on a first mortgage of record” (Real Property Law § 339-z). The first mortgage foreclosure sale, except to the extent that there are proceeds in excess of the first mortgage, would extinguish all prior liens, i.e., the Board’s statutory lien, and vest full title in the grantee (see, RPAPL 1353 [3]). Furthermore, as correctly stated by the Appellate Division, the "sale or conveyance” language in section 339-z refers to a sale or voluntary transfer of the condominium unit rather than to the foreclosure of a first mortgage. Thus, it is clear that the Legislature intended to subordinate liens for unpaid common charges to a first mortgage and it would be inconsistent with that intent to treat a first mortgage foreclosure as a "sale or conveyance” within the meaning of section 339-z.

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

Order affirmed, etc.


text:
    [616 NE2d 850, 600 NYS2d 193]
    In the Matter of Greentree At Lynbrook Condominium No. 1, Respondent, v Board of Assessors of the Village of Lynbrook et al., Appellants. (Matter No. 1.) In the Matter of Greentree At Lynbrook Condominium No. 2, Respondent, v Board of Assessors of the Village of Lynbrook et al., Appellants. (Matter No. 2.)
    Argued May 6, 1993;
    decided June 8, 1993
    APPEARANCES OF COUNSEL

      Jay F. Korth, Village Attorney of Village of Lynbrook, Lynbrook, for appellants.

      Certilman Balin Adler & Hyman, East Meadow (Dale Allinson of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

These are consolidated tax certiorari proceedings arising from real property tax assessments on two residential condominium buildings in the Village of Lynbrook, Nassau County. The issue is whether the Village of Lynbrook’s adoption of rent stabilization under the Emergency Tenant Protection Act of 1974 (McKinney’s Uncons Laws of NY § 8621 et seq. [L 1974, ch 576, §4]) (ETPA) requires assessors to value the subject condominium units, under Real Property Tax Law § 581, as if they were rent stabilized. Appellants, Board of Assessors of the Village of Lynbrook and Board of Assessment Review, urge that the properties should be valued without consideration of the rent stabilization regulations. Respondents, the board of managers of the condominiums, assert that the properties should be valued as if they are subject to rent stabilization.

Supreme Court held that the applicable statutory provisions required the subject properties to be assessed no higher than equivalent rental apartment buildings, which, in this case, were rent-stabilized apartment buildings. The Appellate Division affirmed, concluding that, pursuant to the ETPA and Real Property Tax Law § 581, the subject properties were required to be valued as if they were rent-stabilized rental properties (see, 184 AD2d 642). This Court granted leave to appeal. We affirm the order of the Appellate Division for the reasons that follow.

The two subject properties are adjacent condominium complexes which were established in 1968 in the Village of Lynbrook, Nassau County. The first condominium complex consists of 70 units, with 68 indoor parking spaces and 19 outdoor on-site parking spaces. The second consists of 60 units, with 44 indoor and 41 outdoor parking spaces. Both properties are zoned commercial with multifamily dwellings permitted, although the current uses constitute nonconforming preexisting ones due to insufficient on-site parking under current standards.

In 1975, the Board of Trustees of the Village of Lynbrook resolved, pursuant to the ETPA, that a public emergency existed requiring "the regulation of residential rents for all housing accommodations which consist of six (6) or more families dwelling therein.” As a result, all rental apartment buildings in the Village of Lynbrook with at least six units were subject to rent stabilization regulation. These proceedings arose out of appellants’ use of the "income capitalization” method of valuation to assess the subject properties, without regard to rent regulation guidelines, for the tax years January 1, 1981 through January 1, 1988.

Real Property Tax Law § 581 provides, in part:

“1. (a) Notwithstanding any other provision of law, real property owned or leased by a cooperative corporation or on a condominium basis shall be assessed for purposes of this chapter at a sum not exceeding the assessment which would be placed upon such parcel were the parcel not owned or leased by a cooperative corporation or on a condominium basis.”

That statute has been correctly construed to mean that "condominiums and cooperatives [should] be assessed as if they were conventional apartment houses whose occupants were rent paying tenants” (Matter of South Bay Dev. Corp. v Board of Assessors, 108 AD2d 493, 500).

The plain language of Real Property Tax Law § 581 mandates that the condominium status of the subject properties be disregarded for tax assessment purposes, and that the properties be assessed "at a sum not exceeding the assessment which would be placed upon such parcel were the parcel not owned * * * on a condominium basis.” As such, the properties are to be assessed as if they are rental properties (see, Matter of South Bay Dev. Corp., supra). All rental apartment buildings in the Village of Lynbrook with at least six units are subject to rent regulation under the ETPA. Thus, it follows that if the condominium status of the subject properties is disregarded, the properties are required to be assessed as if they are rent stabilized.

Appellants’ remaining contentions are without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    Ansonia Associates, Respondent, v Ansonia Tenants Coalition, Appellant.
    Submitted April 5, 1993;
    decided June 8, 1993
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as directed defendant to disgorge interest taken from rent escrow deposits, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as directed defendant’s attorneys to disgorge interest taken from rent escrow accounts, dismissed upon the ground that defendant is not aggrieved by that part of the order.

Judge Smith taking no part.


text:
    Jerome Levin, Appellant, v American Savings Bank, F.S.B., Respondent.
    Submitted April 19, 1993;
    decided June 8, 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 a nonfinal order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).

Judge Smith taking no part.


text:
    The People of the State of New York, Appellant, v Alberto Barriera, Respondent.
    Submitted June 8, 1993
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Margarita Rodriguez, Appellant, v New York City Board of Education et al., Respondents.
    Submitted April 5, 1993;
    decided June 8, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the order denying petitioner’s motion for renewal or reargument, dismissed upon the ground that that portion of the order does not finally determine the proceeding 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 James T. Sandoro, Doing Business as Buffalo Motor Car, Appellant, v State of New York Department of Motor Vehicles et al., Respondents.
    Submitted April 12, 1993;
    decided June 8, 1993
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution and are not nonfinal orders within the meaning of CPLR 5602 (a) (2).


text:
    Voorheesville Rod and Gun Club, Inc., Respondent, v E. W. Tompkins Company, Inc., Appellant.
    Submitted March 29, 1993;
    decided June 8, 1993
   Motion, treated as a motion for leave to appeal pursuant to CPLR 5602 (a) (1) (ii) to bring up for review the prior nonfinal Appellate Division order, granted. [See, 79 NY2d 805.]


author: Smith, J.

text:
    [619 NE2d 389, 601 NYS2d 452]
    In the Matter of Terry D., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued April 26, 1993;
    decided June 10, 1993

      APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City (Linda H. Young, Elizabeth S. Natrella, Pamela Seider Dolgow and Scott A. Korenbaum of counsel), for New York City Board of Education and Linda Marks, appellants.

      James H. Tatem for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, appellants’ cross motion to quash granted, and the certified question answered in the negative.

The juvenile delinquency petition and underlying complaint allege that on September 18, 1990, respondent Terry D., then one week shy of his 16th birthday, entered a classroom at Brandéis High School in Manhattan, cursed the teacher, blocked her exit and punched her in the head. Respondent was charged with various acts of juvenile delinquency.

At respondent’s request, a Family Court Judge issued a subpoena duces tecum directing Brandéis’ assistant principal to produce in court "the names, addresses and telephone numbers of each student and non students who were in the classroom” at the time of the incident. The subpoena was duly served, and when the assistant principal did not comply, respondent moved to have her held in contempt and the witness and Board of Education cross-moved to quash the subpoena.

In support of the contempt motion, respondent’s attorney averred that "the names, addresses and telephone numbers requested are the potential witnesses to the offenses,” and in opposition to the motion to quash, he stated that the information was sought "for only one purpose, to wit, to locate each [witness] and subpoena him or her to appear in court to testify as to the incident in question and what each saw.”

The motions were decided as follows:

"Motion to quash partially granted. If Linda Marks [the assistant principal] is willing to produce the persons whose names were requested by respondent at a time and place to be chosen together by Mr. Tatem [respondent’s counsel] and Ms. Marks, the names and other identifying information need not be provided. If such an arrangement is not acceptable to Ms. Marks, the motion to quash is denied and Ms. Marks is directed to produce the information as to names and telephone numbers or times the children can be brought to answer a telephone at school.”

The assistant principal and Board of Education appealed and the Appellate Division affirmed by a three-two vote. That court granted leave to appeal, and we now reverse.

The Family Court is a State-wide court of record whose processes, warrants and mandates may be served and executed throughout the State (NY Const, art VI, § 1; Judiciary Law § 2 [8]). Like other courts of record, the Family Court may subpoena a witness to testify (Judiciary Law § 2-b [1]; Family Ct Act § 153) and "is also authorized to issue a subpoena duces tecum in accordance with * * * the applicable provisions of the CPLR.” (Family Ct Act § 153.)

Because the statutory subpoena authority is so broad, and the recipient may be subject to contempt sanctions for failure to comply (Family Ct Act § 156; Judiciary Law § 750 [3]; Matter of Spector v Allen, 281 NY 251, 258-259), by necessity courts have imposed limitations on the use of subpoena power. Generally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence (People v Gissendanner, 48 NY2d 543, 551). "Rather, its purpose is 'to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding’ ” (Matter of Constantine v Leto, 157 AD2d 376, 378, affd for reasons stated 77 NY2d 975).

On this record, the inexorable conclusion is that the purpose of the subpoena duces tecum was to obtain otherwise unavailable discovery. The discovery provisions of the Family Court Act do not require blanket disclosure of the names of all eyewitnesses (see, Family Ct Act §§ 330.1-335.2), and thus respondent would ordinarily be required to unearth this information through his own investigation. Of course, if the presentment agency were aware of potentially exculpatory statements made by an eyewitness, the information would have to be disclosed upon request (see, People v Vilardi, 76 NY2d 67, 75-76; Brady v Maryland, 373 US 83, 87-88). Similarly, prior statements made by a presentment agency witness that relate to the subject matter of his or her testimony must be disclosed prior to cross-examination (Family Ct Act § 331.4 [1] [a]).

Respondent, however, cannot use the procedural mechanism of a subpoena duces tecum to expand the discovery available under existing law (see, People v Gissendanner, 48 NY2d, at 551). Yet in view of his motion papers it is evident that this is precisely what respondent sought to do. Thus, Family Court abused its discretion in denying appellants’ motion to quash.

The dissent agrees as to the governing legal principles, but differs only as to whether there was an abuse of discretion in applying those principles to the facts before us. In the dissent’s view, the purpose of the subpoena was to "secure the attendance of witnesses” (dissenting mem, at 1045). While it is true, of course, that the Constitution protects the right to require the attendance of witnesses (dissenting mem, at 1046; Pennsylvania v Ritchie, 480 US 39, 56), and that ultimately respondent may have sought to compel the witnesses’ attendance at a hearing with a subpoena ad testificandum, it is plain (and indeed fully conceded by respondent) that the function of this subpoena was to locate all eyewitnesses. Accordingly, there is no merit to the suggestion that respondent’s constitutional rights are implicated in these circumstances.

Given this result, it is unnecessary to reach the statutory issues addressed by the dissent.

Smith, J.

(dissenting). Contrary to the decision of the majority, I find no abuse of discretion by either the Family Court or the Appellate Division. Moreover, respondent’s effort to secure the attendance of witnesses to the alleged incident for which he has been charged is clearly within his rights. Accordingly, I dissent.

Respondent has been charged with juvenile delinquency in that on September 18, 1990, he entered a classroom at Brandéis High School in Manhattan, cursed a teacher and struck her. A subpoena duces tecum was issued by a Family Court Judge directing the assistant principal of the high school to produce "the names, addresses and telephone numbers of each student and non students who were in the classroom” when the alleged incident occurred. When the assistant principal did not comply, a motion was made to have her held in contempt. In response, she moved to quash the subpoena. Family Court granted the motion to quash in part. Specifically, Family Court gave the assistant principal the option of producing the persons whose names and addresses were requested rather than the names and other identifying information. In default of producing these persons, the other identifying information was to be supplied. It goes without saying that any production of the individuals could be accompanied by parents and/or counselors.

Respondent’s objective is to produce witnesses to the incident to testify in court. This right is protected by the Sixth and Fourteenth Amendments to the Constitution of the United States. Moreover, neither State nor Federal law prevents disclosure as urged by the assistant principal.

Education Law § 3212-a (1) provides:

"Each school shall maintain a record of the telephone number of each pupil enrolled in the school and each person in parental relation to such pupil including the residential and business telephone numbers of persons in parental relation to pupils unless such person or pupil chooses not to supply such numbers. The record of such telephone numbers shall, except as otherwise provided by law, be accessible solely for emergency purposes.”

The statute authorizes access to student telephone numbers in an emergency or as provided by law. As is indicated by its plain language, the purpose of the provision is to assure that lists of student telephone numbers are not released arbitrarily or for improper purposes. A judicial subpoena duces tecum, however, issued pursuant to statutory authority, qualifies under the "as otherwise provided by law” language. Thus, this statute does not bar the subpoena.

Nor does Federal law prohibit enforcement of the subpoena. The Family Educational Rights and Privacy Act provides:

"No [Federal] funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information * * * unless * * * such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency” (20 USC § 1232g [b] [2] [B]).

This Act does not proscribe the issuance of a subpoena directing that student records be produced. Rather, the Act provides that a school is at risk of losing Federal funding if it complies with such a subpoena without giving advance notice to parents and students. That is a matter for the school, however, not the authority issuing the subpoena.

Finally, the assistant principal argues that respondent made an insufficient showing to justify the subpoena and that he is misusing the court’s subpoena power to obtain discovery. These essentially fact-based determinations were resolved against the witness by the courts below and are reviewed here solely for abuse of discretion (see, People v Gissendanner, 48 NY2d 543, 550). In the circumstances presented, I conclude that the courts below did not abuse their discretion.

Accordingly, the order of the Appellate Division should be affirmed and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Simons, Titone and Bellacosa concur in memorandum; Judge Smith dissents and votes to affirm in an opinion in which Judge Hancock, Jr., concurs.

Order reversed, etc.

       The Act broadly defines "education records” as materials that "contain information directly related to a student” (20 USC § 1232g [a] [4] [A] [i]). There is also a category of records called "directory information” which consists of, among other things, students’ names, addresses and telephone numbers (20 USC § 1232g [a] [5] [A]). A school may make directory information public if parents are given an opportunity to opt out (see, 20 USC § 1232g [a] [5] [B]). Although there is no evidence that the school complied with the procedure for publishing directory information, that would not affect the production of directory information — a subcategory of "education records” — pursuant to subpoena (see, 20 USC § 1232g [b] [2] [B]).


text:
    [619 NE2d 392, 601 NYS2d 455]
    Robert N. Pless et al., Appellants, v Town of Royalton et al., Respondents.
    Argued May 4, 1993;
    decided June 10, 1993

      APPEARANCES OF COUNSEL

      Magner, Love & Morris, P. C., Buffalo (William J. Love, Jr., and Karen Kaczmarski of counsel), for appellants.

      David E. Seaman, Lockport, for respondents.
   OPINION OF THE COURT

Memorandum.

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

The issue before us is whether a municipality is estopped from certifying a road as abandoned due to nonuse for six years (Highway Law § 205 [1]) because, during the relevant period, it certified that the road was a highway for purposes of obtaining State highway funds.

It is not disputed that from 1982 through 1987 the Town included the parts of the road at issue in its calculation of Town highway miles to the State for highway maintenance funding. On October 20, 1987, the Town issued a certificate of abandonment for this road because it determined that the road had not been traveled or used as a highway during the prior six years. Plaintiffs, owners of property abutting this road, by their appeals have alleged that under these circumstances the Town should be estopped from issuing the certificate of abandonment. The Appellate Division rejected this argument and modified the judgment dismissing the complaint to declare that the road had been abandoned pursuant to Highway Law § 205 (1) (Pless v Town of Royalton, 185 AD2d 659, 660).

Although plaintiffs claim that the respondents should be estopped from certifying the road as abandoned, they have failed to establish that a declaration of abandonment is contradictory to the certification for State aid, have failed to allege reliance on the Town’s apparently inconsistent positions and have failed to provide any reason why estoppel should be invoked against the Town. "We have held many times that estoppel is not available against a governmental agency in the exercise of its governmental functions” (Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33 [citations omitted]). The rare exception to this general rule requires an " 'unusual factual situation’ ” (id., at 33, quoting Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88, 93, n 1). Such a situation is not presented in the case at bar. Indeed, to apply the doctrine of estoppel in this case would effectively require the municipality to designate those highways it believed would become abandoned in the next six years. Highway Law § 205 (1) does not require municipalities to engage in such speculation.

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

Order affirmed, with costs, in a memorandum.

       At trial and before the Appellate Division, plaintiffs unsuccessfully challenged the determination of nonuse.


text:
    In the Matter of Milton Pacheco, Appellant, v Donald Selsky, as Director of Special Housing/Inmate Disciplinary Program, et al., Respondents.
    Submitted April 26, 1993;
    decided June 10, 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 Bernard DeVeaux, Appellant.
    Submitted April 26, 1993;
    decided June 10, 1993
   Motion for leave to appeal dismissed upon the ground that it does not lie (see, CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    [619 NE2d 393, 601 NYS2d 456]
    John Doe, Appellant, v Office of Professional Medical Conduct of the New York State Department of Health, Respondent.
    Argued May 6, 1993;
    decided June 15, 1993

      APPEARANCES OF COUNSEL

      Coblence & Warner, New York City (Kenneth E. Warner of counsel), for appellant.

      Robert Abrams, Attorney-General, Albany (Barbara K. Hathaway and Jerry Boone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to plaintiff, in accordance with this memorandum and, as so modified, affirmed.

Plaintiff, a physician, seeks an order closing the disciplinary proceedings presently pending against him before defendant Office of Professional Medical Conduct (OPMC) pursuant to Public Health Law. The statute provides for the appointment of Committees on Professional Conduct which are to conduct "disciplinary proceedings” as prescribed in section 230 of that law (see, Public Health Law § 230 [3]-[7]). Section 230 (9) of the Public Health Law provides that these "proceedings” (emphasis added) shall not be subject to discovery. We have interpreted that subdivision, when read in conjunction with the statute as a whole, as mandating confidentiality in physician disciplinary proceedings (see, Matter of John P. v Whalen, 54 NY2d 89, 97; see also, Matter of Lazachek v Board of Regents, 101 AD2d 639, 641, lv denied 63 NY2d 608). Indeed, confidential proceedings had been the long-standing policy until that tradition was reversed by the Department of Health in 1983.

Our construction of the statute is consistent with the general policy that disciplinary proceedings involving licensed professionals remain confidential until finally determined (see, Matter of Johnson Newspaper Corp. v Melino, 77 NY2d 1, 10 [dentist]; Matter of Capoccia, 59 NY2d 549, 553 [attorney]; Matter of Doe v Axelrod, 123 AD2d 21, 30, revd on other grounds 71 NY2d 484 [recognizing that patient as well as physician has an interest in insuring confidentiality]; Matter of Lazachek v Board of Regents, 101 AD2d, at 641, supra [medical doctor]; see also, Matter of Stern v Morgenthau, 62 NY2d 331, 339 [judicial conduct proceedings]).

The policy of confidentiality in such cases, we have said, "serves the purpose of safeguarding information that a potential complainant may regard as private or confidential and thereby removes a possible disincentive to the filing of complaints” and it also "evinces a sensibility to the possibility of irreparable harm to a professional’s reputation resulting from unfounded accusations — a possibility which is enhanced by the more relaxed nature of the procedures and evidentiary rules followed in disciplinary proceedings in which hearsay evidence may be received” (Matter of Johnson Newspaper Corp. v Melino, 77 NY2d, at 10-11, supra). Accordingly, plaintiff’s application to prohibit public disclosure of the charges and proceedings against him should have been granted.

We recognize that there are substantial reasons for a contrary view favoring open disciplinary proceedings. In our view, however, the Legislature is in the best position to weigh conflicting policy values represented by these two approaches as they affect the various professions and enact consistent provisions for them giving appropriate protection to the interests of the parties and witnesses and the public interest.

We have considered the other issues raised by plaintiff and concur in the Appellate Division’s disposition of them.

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

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


text:
    [619 NE2d 395, 601 NYS2d 458]
    In the Matter of 4M Holding Company, Inc., Appellant, v Town Board of the Town of Islip et al., Respondents.
    Argued May 5, 1993;
    decided June 15, 1993

      APPEARANCES OF COUNSEL

      Shlimbaum, Shlimbaum & Jablonski, Islip (Lark J. Shlimbaum of counsel), for appellant.

      Vincent J. Messina, Jr., Acting Town Attorney of Town of Islip, Islip (Richard Hoffman of counsel), and Sinnreich Wasserman Grubin & Cahill, New York City (Michael J. Cahill and Jay Safar of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that respondent Town Board of Islip’s resolution requiring petitioner to clear 33,000 cubic yards of burning debris from its property in 10 days was not arbitrary, capricious or contrary to law. This Court has said, "[t]he arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified * * * and whether the administrative action is without foundation in fact’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 231 [citation omitted]). An arbitrary action is without basis in reason and is taken without regard to the facts (id.).

It cannot be said that requiring petitioner to clear the lot and extinguish the fire within 10 days was without basis in reason or taken without regard to the facts. Petitioner knew of the nuisance on its property for over a year and a half, the numerous previous fires on the property and the repeated demands by the Town to clear the property. Petitioner was aware, moreover, of the subsurface fire that had been continuously burning on the property for nine months prior to enactment of the resolution presently in question, which could not be extinguished by conventional fire fighting methods. Indeed, petitioner was aware of a Town Board resolution six months earlier directing petitioner and its tenant to clear the property and extinguish the fire. Given the history of the dispute and the public health and safety concerns raised by the presence of a continuous fire on the lot for nine months, the requirement that the lot be cleared in an expedited matter was justified.

We reject petitioner’s argument that the statement of the Town Public Works Supervisor that clearing the lot would take the Town 30 days renders the resolution arbitrary. The Town official based his conclusion on the assumption that the Town would use only four trucks to haul the debris. Under the circumstances, the Town was justified in requiring petitioner to use more trucks so as to clear the lot within the 10-day period.

We also disagree with petitioner’s argument that the resolution was contrary to the Town Law and the Islip Town Code. Both Town Law § 64 (5-a) and Islip Town Code § 32-5 (c) expressly authorize respondent to compel removal of debris from property and, upon noncompliance by the owner, to remove the debris at the expense of the owner. This Court has held that Town Boards may summarily abate nuisances in this manner in appropriate circumstances and compel property owners to bear the cost of abatement without prior notice (see, Lane v City of Mount Vernon, 38 NY2d 344). While the Town Law is silent as to the amount of time to be provided for compliance, the Town Code § 32-5 only requires that owners be given 10 days within which to comply or an additional "reasonable time giving due consideration to the amount of accumulation of rubbish or debris”. Given the history of the dispute, the repeated attempts to compel clearance of the property and the threat to public safety posed by the conditions on the property, allowing petitioner only 10 days to clear the lot was not contrary to section 32-5.

We have reviewed petitioner’s remaining contentions and find them to be without merit.

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

Order affirmed, with costs, in a memorandum.


author: Bellacosa, J.

text:
    [619 NE2d 396, 601 NYS2d 459]
    The People of the State of New York, Appellant, v David Holmes, Respondent.
    Argued April 29, 1993;
    decided June 15, 1993

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (David J. Mudd and Mark Dwyer of counsel), for appellant.

      Beverly Van Ness, New York City, and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In the early afternoon of December 23, 1989, two police officers, Frederick Nelthrope and John Moynihan, were in uniform in a marked patrol car heading north on Amsterdam Avenue between 163rd and 164th Streets in Manhattan. A group of men stood talking near a known narcotics location. Officer Moynihan noticed an unidentified bulge in defendant’s right jacket pocket. As the patrol car approached, the defendant left the group and walked away. Officer Moynihan called to the defendant to come over. As Officer Moynihan exited the police car, defendant ran and the police officers gave chase. As he ran on 163rd Street, defendant threw a plastic bag through a chain link fence and into a courtyard. The police officers caught the defendant. Thereafter, one of them proceeded to the courtyard where he recovered the plastic bag containing crack cocaine.

Defendant’s motion to suppress was denied following a hearing. Subsequently, he pleaded guilty to criminal possession of a controlled substance in the fifth degree. The Appellate Division unanimously reversed, vacated the guilty plea, granted defendant’s motion to suppress, and dismissed the indictment (181 AD2d 27). A Judge of this Court granted leave to appeal (80 NY2d 930).

Police pursuit of an individual "significantly impede[s]” the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed (People v Martinez, 80 NY2d 444, 447). Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit. The circumstance in People v Matienzo (81 NY2d 778) — which does indeed offer "valuable guidance” (see, dissenting mem, at 1060) — was that the defendant was seen exchanging a small plastic bag for money. In People v Martinez (supra), the defendant was observed removing a Hide-a-Key box, known to be used as a drug stash, from steel grate of a store window. In People v Leung (68 NY2d 734) the defendant was observed passing a manila envelope resembling "three dollar bags.” Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information (see, People v Hollman, 79 NY2d 181, 190; People v De Bour, 40 NY2d 210, 218-220), is insufficient to justify pursuit because an individual has a right "to be let alone” and refuse to respond to police inquiry (see, People v May, 81 NY2d 725, 727-728). These precedents establish principles to guide the police in what are often fast-developing encounters.

Applying these precedents, we agree with the Appellate Division that defendant’s motion to suppress should have been granted. While the police may have had an objective credible reason to approach defendant to request information — having observed him in a "known narcotics location” with an unidentified bulge in the pocket of his jacket — those circumstances, taken together with defendant’s flight, could not justify the significantly greater intrusion of police pursuit. Defendant was merely observed in the daytime, talking with a group of men on a New York City street. Given the unfortunate reality of crime in today’s society, many areas of New York City, at one time or another, have probably been described by the police as "high crime neighborhoods” or "narcotics-prone locations.” Moreover, a bulging jacket pocket is hardly indicative of criminality. As we have recognized, a pocket bulge, unlike a waistband bulge, "could be caused by any number of innocuous objects” (People v De Bour, 40 NY2d 210, 221, supra).

If these circumstances could combine with flight to justify pursuit, then in essence the right to inquire would be tantamount to the right to seize, and there would, in fact, be no right "to be let alone.” That is not, nor should it be, the law.

Finally, the Appellate Division’s determination that defendant’s relinquishment of the bag was in response to the unlawful police pursuit is a mixed question of law and fact supported by the record and thus beyond our review (see, People v Hollman, 79 NY2d, at 193-194, supra).

Bellacosa, J.

(dissenting). Respectfully dissenting, I vote to reverse and reinstate the conviction that rests on defendant’s plea of guilty to possession of drugs.

Police officers, patrolling in a car in the afternoon of December 23, 1989 near a "known narcotics location” in upper Manhattan, observed defendant with several other persons. One officer recognized several of the men as having been previously arrested for drug transactions at the same location. The officers noticed a "large bulge” in the right pocket of defendant’s leather jacket. As the patrol car approached, defendant began to back off from the group and then turned and walked away. The officers stopped the patrol car, and from inside the vehicle one officer called out to defendant, requesting him to come over. Defendant reacted by turning and moving towards the car. As the officer started to get out of the car, defendant turned again and ran in the opposite direction. The officers followed, one on foot and one in the car. The officer on foot, running about 10 feet behind defendant, never lost sight of him in the few minutes that transpired, and saw him throw a plastic bag containing 45 vials of crack cocaine through a chain link fence into a courtyard. Defendant was apprehended and charged with possession of the discarded drugs.

Supreme Court denied defendant’s suppression motion, finding that "the activities of the defendant escalated” such that "[t]he encounter * * * was proper as * * * initiated and the pursuit was justified”. Defendant’s toss of the bag during his departure from the scene was ruled an abandonment. The Appellate Division reversed, ironically concluding that the defendant’s conduct was lawful, but the police activity was unlawful.

Law has a tendency to gravitate towards levels of intellectual sophistication and subtlety, and then sometimes spins out to a realm of unreality in pursuit of a quixotic and illusory "right 'to be let alone’ ” (majority mem, at 1058). Something as elemental as running away from a police officer, after a concededly lawful approach and inquiry, should not be rendered per se legally meaningless, because the law then is propelled beyond reasonable comprehension or acceptance. The new right is then perceived and properly dubbed as a "right to run away”.

My particular frustration in this case stems in part from my total agreement with the Court that flight, together with "other specific circumstances indicating that the suspect may be engaged in criminal activity” (as occurred in this case to the experienced and seasoned eyes of the particular officers), provides a reasonable suspicion of criminality sufficient to justify pursuit (majority mem, at 1058). The other specific circumstances that should be considered with flight occur before, during and after a lawful police-civilian encounter. All the res gestae of the particular circumstance should govern. Yet, in diametric contrast, the Court allows the facts observed by the police and the immediate and continuing reactive conduct of defendant to a lawful approach and inquiry to be automatically thrown out the courthouse door, neutralizing the confluence of circumstances as "equivocal”.

That the Court has lost its analytical compass in this regard is evidenced by its apparent endorsement of the Appellate Division’s extrapolating a per se flight corollary out of the De Bour — Hollman tiers of authorized police activity. Every individual surely has a right to refuse to cooperate with the police on a street inquiry based purely on suspicion or hunch. However, to then leap to the proposition that flight can be given no legal significance whatsoever in an encounter based on an objective and credible reason is a major misdirection in these ever-proliferating cases. While it is supposed to be well established that flight can have some associated legal significance, that is plainly not the way the rules are being applied in fact-finding and reviewing courts (see, e.g., People v Madera, 189 AD2d 462, 468 [Ross, J., dissenting], lv granted 81 NY2d 1022; cf, also, People v Oeller, 191 AD2d 355, 359 [Rubin, J., dissenting], lv granted 81 NY2d 1022; People v Sierra, 190 AD2d 202; and see the cases cited in the respective majority and dissenting opinions of those recent cases at the Appellate Division).

People v Matienzo (81 NY2d 778) offers valuable guidance. Police officers approached defendant based upon an objective credible reason. This Court, in upholding the lawfulness of the police conduct, added that "[i]n the circumstances presented, defendant’s flight furnished reasonable suspicion that he had committed or was about to commit a crime such that pursuit by the officers was justified” (id., at 780). The instant case, endorsing the Appellate Division’s rejection of that sensible parallel under our extensively developed rules, belies and confuses the dynamics surrounding flight from police-civilian Street engagements by employing an analysis which is of an artificial and straitjacketed temporal sequential nature (contrast sharply, People v Martinez, 80 NY2d 444, 448). The courts are instructed to examine silent stills, while the police must act in talking, fast-moving, modern action scenes.

This case — and still others on appeal — illustrates once again many distressing questions as to what the police are supposed to do or even say in performing their jobs in these circumstances. I am unsure whether a police officer may persist in the effort to speak to someone, or may walk along, trot along, or just keep a suddenly fleeing person under "unobtrusive” surveillance in these street sequences. Presumably the rules, as applied, do not relegate the officers to the barefaced choice of meekly turning the other way. The Chaplinesque imagery of drug transactors running one way and the cops the other way dramatizes the majority’s decrying of the "unfortunate reality” that New York City suffers many " 'high crime neighborhoods’ ” and " 'narcotics-prone locations’ ” (majority mem, at 1058). What the Court fails to recognize is that rulings like this contribute to the environment and culture that spreads that "reality”. The bottom line is that this is a case about experienced police officers acting in a particular, known locale with respect to an all-too-typical narcotics transaction circumstance with known actors.

Judges at every court level are encountering obvious difficulty in deciding, with the benefit of reflection, what is lawful versus unlawful or relevant versus irrelevant or equivocal versus indicative of criminality. It is thus beyond my comprehension how anyone can reasonably expect the recent cascade of precedents from all courts, including this one, to guide the police in their instantaneous on-the-street decisions and actions relating to flight and pursuit.

Under the circumstances and pertinent rules, this Court should reverse, reinstate the guilty plea and remit this case to the Appellate Division to apply the correct dynamic criteria to decide this case. The per se flight blinder that continues to be interposed here and in countless other cases and street encounters is disconcerting.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Smith concur; Judge Bellacosa dissents and votes to reverse in an opinion.

Order affirmed in a memorandum.


text:
    [619 NE2d 400, 601 NYS2d 463]
    Charles Ayotte et al., Respondents, v Francis P. Gervasio et al., Defendants, and Joseph W. Le Febvre et al., Appellants. (And a Third-Party Action.)
    Decided June 15, 1993

      APPEARANCES OF COUNSEL

      Saul Aronson, Albany, and Francis E. Lehner for appellants.

      DeLorenzo, Gordon, Pasquariello, Weiskopf & Harding, P. C., Schenectady (Marshall P. Richer of counsel), 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.

"[T]he 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 demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). The "[failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (id., at 324). Here, in support of their summary judgment motion, movants merely assert that defendant’s negligent operation of his vehicle was the sole proximate cause of plaintiff’s injuries and that no triable issues of fact existed. These conclusory assertions are insufficient to demonstrate the absence of any material issues of fact.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, etc.


text:
    Frank Cangro, Appellant, v Mayor of the City of New York et al., Respondents.
    Submitted April 26, 1993;
    decided June 15, 1993
   Motion for leave to appeal dismissed upon the ground that no timely appeal to the Court of Appeals was taken from the judgment entered July 22,1992.


text:
    In the Matter of Joseph R. Guarding, an Attorney, Respondent. Grievance Committee for the Third Judicial District, Appellant.
    Submitted May 3, 1993;
    decided June 15, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying respondent-appellant’s motion for reargument or, in the alternative, leave to appeal, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Hwesu S. Murray, Appellant, v National Broadcasting Company, Inc., Respondent.
    Submitted May 17, 1993;
    decided June 15, 1993
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    The People of the State of New York, Respondent, v Angel Claudio, Appellant.
    Submitted May 24, 1993;
    decided June 15, 1993
   Motion for reargument of direct appeal granted. [See, 59 NY2d 556.] Appeal set down for oral argument on October 7, 1993. Appellant’s papers on appeal are to be served and filed on or before August 2, 1993 and respondent’s on or before September 16, 1993. Appellant’s reply papers, if any, are to be served and filed on or before September 23, 1993.

Chief Judge Kaye taking no part.


text:
    The People of the State of New York, Respondent, v Ronald Fraser, Appellant.
    Decided June 15, 1993
   Appeal dismissed upon the ground that the reversal by the Appellate Term was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Appellant, v Charles Sprowal, Respondent.
    Submitted May 3, 1993;
    decided June 15, 1993
   Motion to vacate April 13, 1993 order granted permission to appeal denied. [See, 81 NY2d 977.]


text:
    The People of the State of New York, Appellant, v William Walker, Respondent.
    Submitted May 24, 1993;
    decided June 15, 1993
   Motion for leave to appeal dismissed upon the ground that no civil appeal lies from the order entered in this criminal proceeding.


text:
    Alfred Spremo, Jr., Appellant, v Michael Dikman et al., Respondents.
    Submitted May 3, 1993;
    decided June 15, 1993
   Motion, pursuant to CPLR 5520 (a), for an extension of time to file a notice of appeal in the court of original instance granted. On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Alfred Spremo, Jr., Appellant, v Angelo Graci et al., Respondents.
    Submitted May 17, 1993;
    decided June 15, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, 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).


text:
    In the Matter of Alfred Spremo, Jr., Appellant, v Arthur W. Lonschein, as Justice of the New York State Supreme Court, et al., Respondents.
    Submitted May 17,1993;
    decided June 15, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, 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).


text:
    In the Matter of Alfred Spremo, Jr., Appellant, v Arthur W. Lonschein, as Justice of the New York State Supreme Court, et al., Respondents.
    Submitted May 17, 1993;
    decided June 15, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, 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).


text:
    In the Matter of Maria Spremo, Respondent, v Alfred Spremo, Appellant.
    Submitted May 3, 1993;
    decided June 15, 1993
   Motion, pursuant to CPLR 5520 (a), for an extension of time to file a notice of appeal in the court of original instance denied as unnecessary. On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.