text:
    Jacob M. Lehman et al., Appellants, v Shlomo Piontkowski, Respondent.
    Argued December 15, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      Abner P. Slatt for appellants.

      Eugene L. Wishod and Joseph H. Wishod for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (93 AD2d 809). We would only note that the expulsion of defendant as a director may not have been improper.

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


source: Caselaw Access Project

license: Public Domain

text:
    State of New York, Appellant, v Glen & Mohawk Milk Association, Inc., et al., Respondents.
    Argued December 12, 1983;
    decided January 10, 1984
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (.Richard Gabriele and Lloyd Constantine of counsel), for appellant.

      James G. Marsh and Karen P. Corteselli for Tuscan Dairy Farms, Inc., respondent.

      John Benjamin Carroll for Oneida Madison Milk Producers Cooperative Association, Inc., respondent.

      William L. Allen, Jr., for Northeast Dairy Cooperative Federation, Inc., and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

This is a civil antitrust action for declaratory and injunctive relief brought by the State against two dairymen’s cooperative corporations, three non-co-operative corporations engaged in milk processing and distribution, and four individual officers of those corporations. The State’s complaint alleges that the defendants violated section 340 of the General Business Law by entering into an agreement whereby competition in the purchasing of raw milk in New York State is or may be restrained. The issue presented on this appeal from the dismissal of that complaint is whether the conduct complained of is exempt from the provisions of the Donnelly Act by virtue of subdivision 3 of section 340 of the General Business Law, stating that the provisions of that act “shall not apply to cooperative associations, corporate or otherwise, of * * * dairymen * * * nor to contracts, agreements or arrangements made by such associations.” The complaint was properly dismissed because defendants’ activity falls with that statutory exemption.

In 1982, defendant Northeast Dairy Cooperative Federation, Inc. (NEDCO), purchased a milk manufacturing plant from Dellwood Foods, Inc. Both Dellwood and NEDCO then informed the dairy farmers from whom Dellwood had been purchasing raw milk that Dellwood would no longer be making such purchases, but that NEDCO assured a market for the milk of its co-operative members, including any Dellwood farmers who would choose such membership. In order to join NEDCO, the farmers would be required to pay an initial fee and allow NEDCO to deduct 11 cents from each hundredweight purchased for co-operative costs. The State’s complaint charges that these costs were excessive and that the Dellwood farmers therefore did not want to sell to NEDCO, but were unable to sell to others because of an agreement among defendants and others in violation of the Donnelly Act. According to the complaint, in a single agreement, defendants allocated the Dellwood farmers to NEDCO, refused to purchase raw milk from them, and further agreed to persuade, induce and coerce other milk dealers to refuse to purchase raw milk from them.

Defendants moved to dismiss the complaint for failure to state a claim on the ground that any agreement among them would be exempt from prosecution under subdivision 3 of section 340 of the Donnelly Act. Special Term granted the motion and the Appellate Division, by a divided court, affirmed. We now affirm.

The State argues that the dairymen’s co-operative exemption in the Donnelly Act was meant to apply only to what it considers to be co-operative-type activities, such as group marketing and sale of raw milk on behalf of individual producers, and cannot extend to the alleged agreement among milk purchasers involved here, or to non-co-operative defendants. Neither the language of subdivision 3 of section 340 nor its legislative history, however, lends itself to those conclusions.

The language of the statutory exemption is broad and unambiguous: neither the acts of a dairymen’s co-operative nor its contracts, agreements or arrangements with others may be the subject of an action under the Donnelly Act. Such a legislative declaration, clear on its face, cannot be ignored. (Matter of Kleefeld, 55 NY2d 253, 259.) The legislative history of the Donnelly Act, moreover, confirms the fact that no piecemeal exemption was intended. That history, set forth at length in the well-reasoned opinion in Margrove, Inc. v Upstate Milk Coop. (79 Misc 2d 309, 311-314, affd sub nom. Margrove, Inc. v Wegman’s Food Markets, 49 AD2d 669), shows a desire by the Legislature that dairymen’s co-operatives and those with whom they contract or agree, be free from regulation under the Donnelly Act. They were instead to be regulated under the Farms and Markets Law (now the Agriculture and Markets Law).

The present regulatory scheme under the Agriculture and Markets Law is pervasive. The Commissioner of Agriculture and Markets is given broad supervisory, investigative and rule-making powers (Agriculture and Markets Law, §§ 254, 255). Milk dealers must be licensed (Agriculture and Markets Law, § 257), and such licenses are subject to revocation by the commissioner for several stated reasons (Agriculture and Markets Law, § 258-c). The commissioner is authorized and directed to examine and audit the books of milk dealers and co-operatives to insure, among other things, that prices paid to milk producers are fair (Agriculture and Markets Law, § 25’6-a), and may even provide for the fixing of milk prices (Agriculture and Markets Law, § 258-m, subd 1). The commissioner is also specifically empowered to institute actions to enforce compliance with the provisions of that law, or any rules or orders promulgated thereunder (Agriculture and Markets Law, § 258-e).

As the complaint alleged a violation of the Donnelly Act by means of an agreement or arrangement among dairymen’s co-operatives and others involving the purchase and distribution of milk, and no other claim, it was properly dismissed as to all defendants under subdivision 3 of section 340 of the General Business Law.

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

Order affirmed, with costs in a memorandum.

      . Article 22 of the General Business Law, which includes section 340, is known as the Donnelly Act.

      . Where the Legislature has intended to limit a dairymen’s co-operative exemption to its co-operative-related activities, it has done so expressly. Subdivision (f) of section 258-c of the Agriculture and Markets Law provides that the only contracts or agreements of such co-operative deemed not to constitute an illegal monopoly for license-revocation purposes are those “making * * * collective sales and marketing (of daily products).” There is no similar limitation in the Donnelly Act.

      . While the State raises the spectre of misuse of this exemption by non-cooperatives who inveigle a co-operative into an unrelated trade restraint conspiracy solely to obtain immunity for themselves, such a situation is not alleged here. Our ruling today does not mandate the extension of the exemption of subdivision 3 of section 340 of the General Business Law to such an arrangement, and courts are able to act on such abuses should they arise.


text:
    The People of the State of New York, Respondent, v Steven Morello, Appellant.
    Argued December 13, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      Irving Anolik for appellant.

      Mario Merola, District Attorney (Peter D. Coddington and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the Appellate Division’s memorandum (92 AD2d 458). We add only that defendant’s argument that the mention of the name “Mongo” in testimony by one of the People’s witnesses required a mistrial is unpersuasive. There was no evidence that “Mongo” had particular reference to defendant or particular meaning to the jurors, and they were in any event instructed to disregard the testimony mentioning “Mongo”. We note that defendant never requested that the jurors be questioned to determine if prejudice resulted from the stricken testimony. Moreover, in view of defendant’s admission and the circumstantial evidence supporting his conviction, any error resulting from mention of “Mongo” would have been harmless.

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

Order affirmed in a memorandum.


text:
    Herman Bugge, Appellant, v Harold W. Sweet, Respondent.
    Argued December 14, 1983;
    decided January 10, 1984

      APPEARANCES OF COUNSEL

      Richard A. Rothermel for appellant.

      Livingston S. Latham for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (90 AD2d 858).

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


text:
    Arthur Young & Company, Appellant, v Robert W. Black, Respondent.
    Decided January 10, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the question certified does not present a question of law decisive of the correctness of the determination of the Appellate Division.


text:
    David Bell, Appellant, v Orange County Publications Division of Ottaway Newspapers, Inc., et al., Respondents.
    Submitted December 12, 1983;
    decided January 10, 1984
   Motion for leave to appeal dismissed upon the ground that supporting papers, including brief, were not served at least eight days prior to the statutory return date of the motion (Dellaratta v International House of Pancakes, 46 NY2d 936; CPLR 5516, 2214; 22 NYCRR 500.11 [formerly 500.9]).


text:
    In the Matter of Henry G. McComb, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted December 27, 1983;
    decided January 10, 1984
   Motion treated as one for reargument or for leave to appeal, dismissed for untimeliness (rule 500.11 [g] [3] [22 NYCRR 500.11 (g) (3)]; CPLR 5514, subd [a]; 5513, subd [b]). [See 60 NY2d 643.]


text:
    In the Matter of Anthony Plummer, Appellant, v Harold J. Rothwax, as a Justice of the New York State Supreme Court, et al., Respondents.
    Submitted December 5, 1983;
    decided January 10, 1984
   Motion to dismiss appeal denied.


text:
    In the Matter of William C. Kingsley, Respondent, v Redevco Corporation, Appellant.
    Decided January 12, 1984

      APPEARANCES OF COUNSEL

      Hyman Clurfeld for appellant.

      David M. Schuller for respondent.
   OPINION OF THE COURT

Memorandum.

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

On August 26, 1981, the American Arbitration Association (AAA) mailed to respondent a notice that its dispute with petitioner would be the subject of an arbitration hearing to be held on October 2, 1981. On two subsequent occasions, the AAA again reminded respondent, by letters dated September 25 and September 30, 1981, that the hearing would proceed on October 2 as scheduled.

Nevertheless, respondent failed to appear at the hearing without requesting either an adjournment or a continuance. Having been provided adequate notice of and an opportunity to be heard at the hearing, respondent’s claim that it was deprived of due process is without merit. (Silverstein v Minkin, 49 NY2d 260, 263; Mullane v Central Hanover Trust Co., 339 US 306, 314.) That various temporary stays were issued but expired or were withdrawn prior to the commencement of the hearing does not alter the fact that respondent failed to either request an adjournment or attend the hearing despite having been afforded an opportunity to do both.

Respondent also claims that the hearing was held in violation of AAA rule number 21 which requires the AAA to mail to each party notice of the hearing at least five days in advance. Inasmuch as this rule was incorporated by reference into the parties’ agreement via a broad provision providing for arbitration of all disputes and controversies, the question whether the rule was complied with is one for the arbitrators to decide and is not subject to review by this court. (See Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358, 363.) To be distinguished is the case where a party asserts a claim that the notice requirements of CPLR 7506 (subd [b]) were not satisfied. In such cases, the court is authorized to review the claim. (CPLR 7511, subd [b], par 1, cl [iv]; see, also, Matter of PPX Enterprises [Ducale Edizione Musicali], 42 NY2d 897.)

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye concur; Judge Simons 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:
    Patrick W. Vance et al., Appellants, v Century Apartments Associates et al.,.Respondents.
    Argued December 13, 1983;
    decided January 12, 1984

      APPEARANCES OF COUNSEL

      Menachem J. Kastner and Mark Abramowitz for appellants.

      Robert D. Goldstein and Jeffrey R. Metz 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 affirmative.

Under the provisions of the new section 226-b of the Real Property Law, whose provisions are expressly applicable to all pending actions and proceedings, release from the lease is the sole remedy of a tenant where the landlord has unreasonably withheld consent to the tenant’s request to assign the lease. Without deciding the reasonableness of the defendants landlords’ refusal to consent to the attempted assignment, we note that plaintiffs tenants have accepted defendants’ offer to be released from the lease and, therefore, they have received all the relief the Real Property Law provides.

We have considered plaintiffs’ other claims and find them to be without merit.

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

Order affirmed, etc.


text:
    In the Matter of Robert Abrams, as Attorney-General of the State of New York, Appellant, v Public Service Commission of the State of New York et al., Respondents.
    Decided January 12, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Richard W. Golden of counsel), appellant pro se.

      Timothy P. Sheehan for Public Service Commission of the State of New York, respondent.

      Ernest J. Ierardi for Rochester Gas & Electric Corporation and others, respondents.

      Gerard A. Maher for Orange & Rockland Utilities, Inc., respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (96 AD2d 701).

Concur: Chief Judge Cooke and Judges Jones, Wachtler, Meyer and Kaye. Taking no part: Judges Jasen and Simons.


text:
    In the Matter of the Arbitration between Asoma (Bangkok) Co., Ltd., Respondent, and Thai Flourite Processing Co., Ltd., Appellant.
    Decided January 12, 1984
    APPEARANCES OF COUNSEL

      Joanne Barak for appellant.

      David S. Klafter for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. Nothing supports the contention of the appellant that in making the award herein the arbitrator exceeded his power (CPLR 7511, subd [b], par 1, cl [iii]).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye. Taking no part: Judge Simons.


text:
    Lori-Kay Golf, Inc., et al., Plaintiffs, v Michael Lassner et al., Defendants, Robert H. Finkelstein, Respondent, and United States Fidelity & Guaranty Company, Appellant. Robert H. Finkelstein, Third-Party Plaintiff, v Maurice-Phillips et al., Third-Party Defendants.
    Argued December 13, 1983;
    decided January 12, 1984

      APPEARANCES OF COUNSEL

      Morris Block for appellant.

      Emanuel Thebner for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the cross claim of the appellant, United States Fidelity & Guaranty Co., against respondent Finkelstein for counsel fees, should be reinstated.

Defendant Finkelstein was appointed receiver of certain real property pursuant to a court order requiring him to post a bond. The bond was furnished by appellant, United States Fidelity & Guaranty (USF&G). Subsequently plaintiff Lori-Kay Golf brought an action for wrongful eviction against Finkelstein as receiver and against USF&G as surety on the bond. The surety cross-claimed against Finkelstein for indemnification including counsel fees.

The trial court dismissed Lori-Kay’s complaint against Finkelstein and USF&G. The court also dismissed USF&G’s cross complaint for counsel fees on the ground that the primary suit alleged a tort and not a breach of the fiduciary’s obligation and thus was beyond the scope of the bond.

The Appellate Division modified with respect to other parties and actions not involved on this appeal. USF&G has appealed the Appellate Division’s order insofar as it affirmed the dismissal of its cross complaint.

As a general rule a surety is equitably entitled to full indemnity against the consequences of a principal obligor’s default (Thompson v Taylor, 72 NY 32; Leghorn v Ross, 53 AD2d 560). This includes the right to reimbursement for legal fees incurred in defending an action brought against the principal even though it may be groundless (see, e.g., Bank of N. Y. v Hirschfeld, 59 AD2d 976; 11 Appelman, Insurance Law and Practice, § 6399, pp 240-241). The purpose of a receiver’s bond is generally understood to be to insure the fiduciary’s obligation to the property owner; but the parties are free to fashion the terms of their own agreement (Leghorn v Ross, supra).

In this case Finkelstein agreed in the bond application to “indemnify and save the Company harmless from any and all liabilities * * * counsel fees, and expenses of whatever kind or nature, which it [the surety] shall or may, for any cause, at any time, sustain or incur, or be put to, by reason or in consequence of its having executed said bond”. He further agreed that “if any suit is brought on the bond herein” he would “repay the Company counsel fees and all other costs and expenses to which the Company may be put in defense of such suit”.

The legal fees incurred by the surety in defense of Lori-Kay’s action come within the express terms of this agreement. Here, Finkelstein was sued in his capacity as receiver for his actions in administering the property entrusted to his care pursuant to the court order. USF&G was sued as surety as a result of its having issued the bond to Finkelstein in connection with that receivership. The fact that the suit the surety was required to defend alleged a tort, and not a breach of the fiduciary’s obligation, is of no consequence under the broadly worded terms of this particular indemnification agreement. Thus the courts below should not have dismissed USF&G’s cross claim for counsel fees. •

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

Order reversed, with costs, and defendant United States Fidelity and Guaranty Company’s cross claim against defendant Finkelstein reinstated in a memorandum.


text:
    The People of the State of New York, Respondent, v William L. Luther, II, Appellant.-
    Argued December 15, 1983;
    decided January 12, 1984

      APPEARANCES OF COUNSEL

      J. Raymond Fisher for appellant.

      Sol Greenberg, District Attorney (F. Patrick Jeffers and Lynda L. Venezia of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

Defendant was indicted for criminal sale of a controlled substance. The Trial Judge charged criminal facilitation and criminal possession of a controlled substance as lesser included offenses, over objection as to facilitation. The jury acquitted defendant of the sale, convicted him of facilitation and therefore as instructed, did not consider possession.

The Appellate Division correctly concluded that facilitation is not a lesser included offense of sale (People v Glover, 57 NY2d 61) and that it was error to submit that charge to the jury. In purported reliance on CPL 470.15 (subd 2, par [a]), the Appellate Division reduced the invalid facilitation conviction to possession, because in its view the evidence provided proof beyond a reasonable doubt of possession. Inasmuch as possession is not a lesser included offense of facilitation, the conviction could not be so reduced. Nor may the reduction be based upon the charge of criminal sale, because defendant was acquitted of that charge. Accordingly the indictment should be dismissed (People v Mayo, 48 NY2d 245).

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Caesar Rojas, Appellant.
    Argued December 14, 1983;
    decided January 12, 1984

      APPEARANCES OF COUNSEL

      Daniel E. Rosen and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Richard E, Haftel and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that his motion for dismissal of the assault, second degree, charge should have been granted because the People failed to prove that the victim suffered “substantial pain” within the meaning of subdivision 9 of section 10.00 and subdivision 2 of section 120.05 of the Penal Law. The People rejoin that they are only required to prove that there was more than a technical battery and that, in any event, infliction of an injury by gunshot is sufficient.

The latter argument overlooks the fact that each of the sections defining assault requires “physical injury” or “serious physical injury,” but increases the degree of the crime, and thus the punishment, depending upon whether an instrument was used and if so what kind. That the injury is by gunshot cannot, therefore, establish substantial pain, without more.

We agree with the courts below, however, that the evidence was sufficient to sustain the charge. Whether the “substantial pain” necessary to establish an assault charge has been proved is generally a question for the trier of fact (Matter of Philip A., 49 NY2d 198, 200). Where, as here, there is testimony that the bullet caused a laceration of the victim’s back 1.5 inches in length, the result of which was still visible at the time of trial, that the victim returned to the hospital the day after the assault where the wound was redressed because it was oozing, and the doctor testified that the injury could have caused pain, the jury could infer that the pain was substantial, even though the victim gave no testimony concerning the degree of pain he felt. The subjective reaction of the victim is but one factor for the jury to consider (Matter of Philip A., supra). People v Jimenez (55 NY2d 895), on which defendant relies, is distinguishable, there having been no testimony in that case that the much smaller cut there involved left any mark on the skin or required medical treatment.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Norman Trendell, Appellant.
    Argued December 15, 1983;
    decided January 12, 1984
    APPEARANCES OF COUNSEL

      Condon Lyons for appellant.

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be reversed and a new trial ordered.

Appellant has been convicted of petit larceny arising from the theft of two pairs of sunglasses from a drug store. At a hearing on the suppression motion, the Town Court of Guilderland set the trial date for February 12, 1980. The trial was thereafter rescheduled by the court for February 13, but appellant failed to appear. On February 13, appellant’s counsel sought a continuance, explaining that he had tried without success to reach his client in order to advise him of the change from February 12 to February 13. The court indicated that it had issued a bench warrant that morning for appellant’s arrest but the officer assigned to the warrant learned that appellant had left both his job and home a week earlier. Concluding that appellant by his absence had knowingly and intentionally waived his right to be present at the trial, the court denied the request for a continuance. Over counsel’s repeated objection, appellant was tried in absentia.

About two weeks after the conviction, appellant voluntarily appeared in court for sentencing. The court imposed a one-year jail term, the maximum possible sentence. On appeal, the County Court affirmed, three weeks before our decision in People v Parker (57 NY2d 136). In Parker, we held that to effect a voluntary, knowing and intelligent waiver, “the defendant must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences of failing to appear for trial” (People v Parker, supra, at p 141). The record here is devoid of any indication that appellant was informed that the trial would proceed in his absence.

The People urge that Parker should not be applied to misdemeanor prosecutions because to do so would be to impose an undue burden on local courts. The defendant’s right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions (People v Parker, supra, at p 139; NY Const, art I, § 6; US Const, 6th Arndt). This right cannot be compromised because only a misdemeanor ife charged.

Appellant contends the information should be dismissed because of its failure to specify larcenous intent. Since the omission did not constitute a jurisdictional defect, there is no basis to dismiss the information. Nor is there any merit to appellant’s contention that the information should be dismissed because, at trial, identification of him by name was based on hearsay, his name having been learned by the witness from others. The same witness had identified appellant in person and by name by pointing to him at the suppression hearing, and the identification testimony at trial was therefore competent evidence.

We have considered appellant’s remaining contentions and find them to be without merit.

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

Order reversed, etc.


text:
    In the Matter of Arthur Quinn, Respondent, v Henry Tutunjian et al., Constituting the Rensselaer County Board of Elections, Respondents, and Nelson Williams, Jr., Appellant.
    Argued January 11, 1984;
    decided January 12, 1984

      APPEARANCES OF COUNSEL

      Thomas V. Kenney, Jr., for appellant.

      David R. Dudley for respondent.
   OPINION OF THE COURT

Order affirmed, without costs. We agree with the Appellate Division that the mark was not in the voting square as required by section 9-112 of the Election Law.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye. Taking no part: Judge Simons.


author: Simons, J.

text:
    151 West Associates, Appellant, v Printsiples Fabric Corp. et al., Respondents.
    Argued December 12, 1983;
    decided January 12, 1984
    APPEARANCES OF COUNSEL

      Douglas A. Cooper and Steven S. Pass for appellant.

      Michael B. Goldsmith for Printsiples Fabric Corp., respondent.

      Robert W. Corcoran for Futterman-Schlang Industries, Ltd., respondent.
   OPINION OF THE COURT

Memorandum.

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

In this ejectment action, the majority at the Appellate Division properly applied the rule that where there is an ambiguity as to the meaning of a provision of a lease, prepared by the landlord, the ambiguity should be resolved in favor of the tenant.

In September, 1975, landlord 151 West Associates leased certain premises to tenant Printsiples Fabric Corp. for a term of 10 years. In August, 1978, the tenant sublet to Futterman-Schlang Industries, Ltd., subject to the terms of the main lease with the approval of the landlord. Shortly thereafter, the tenant encountered serious financial difficulties, a committee of its creditors was formed, and in April, 1980, the creditors entered into an agreement with a third party, Norcnote Associates, wherein the latter purchased all of their claims against the tenant, subject to certain conditions, and took from them an assignment of those claims. The tenant, although not a party to the agreement, consented to be bound by its terms.

In July, 1980, the landlord informed both tenant and subtenant Futterman of its intention to terminate the main lease pursuant to the “Bankruptcy” clause therein, which provided: “Bankruptcy: 16. (a) If at the date fixed as the commencement of the term of this lease or if at any time during the term hereby demised there shall be filed by or against Tenant in any court pursuant to any statute either of the United States or of any state, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant’s property, and within 60 days thereof, Tenant fails to secure a dismissal thereof, or if Tenant make an assignment for the benefit of creditors or petition for or enter into an arrangement, this lease, at the option of Landlord, exercised within a reasonable time after notice of the happening of any one or more of such events, may be cancelled and terminated by written notice to the Tenant (but if any of such events occur prior to the commencement date, this lease shall be ipso facto cancelled and terminated)”. (Emphasis added.) This ejectment action ensued.

The specific issue to be resolved is the meaning of the term “arrangement” as used in the lease. While the “Bankruptcy” clause expressly authorizes the landlord to cancel the lease should tenant “petition for or enter into an arrangement”, the nature of such an “arrangement” within the contemplation of the parties is nowhere explained. The landlord contends that the agreement between tenant’s creditors and Norcnote Associates constituted an “arrangement” which triggered the cancellation provisions in the “Bankruptcy” clause of the lease. The majority at the Appellate Division held otherwise and we agree.

It has long been the rule that ambiguities in a contractual instrument will be resolved contra proferentem, against the party who prepared or presented it. (Taylor v United States Cas. Co., 269 NY 360, 364.) Moreover, unless the terms of a lease are clear, no additional requirements or liabilities will be imposed upon a tenant. (67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245, 249; 455 Seventh Ave. v Hussey Realty Corp., 295 NY 166, 172.) Consequently, here, where there is uncertainty in the lease as to the meaning of “arrangement”, the ambiguity should be resolved against the landlord.

Indeed, to the extent that the “Bankruptcy” clause in the lease can be reasonably construed, its provisions do not favor the landlord. In light of both the “Bankruptcy” title of the clause and the nature of the other provisions contained therein, the phrase “petition for or enter into an arrangement” makes sense only with reference to the Bankruptcy Act of 1938 in effect at the' time the lease was entered. The provisions of that now replaced statute explicitly addressed and defined “arrangements” and “petitions” therefor in chapter 11, entitled “Arrangements”. (US Code, tit 11, former §§ 701-799.) Under its provisions, an arrangement required a petition to be filed in a pending bankruptcy proceeding, or, if none were pending, with the court which would have jurisdiction of a bankruptcy adjudication. (US Code, tit 11, former §§ 721, 722.)

In this case, there has been neither a petition filed nor a bankruptcy or separate arrangement proceeding commenced. Clearly, tenant did not “petition for or enter into an arrangement” within the meaning of the old Bankruptcy Act. Consequently, the termination provision of the “Bankruptcy” clause was never triggered.

Simons, J.

(dissenting). I would reverse and grant plaintiff summary judgment evicting defendants for reasons stated in the dissent of Justice Sullivan at the Appellate Division (92 AD2d 76, 81).

As did he, I find that the conduct of the tenant, Printsiples Fabric Corporation, came well within the language of paragraph 16 (a) of the lease entitling plaintiff to relief. Although hopelessly insolvent, Printsiples remained in business by delaying payment of its debts and eventually satisfying them by the payment of 161/2% of the sums due. Either act, delaying payment or the composition of creditors, was an arrangement sufficient to bring paragraph 16 (a) into play.

That Printsiples operated through Norcnote, who on the one hand took Printsiples stock thereby becoming in effect the debtor and on the other took assignments of the creditor’s claims against Printsiples thereby becoming the creditor, added nothing to the transaction as far as the landlord was concerned. It was left with a tenant who had neither credit nor control of its assets. Nor does the fact that the subtenant remained answerable for the debt add anything to the case. The landlord leased the property to the tenant based upon the tenant’s credit and with the understanding it could cancel the lease if the tenant became insolvent. Presumably, it consented to the sublease, not because it relied on the subtenant’s credit, but quite the opposite, because it still had the security of the original tenant and the remedy of paragraph 16 (a) if Printsiples suffered financial distress.

Printsiples’ present financial condition is precisely the risk paragraph 16 (a) was designed to protect against and the language the parties used for the purpose is clear and unambiguous. The first portion of that paragraph condemns as conduct sufficient to trigger termination of the lease the filing by or against the tenant pursuant to a Federal or State statute, a petition in bankruptcy or insolvency or for the reorganization or for the appointment of a receiver or trustee. The words condemn formal insolvency proceedings. The second clause of the paragraph refers to less formal actions relating to an obviously insolvent tenant, an assignment for the benefit of creditors or a petition for or the mere entering into an arrangement.

The meaning of the words can be found in a law dictionary but any question of what the parties meant by an arrangement can best be found by the parties’ own perception of what it meant. Thus, the tenant as a party to the Norcnote/Printsiples/creditors transactions understood the word arrangement in precisely the sense urged by plaintiff here. In the agreement between Norcnote and its creditors which was “approved by [Printsiples by] separate rider”, the tenant equated the word “arrangement” to a settlement among the creditors affecting the debtor. The pertinent part of the agreement reads as follows: “It is understood that all other claims shall be subordinated to the claims of the Purchaser with respect to such inventory purchased with fund [szc] provided by the Purchaser (and its associates) and the proceeds of the sale thereof, in the event of any bankruptcy or state insolvency proceeding, or any assignment for the benefit of creditors or any other nonjudicial arrangement or settlement among creditors affecting the Debtor” (emphasis added).

The parties’ language tracked the language of paragraph 16 (a) precisely. First, the parties referred to a bankruptcy or State insolvency proceeding and thereafter they referred to an assignment for the benefit of creditors or any other nonjudicial arrangement or settlement. Since the only definition which the term arrangement could possibly have other than the one referred to in Black’s Law Dictionary was the bankruptcy arrangement contained in chapter 11 of the old Bankruptcy Act which was a judicial proceeding, the parties’ reference to a nonjudicial arrangement or settlement must, by any fair reading of the language of the paragraph and the intent of the parties, be deemed to encompass the very transaction which Printsiples entered into here.

The majority, disregarding this evidence of intent construe paragraph 16 (a) as if the quoted language was conjunctive, not disjunctive. But the tenant agreed that the lease could be canceled if the tenant became bankrupt “or if Tenant make an assignment for the benefit of creditors or petition for or enter into an arrangement”. Manifestly, under this provision formal proceedings are not required to trigger the landlord’s rights; the broad language of the lease contemplates and encompasses precisely the type of scheme devised here and there is no justification to excise the words “enter into an arrangement” or to construe the phrase as a redundancy referring to formal proceedings.

The general rule is that “[ajbsent some element of fraud, exploitive overreaching or unconscionable conduct on the part of the landlord to exploit a technical breach, there is no warrant, either in law or equity, for a court to refuse enforcement of the agreement of the parties” (Fifty States Mgt. Corp. v Pioneer Auto Parks, 46 NY2d 573, 577). There being no proof of such conduct by the landlord here, it is not for the court to undo the language- of a solemn lease agreement and destabilize the rights of the parties (see W.F.M. Rest, v Austern, 35 NY2d 610). The tenant’s “arrangement” to stave off bankruptcy may have been different from that commonly used but it still was an arrangement necessitated by the insolvency of the tenant and plaintiff was entitled to evict it.

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

Order affirmed, with costs, in a memorandum.

       We disagree with the contention in the dissenting opinion that the mere use of the same word “arrangement” in the agreement between Norcnote and the tenant’s creditors is dispositive of the meaning of that term as employed in the expressly entitled “Bankruptcy” clause of the lease. Not only were the instruments written and entered into by different parties, but also the former explicitly refers to a “nonjudicial arrangement or settlement” (emphasis added), while the latter speaks of the tenant “petitioning] for or entering] into an arrangement”, clearly referring to a judicial proceeding within the contemplation of the old Bankruptcy Act which was no longer in effect at the time of the agreement between Norcnote and the tenant’s creditors.


text:
    In the Matter of Nelson Williams, Jr., Respondent, v Rensselaer County Board of Elections et al., Respondents, and Thomas M. Monahan, Jr., et al., Appellants.
    Argued January 11, 1984;
    decided January 12, 1984
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of Programming and Systems, Inc., Appellant, v New York State Urban Development Corporation, Respondent.
    Argued January 4, 1984;
    decided January 17, 1984

      APPEARANCES OF COUNSEL

      Lester J. Tanner for appellant.

      David Paget and Gail S. Port for respondent.
   OPINION OF THE COURT

Memorandum.

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

An environmental impact statement mandated by ECL 8-0109 must be prepared and made available to the public before “any significant authorization is granted for a specific proposal.” (Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41, 47.) While preliminary steps in the planning of the 42nd Street Development Project have been taken, an environmental impact statement is not required until a specific project plan for the development is actually formulated and proposed. At that time, prior to acting on the proposal, the statement must be prepared, filed and made available to the public. (ECL 8-0109, subd 6.)

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Richard C. McKenna, Respondent, v County of Nassau, Office of the County Attorney, Appellant.
    Decided January 17, 1984

      APPEARANCES OF COUNSEL

      Edward, G. McCabe, County Attorney (.Robert 0. Boyhan of counsel), for appellant.

      Marc D. Mattes for respondent.
   OPINION OF THE COURT

Memorandum.

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

The errors alleged by the County of Nassau on the motion to vacate the prior judgment do not constitute grounds for relief under CPLR 5015. Special Term abused its discretion in reopening its judgment to correct a perceived error of law that could have been raised on the prior appeals to the Appellate Division and to this court. A court’s inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party “from judgments taken through [fraud,] ‘mistake, inadvertence, surprise or excusable neglect’ ” (Ladd v Stevenson, 112 NY 325, 332).

Furthermore, in reopening the judgment, Special Term modified the arbitrator’s award, and, in doing so, exceeded the narrow bounds within which courts are authorized to alter such awards. Clearly, the arbitrator’s award cannot be termed “so irrational as to require vacatur” (Matter of Garcia v Federal Ins. Co., 46 NY2d 1040, 1041). An award of interest under subdivision 1 of section 675 of the Insurance Law at the rate of 2%, compounded monthly, is warranted, if not mandated, by 11 NYCRR 65.15 (g) (1). Finally, the county’s contention that section 3-a of the General Municipal Law relieves municipalities from paying the statutory 2% interest rate on overdue no-fault payments is insufficient to justify modification of the award. The No-Fault Law’s legislative purpose of “guaranteeing prompt and full compensation for economic losses” (Montgomery v Daniels, 38 NY2d 41, 55) is furthered by the provision in section 675 of the Insurance Law for payment of 2% monthly interest on awards not paid within 30 days. The Legislature provided no exception to this interest rate for municipalities operating as self-insurers, and it is thus not irrational to assume that municipal self-insurers should be treated, under the No-Fault Law, in the same manner as any insurance company. (Cf. Matter of City of Syracuse v Utica Mut. Ins. Co., 61 NY2d 691.)

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye concur; Judge Simons 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:
    In the Matter of L. Edward Dueger et al., Appellants, v Zoning Board of Appeals of the Incorporated Village of Lloyd Harbor, Respondent.
    Decided January 17, 1984

      APPEARANCES OF COUNSEL

      James J. Byrne for appellants.

      Peter M. Weiler for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (96 AD2d 905).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye. Taking no part: Judge Simons.


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    Legal Aid Society, Appellant, v Benjamin Ward, as Commissioner of the Department of Correction of the City of New York, Respondent. In the Matter of Naomi Burns et al., Appellants, v Benjamin Ward, as Commissioner of the Department of Correction of the City of New York, et al., Respondents.
    Argued December 15, 1983;
    decided January 17, 1984

      APPEARANCES OF COUNSEL

      Evan A. Davis and Neil P. Forrest for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Edward F.X. Hart and Leonard Koerner of counsel), for respondents.

      Dan Pochoda for New York City Board of Correction, amicus curiae.

   OPINION OF THE COURT

Memorandum.

In each case the order of the Appellate Division should be affirmed, without costs, but on grounds other than those relied on by that court.

Although the Board of Correction has authority to make recommendations and submit reports of its findings to the Commissioner of Correction, it has no authority to render an appellate decision binding on the commissioner with respect to his application, in individual cases, of the standards promulgated by the board. Authority to revoke the pass of Thomas McCreary granting access to the correctional facilities in the City of New York lay within the discretion of the commissioner in conformity with the standards promulgated by the board pursuant to subdivision e of section 626 of the New York City Charter, and the reinstatement of his pass cannot be classified as a purely ministerial act. Accordingly, there is no clear legal right to any such reinstatement, and the extraordinary remedy of mandamus to compel does not lie (Matter of Legal Aid Soc. v Scheinman, 53 NY2d 12; see Matter of Association of Surrogates & Supreme Ct. Reporters v Bartlett, 40 NY2d 571,574; Matter of Gimprich v Board of Educ., 306 NY 401, 406). It was error for the courts below to have considered the case on the merits.

In the case of Naomi Burns the commissioner has withdrawn his objections and reinstated her institutional pass.

In view of the dispositions we make, petitioners are not entitled to an award of attorney’s fees under section 1988 of title 42 of the United States Code.

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

Orders affirmed, without costs, in a memorandum.


text:
    In the Matter of George L. Layton et al., Respondents, v Roger Foster et al., Appellants.
    Argued January 11, 1984;
    decided January 17, 1984

      APPEARANCES OF COUNSEL

      Philip E. VanRiper for appellants.

      Bruno Colapietro for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division should be affirmed, with costs.

Section 72 of the Domestic Relations Law evidences a legislative intent to continue the familial relationship between grandparents of an adopted child and the child, provided that doing so is not contrary to the best interests of the child (Lo Presti v Lo Presti, 40 NY2d 522, 527). The Family Court Judge erred on the law, therefore, in suggesting that the natural father’s consent to adoption by the stepfather terminated the rights of the natural father’s parents.

The Appellate Division held that he had erred on the facts as well in finding it in the best interests of the child to cancel any visitation with the grandparents. The question being a factual one, our function when the Appellate Division and the Family Court reach different conclusions on the issue, is to determine where the weight of the evidence lies, taking into consideration the fact that the Family Court Judge had the better opportunity to assess credibility (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492) and bearing in mind that the particular issue involves “as a primary consideration the avoidance of hindering the adoptive relationship” (People ex rel. Sibley v Sheppard, 54 NY2d 320, 329).

There is here little dispute concerning the facts and nothing to suggest that visitation with petitioners will hinder the child’s adoptive relationship, the grandparents having made clear their willingness not to involve the natural father in their visitation, or interfere with the relationship between the child and his mother and adoptive father, or make known to the child his adoption until the mother and adoptive father are prepared to do so. Essentially, the problem arises out of the desire of the mother and adoptive father that the child not be faced with the fact that he has three sets of grandparents and thus possibly have brought home to him his adoptive status. That, however, is a problem inherent in the legislative policy itself and absent evidence of exacerbation of the problem by the grandparents, furnishes no basis for denial of visitation by them with the child (cf. Lo Presti v Lo Presti, supra).

The only other basis for terminating visitation suggested by the Family Court Judge was conflict between petitioners and respondents. In our view, however, the conclusion of the Appellate Division that contact of the child with his grandparents will not harm the child’s emotional or physical well-being more nearly conforms with the weight of the evidence.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of Bowes & Company, Inc. of New York, Respondent, v American Druggists’ Insurance Company, Appellant.
    Decided January 17, 1984

      APPEARANCES OF COUNSEL

      Seymour J. Ugelow for appellant.

      Kenneth A. Sagat for respondent.
   OPINION OF THE COURT

Memorandum.

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

Whether the 1976 agreement was a novation or simply a modification of the 1974 agreement turns on the intent of the parties which, in the absence of extrinsic evidence of intent, is a question of law for the court (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 288, 293). Comparison of the two agreements establishes that what was intended was modification rather than extinguishment of the 1974 contract.

Arbitration of a claim for rescission for fraud must be commenced within six years after the date of the contract (CPLR 213, subd 1; 35 Park Ave. Corp. v Campagna, 48 NY2d 813) or within two years after the fraud was or with reasonable diligence could have been discovered (CPLR 203, subd [f]). Here the demand was served on August 12, 1981, more than six years after the date of the June 18, 1974 contract and more than two years after respondent learned of the irregularities upon which it now bases its claim’ of fraud in the inducement. The Appellate Division was, therefore, correct in staying arbitration of the demand for rescission.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye concur; Judge Simons 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:
    The People of the State of New York, Respondent, v Didliffe Tindle, Appellant.
    Argued January 10, 1984;
    decided January 17, 1984

      APPEARANCES OF COUNSEL

      Joel A. Brenner and David W. McCarthy for appellant.

      Robert M. Morgenthau, District Attorney (.Marc J. Citrin and Bruce Allen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, by vacating the sentence, and the case remitted to Supreme Court, New York County, with instructions to re-sentence appellant before a different Judge.

Charged with attempted murder and several related offenses, appellant proceeded to trial before a jury, and after summations pleaded guilty to attempted murder and criminal possession of a weapon, in full satisfaction of the indictment. As part of the bargain, the People promised not to take any position at the time of sentencing, a promise which was placed on the record. When at sentencing before the same Trial Judge the prosecutor began to address the court, defense counsel objected. The court ruled him out of order and told him not to interrupt. The prosecutor then reminded the court of the People’s promise not to take any position as to appellant’s sentence, declared that the People were not taking any position, and proceeded to add the following:

“I just wanted to say, your Honor, the Court is well aware this is a very very serious case and that this defendant, after he committed the crimes for which he was indicted, took flight for a period of some 16 to 17 months, and in a further and continuing effort to avoid responsibility for his acts, he took the stand at his trial and committed perjury.

“I have nothing further to say, your Honor.”'

In Santobello v New York (404 US 257), the Supreme Court held that a prosecutor must adhere to a promise not to make a sentence recommendation where it is given as a condition to a guilty plea. Such a promise is breached not only by the recommendation of a specific sentence but also by the implicit conveyance of the People’s position as to the appropriate punishment. (See People v Di Tullio, 85 AD2d 783; Commonwealth v Alvarado, 442 Pa 516; Burroughs v State, 30 Md App 669.)

The prosecutor’s remarks at sentencing violated his promise. The People’s argument that the statements constituted a mere introduction is unpersuasive. His few remarks, characterizing the case as “very very serious” and noting appellant’s flight and perjury, were tantamount to a request for a substantial prison term, in derogation of the People’s promise. We need not consider whether the breach of promise had an actual impact on the length of the sentence imposed by the trial court, for such consideration is not relevant in fixing the appropriate remedy. (See Santobello v New York, 404 US 257, 262-263, supra.)

As a remedy, appellant requests the option of withdrawing his guilty plea. While such relief may be necessary in some circumstances to restore a defendant to his presentence position, it is not required here. Appellant can receive the benefit of his bargain through resentencing before a different Judge. (See People v Santobello, 39 AD2d 654.) Further, vacatur of appellant’s guilty plea more than six years after the crime would be unduly prejudicial to the People, who relied on the plea to their detriment by abandoning, after a trial of two weeks and closing argument, their efforts to obtain a jury verdict in favor of a plea of guilty to the top count in the indictment.

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

Order modified and case remitted to the Supreme Court, New York County, for resentence in accordance with the memorandum herein and, as so modified, order affirmed.

       For this reason, counsel’s failure to renew his objection after the prosecutor’s remarks is inconsequential. Defense counsel attempted to interpose an objection prior to the prosecutor’s remarks at sentencing, which was the point when the error could have been avoided.


text:
    In the Matter of the Application of God Kundalini Isa Allah, Also Known as William H. Harrison, Appellant, v Louis B. Scheinman, as County Judge, Sullivan County, et al., Respondents.
    Submitted December 19, 1983;
    decided January 17, 1984
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the decision denying the application for an order to show cause.


text:
    The People of the State of New York ex rel. John R. Blake, Also Known as Rich Blake, Appellant, v Walter Flood, Respondent.
    Submitted January 9, 1984;
    decided January 17, 1984
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not appear from the papers submitted that a substantial constitutional question is directly involved. Motion to prosecute the appeal as a poor person dismissed as academic.


text:
    M. W. Zack Metal Company, Appellant, v Supreme Court of the State of New York et al., Respondents.
    Submitted January 3, 1984;
    decided January 17, 1984
   Motion for vacatur of this court’s December 1,1983 order which dismissed appeal taken as of right or, in the alternative, for leave to appeal to this court denied in each respect, with one bill of $20 costs and necessary reproduction disbursements. [See 60 NY2d 1015.]


text:
    Michael Perry, Jr., Appellant, v Anthony Costa et al., Defendants, and Inter-County Savings Bank, Respondent.
    Submitted January 9, 1984;
    decided January 17, 1984
   Motion to dismiss the appeal herein denied. The request in appellant’s answering papers for a CPLR 5520 (subd [a]) extension of time within which to cure the failure to file a notice of appeal is deemed a cross motion for such relief and is granted. The notice of appeal shall be filed within seven days from service of a copy of this order on appellant.


text:
    Pogo Holding Corporation, Appellant-Respondent, v New York Property Insurance Underwriting Association, Respondent-Appellant.
    Decided January 17, 1984
   Cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that defendant cross-appellant is not a party aggrieved by the October 24, 1983 Appellate Division order appealed from (CPLR 5511), and upon the further ground that the December 3,1979 Appellate Division order, treated as one of modification, is not a proper predicate for an appeal pursuant to CPLR 5601 (subd [d]) because (1) the modification is not in a respect which is within the power of the Court of Appeals to review, and (2) defendant cross-appellant was not aggrieved by the modification (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


text:
    George Sassower, Petitioner, v John P. Finnerty, as Sheriff of Suffolk County, Respondent. (Action No. 1.) The People of the State of New York ex rel. George Sassower, Appellant, v Sheriff of Suffolk County, Respondent. (Action No. 2.) George Sassower, Appellant, v Ernest L. Signorelli et al., Respondents, et al., Defendants. (Action No. 3.)
    Decided January 17, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the portion of the Appellate Division order which remitted the proceeding in action No. 2 to Special Term for further proceedings does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance.


text:
    Lori Schoenhals et al., Appellants, v Kissing Bridge Corporation et al., Respondents.
    Submitted December 19, 1983;
    decided January 17, 1984
   Motion for leave to appeal dismissed for untimeliness, the prior motion for leave to appeal, made to the Appellate Division, not having been timely made (CPLR 5513, subd [b]; Cohen and Karger, Powers of the New York Court of Appeals, § 101, p 429; § 104, p 436).


text:
    Douglas R. Hutchins et al., Respondents, v Chana Gorlicki et al., Appellants.
    Decided January 17, 1984
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeals dismissed, without costs. The modification by the Appellate Division, termed by that court a reversal, is not in a respect which is within the power of the Court of Appeals to review, and, thus, the order of the Appellate Division is not a valid predicate for an appeal as of right pursuant to CPLR 5601 (subd [d]) (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


text:
    Stanley Yalkowsky, Respondent, v Deanne Yalkowsky, Appellant.
    Argued January 4, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Alan H. Weiss for appellant.

      Stanley Yalkowsky, respondent pro se.

   OPINION OF THE COURT

Memorandum.

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

The determination by the Appellate Division, that the weight of the conflicting evidence on defendant’s counterclaim to set aside her conveyance of the marital residence to her husband preponderated in favor of the plaintiff, comports with the record as well as with the negative response by the advisory jury to the question whether the deed had been executed under duress.

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

Order affirmed, with costs, in a memorandum.


text:
    Thomas R. Flynn, Respondent, v Manhattan and Bronx Surface Transit Operating Authority, Appellant.
    Argued January 4, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Steve S. Efron, John A. Murray and Richard K. Bernard for appellant.

      Leonard L. Finz and David Jaroslawicz for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant’s contention that the evidence failed to establish a prima facie case of liability must be rejected. It was not disputed that the bus and the bicycle on which plaintiff was riding collided. There was evidence from which the jury could have concluded that the bus hit the bicycle. There was also evidence from which the jury could have concluded, in the circumstances, that it was negligent on the part of defendant not to have equipped the bus with a right side mirror and that it was negligent on the part of the bus driver to have driven the bus as close to the curbing as he did.

Appellant also urges several asserted errors on the part of the trial court as grounds for reversal. None, however, warrants setting aside the verdict of the jury. Appellant correctly argues that it was error to have admitted the testimony of Sergeant Hansen, the investigating officer, that the driver of the bus (who was deceased at the time of the trial) told him at the scene “that an unidentified passenger had come up to him after he had passed the guy on the bike, and the unidentified passenger said that he had struck the person on the bike”. This was properly objected to as hearsay. Indeed, Sergeant Hansen’s testimony as to the statement of the unidentified passenger was double hearsay, not within any of the exceptions to the hearsay rule. We conclude, however, in view of the other evidence properly before the jury that the admission of this evidence was harmless and not of sufficient significance to warrant reversal.

That the bus and bicycle had come into contact was never disputed. The statement of the unidentified passenger was not evidence of any negligence on the part of the bus driver, the critical issue for jury determination. To the extent that the statement could have been taken as proof that the bus struck the bicycle, rather than the reverse, it was only cumulative of other evidence to the same effect that was properly received. There was the statement of Mrs. Vanderhorst, the passenger in the following automobile who immediately came on the scene, that plaintiff said “The bus, it hit me. I think I broke my arm”. It was not an abuse of discretion or otherwise erroneous as a matter of law for the trial court to have admitted this testimony, over a hearsay objection, as part of the res gestae. If this testimony were to be discounted, as coming from an interested party, there was also the receipt in evidence of the memo book of Sergeant Hansen which contained the entry “unidentified passenger reported he had hit the bike rider”. The only objection registered to the introduction of the memo book was that it was “not the best evidence. The witness is the best evidence.” This objection was properly rejected. The “best evidence” objection was inapplicable inasmuch as the memo book was not introduced to prove the contents of another original written document (see Richardson, Evidence [Prince, 10th ed], § 568, p 578). Any other ground for its exclusion was not preserved for our consideration.

As to the testimony of passenger Hart that an unidentified passenger yelled out, “Stop, you hit someone”, the trial court sustained defendant’s objection and granted its motion to strike the testimony. Defendant never later pursued the court’s statement that it would “explain it to the jury”.

As to the contemporaneous entry made on an index card by Mrs. Hart, the trial court initially directed redaction of the critical portion — “People on bus said ‘Stop, you hit the boy on the bike’”. After the redacted portion was later restored and properly admitted, over defendant’s objection, to refute the assertion of recent fabrication by the witness, the trial court instructed the jury that such portion was “not legal proof of the facts stated in it. If, however, you find that the statement is consistent with the testimony given by Mrs. Hart at the trial, you may consider that fact in determining whether you will accept all or part or none of the testimony she gave during the trial, and what weight you will give to the testimony. You may not consider that statement for any other purpose.”

Finally, appellant contends that the trial court erred in its charge to the jury with respect to the applicable requirements of the Vehicle and Traffic Law regarding the necessity for a right-hand side mirror. The court charged in the exact language of section 375 (subd 10, par a), that the statute stated, “Every motor vehicle, when driven or operated upon a public highway, shall be equipped with a mirror or other reflecting device, so adjusted that the operator of such vehicle shall have a clear and full view of the road and condition of traffic behind such vehicle”. This provision neither required a right-hand side mirror nor relieved defendant of the obligation to provide one; it left determination as to compliance with the statutory prescription in the circumstances to the jury. Defendant did not protest the charge of paragraph a as given, but requested a further charge that because paragraph b had been added to subdivision 10 in 1970 requiring that an omnibus manufactured or assembled after July 1, 1970 be equipped with a mirror attached to the right side of the omnibus, no such mirror was statutorily required on omnibuses manufactured prior to that date (which would have included the omnibus involved in the present case). The trial court properly refused this request. It does not follow that, because an explicit requirement for a right side mirror was imposed in all circumstances with respect to post-1970 omnibuses, the jury could not find that such a mirror had previously been required under the more general language of paragraph a in some circumstances. No contention was advanced that the evidence in this case wasv insufficient to warrant a charge with respect to paragraph a.

We have examined appellant’s other contentions and find none sufficient to warrant reversal of the jury verdict.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Earl Pickett, Respondent.
    Argued January 9, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney CMichael H. Warren and Norman Barclay of counsel), for appellant.

      Benjamin Heinrich for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

While the jury was being polled one juror, when asked whether the verdicts were hers, responded, “Yes, under duress, I’m saying yes”. The Trial Judge then asked her, “Are they your verdicts, yes or no?”, to which the juror replied, “Yes.” Defense counsel thereupon requested the court to hold a hearing to make a determination as to what the stated duress consisted of. We agree with the Appellate Division that the denial of this request was error.

In light of the juror’s reference to “duress”, the trial court should have addressed the juror out of the presence of the other jurors, instructing her that communications among the jurors that were a part of their deliberative process in attempting to reach a verdict on the issues they were charged to decide (including their efforts by permissible arguments on the merits to persuade each other) were secret and not to be disclosed to him. The Judge should then have inquired of her whether, within the limitation just described, she could relate to him the circumstances to which she had referred as “duress”. If she could not tell him what she meant by duress without violating the secrecy of the jury deliberations, she should tell him nothing. The court would then have had no occasion for further action other than to accept the verdict of the juror. On the other hand, if she could tell him what she meant by duress without violation of jury secrecy, the court should have asked her to explain the circumstances, remaining alert, however, to interrupt and preclude any disclosure of aspects of the deliberative process. If it then appeared that the duress arose out of matters extraneous to the jury’s deliberations or not properly within their scope, although perhaps occurring within the jury room, the Trial Judge would have been called on to determine what remedial action, if any, would have been suitable, ranging from directing the jury to continue their deliberations, through taking reasonable steps to remove or dissipate the cause of the duress, to replacing the juror with the consent of the defendant (CPL 270.35) or possibly declaring a mistrial (CPL 280.10). The appropriate action to be taken would necessarily have depended on the factual elements of the particular situation and the practicality and probable effectiveness in the circumstances of any particular procedure to eradicate the effect of the duress.

In this instance no inquiry was undertaken. Instead, the juror was given only the categorical alternative of “yes or no”, with no opportunity even to volunteer any comment or exposition of the predicament in which she found herself.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Robert Anthony Farruggia, Sr., Appellant. The People of the State of New York, Respondent, v Anthony Caccia, Appellant.
    Argued January 4, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Diana M. Irizarry for Robert Anthony Farruggia, Sr., appellant.

      Charles A. Schiano for Anthony Caccia, appellant.

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

Memorandum.

The orders of the Appellate Division should be affirmed.

Taping conversations between a defendant not in custody and an accomplice-informant involves no violation of defendant’s right to counsel even though the police are aware that defendant has counsel on a prior unrelated charge (People v Hauswirth, 60 NY2d 904; see People v Ferrara, 54 NY2d 498). In view of the statements of each defendant during the taped conversations there is, moreover, no question that there was before the jury sufficient evidence “tending to connect the defendant with the commission of such offense” (CPL 60.22; People v Burgin, 40 NY2d 953, 954) and to satisfy the jury that the accomplice was telling the truth. Nor was there any violation of either defendant’s rights under CPL 60.50, the Trial Judge having instructed the jury that they could not convict on the taped admission alone and that there must be other proof of commission of a crime before they could find defendants guilty.

Defendants’ other contentions have been considered and found to be without merit.

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

In each case: Order affirmed in a memorandum.


text:
    W. P., Appellant, v R. P., Respondent.
    Argued January 6, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Mark B. Brenner for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to provide that the first decretal paragraph of the Special Term order of May 20, 1982, which directs plaintiff to submit to an examination by a court-appointed psychiatrist, is stricken without prejudice to renewal by application to the Trial Judge should the legitimacy of plaintiff’s expenditures for psychiatric care become an issue during trial and, as so modified, is affirmed, without costs. The question certified is answered in the negative.

Notwithstanding that plaintiff husband expends approximately one half of his $120,000 annual income on psychiatric treatment for himself, it was error to grant defendant wife’s motion for examination of him by an independent psychiatrist. The husband alleges and the wife does not deny that his treatment and the expenditure therefor antedated the marriage and continued throughout the period the parties were living together.

The husband has made no claim that his mental condition prevents him from earning enough to pay such alimony and support for defendant and the daughter of the marriage as may be found appropriate upon trial of the action for divorce. Nor has defendant wife presented anything more to indicate that plaintiff’s mental condition may become an issue than the fact that plaintiff’s attorney has not responded to the offer by defendant’s counsel to withdraw the request if plaintiff would “concede his ability to pay and not use the extraordinary payment to his psychiatrist as a defense.” No adequate basis for granting the order in question having been presented by defendant and plaintiff’s mental condition not being necessarily in issue under the circumstances of this case, it was error to have directed such an examination. It will be time enough to do so during trial should the facts as then developed establish to the satisfaction of the Trial Judge that plaintiff’s mental condition is in fact in controversy.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed, without costs. Question certified answered in the negative.


text:
    Tri City Roofers, Inc., Appellant, v Northeastern Industrial Park, Respondent.
    Argued January 3, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Lawrence T. Dahlke and Frank N. Grasso for appellant.

      William M. O’Hare for respondent.
   OPINION OF THE COURT

Memorandum.

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

The issue in this case is whether respondent, Northeastern Industrial Park, a judgment debtor of appellant, Tri City Roofers, Inc., should, pursuant to CPLR 5209, be discharged from its obligation under that judgment to the extent that it paid funds to the Sheriff pursuant to an execution issued by Rotterdam Ventures, Inc., a judgment creditor of appellant. At the time the execution was served upon respondent, appellant had already assigned its judgment to a third party. Although that assignment had been recorded with the county clerk in accordance with CPLR 5019 (subd [c]), neither appellant nor its assignee gave respondent actual notice of the assignment. Appellant contends that respondent is not entitled to protection under CPLR 5209 because its assignee has rights superior to Rotterdam under CPLR 5202 (subd [a], par 1), and that actual notice to respondent is not required in view of the filing requirements of CPLR 5019 (subd [c]). Special Term granted respondent’s motion to discharge its obligation to appellant to the extent it paid Rotterdam, and the Appellate Division unanimously affirmed.

A debtor, in order to be charged with a duty to pay a debt to an assignee, must first have actual notice of the assignment.

The facts of this case illustrate the confusion and injustice that would flow from a contrary result. In this action, two judgments were rendered after a joint trial of two separate actions. One action was a suit by appellant against respondent for money damages for repairs made to respondent’s property. In that action, a judgment in the sum of $10,341 was entered against respondent on February 23, 1982. That same day appellant assigned its judgment to its attorney for full value. The next day that assignment was recorded in the Schenectady County Clerk’s office. The second action was a suit by Rotterdam against appellant for rent due and owing. In that action, a judgment in the sum of $8,141.55, was entered against appellant on February 24, 1982. The next day, February 25,1982, Rotterdam delivered to the Albany County Sheriff an execution to be served upon respondent as appellant’s judgment debtor. The Sheriff levied upon that debt and on March 4, 1982 issued a check to Rotterdam’s attorneys pursuant to Rotterdam’s execution. On March 9, 1982, appellant’s attorney delivered an execution on appellant’s judgment against respondent to the Albany County Sheriff, which was subsequently served upon respondent. Respondent at that time brought a motion to discharge its obligation on appellant’s judgment to the extent that it had paid Rotterdam, and to vacate appellant’s execution. It is undisputed that respondent at the time it made payment to the Sheriff had no knowledge of the assignment.

Respondent, having received no notice of the assignment prior to payment, cannot be charged with a duty to pay the debt to appellant’s assignee. (Poughkeepsie Sav. Bank v Sloane Mfg. Co., 84 AD2d 212, 216; Continental Purchasing Co. v Van Raalte Co., 251 App Div 151, 152.) CPLR 5019 (subd [c]) does not alter this rule. The intent of that provision is merely to establish the assignee’s authority to enforce the judgment. (5 Weinstein-Korn-Miller, NY Civ Prac, par 5019.11.) A judgment debtor is not called upon to search the county’s records every time he is served with an execution or desires to make a payment on his debt. (See Boyd v Buffalo Steam Roller Co., 87 Misc 20, affd 167 App Div 959.) Under CPLR 5209, respondent was properly discharged from its obligation to appellant, to the extent that it had made payment to the Sheriff pursuant to Rotterdam’s execution.

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

Order affirmed, with costs, in a memorandum.

       Having assigned its judgment with recourse, it is only the possibility of recourse by its assignee that gives appellant the required status as a party aggrieved by the judgment below to be entitled to appeal. (CPLR 5511; cf. Matter of Luckenbach, 303 NY 491, 495-496.)


text:
    In the Matter of Alfred W. Roberts et al., as Trustees under a Trust Created by Louise D. Hynds, as Grantor, Respondents. New York City Health and Hospitals Corporation, Appellant.
    Argued January 5, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis and Michael Gage of counsel), for appellant.

      Leonard J. Adler, Harvey Folks Zimand and Gail E. Miers for respondents.
   OPINION OF THE COURT

Memorandum.

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

In 1957, the grantor created a trust providing in part that the income be applied, as the trustees saw fit, for the support and maintenance of her daughter, and permitting the trustees “in their absolute discretion” to apply all or part of the corpus for the daughter’s support and maintenance.. After the grantor’s death, the daughter was hospitalized at Kings County Hospital for a considerable period at public expense. Appellant obtained a judgment against the daughter of $111,000 for the unpaid charges and seeks to satisfy this judgment from the trust principal, now valued at approximately $45,000.

Special Term declined to order the trustees to expend the trust funds in partial satisfaction of appellant’s judgment. It found, both from the terms of the trust indenture and from the surrounding circumstances, that the grantor did not intend to exhaust the trust principal to provide for her daughter’s hospitalization; knowing of her daughter’s disability, the grantor nonetheless made no amendment of the pertinent trust provisions, which gave the trustees discretion to determine what funds would be used for her welfare and provided for remaindermen. (See Matter of Escher, 52 NY2d 1006; Restatement, Trusts 2d, § 187.) The Appellate Division unanimously affirmed, and the affirmed findings have support in the record. The trustees did not abuse their discretion as a matter of law by refusing to pay over the trust corpus to appellant.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Richard I, Inc., Doing Business as Richard I School of Beauty Culture, et al., Appellants, v Gordon Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued January 9, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Thomas F. Gleason, Peter L. Danziger and Barbara G. Billet for appellants.

      Frederick W. Burgess, Robert D. Stone and Donald O. Meserve for respondents.
   OPINION of the court

Order affirmed, with costs, for reasons stated in the opinion by Justice Michael E. Sweeney at the Appellate Division (90 AD2d 127).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye. Taking no part: Judge Simons.


text:
    In the Matter of Barney’s, Inc., Appellant, v Department of Finance of the City of New York, Respondent.
    Argued January 5, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Franklin S. Bonem and John W. Ritchie for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Jerome Weinstock, Gale Zareko and Stanley Buchsbaum of counsel), for respondent.

      Selig J. Levitan and Ira J. Kaltman for Celebrity, Inc., amicus curiae.

      Maurice Mound and Hortense F. Mound for Commodity Clearing Corporation, amicus curiae.

   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the opinion by Justice Sidney H. Asch at the Appellate Division (93 AD2d 642).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer. Taking no part: Judges Simons and Kaye.


text:
    In the Matter of Robert Nolan, Jr., Appellant, v Stephen F. Lungen, as District Attorney of Sullivan County, et al., Respondents.
    Argued February 6, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      David Cohen for appellant.

      Stephen F. Lungen, District Attorney (Frank J. Labuda of counsel), respondents pro se.

   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, without costs.

This article 78 proceeding in the nature of prohibition was commenced in the Appellate Division, even though only the District Attorney of Sullivan County and the Chief Assistant District Attorney were named as respondents. We agree with the concurring opinion of Justice Paul J. Yesawich that the Appellate Division had no original jurisdiction to entertain the proceeding. CPLR 7804 (subd [b]) provides that: “A proceeding under this article shall be brought in the supreme court, special term, in the county specified in subdivision (b) of section 506 except as that subdivision otherwise provides”. CPLR 506 (subd [b]) is the venue provision for special proceedings and provides that an article 78 proceeding shall be commenced in any county within the judicial district where the challenged determinátion was made, where proceedings in the matter or material events took place or where the principal office of respondent is located, except that “a proceeding against a justice of the supreme court or a judge of a county court or the court of general sessions shall be commenced in the appellate division in the judicial department where the action * * * is triable” (CPLR 506, subd [b], par 1).

CPLR 7804 (subd [b]) concerns the subject matter jurisdiction of the lower courts in article 78 proceedings. Considered with the provision it refers to (CPLR 506, subd [b]), the statute clearly requires that such a proceeding be commenced in Supreme Court, unless certain Judges are named respondents, in which case it must be commenced in the Appellate Division. Although as a venue provision, CPLR 506 (subd [b]) is waivable, to the extent that it also sets jurisdictional limitations, by virtue of the reference to it in CPLR 7804 (subd [b]), the provisions cannot be waived. The question whether a proceeding must be commenced in Supreme Court or the Appellate Division (as opposed to which county or department) clearly concerns subject matter jurisdiction. Thus, the present case, which named no Judge as respondent, was improperly commenced in the Appellate Division.

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

Judgment affirmed, without costs, in a memorandum.

       Contrast the express grant of jurisdiction found in CPLR 7804 (subd [g]).


text:
    The People of the State of New York, Respondent, v Frank Ready, Appellant.
    Argued January 6, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Andrew Fine, Megan Tallmer and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney {John Latella and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memoranda.

The order of the Appellate Division should be reversed, defendant’s motion to suppress should be granted, subject, however, to the People’s right, if so advised, to seek a renewed hearing as to suppression of the looseleaf notebook and whatever it contained when handed over to the police, and a new trial ordered.

It is undisputed that at the time Detective McLeese spoke to defendant on the telephone defendant was in the custody of South Carolina police officers pursuant to an arrest warrant teletyped to them which had been issued in New York on the basis of an accusatory instrument filed in New York, and that defendant then had, and in the course of conversation told the detective that he had, South Carolina counsel. Clearly, therefore, any statements made or evidence obtained through search conducted as a result of revelations by defendant made after he informed the detective that he had an attorney must be suppressed (People v Samuels, 49 NY2d 218; People v Johnson, 48 NY2d 565; see People v Lucas, 53 NY2d 678), even though violation of defendant’s right to counsel was not raised at the suppression hearing (People v Sanders, 56 NY2d 51, 66).

The People nevertheless oppose suppression on the grounds that (1) defendant’s request that he be driven back to New York in his car authorized them to search it to insure their own safety, (2) the car was properly seized as evidence of the crime and an inventory search was, therefore, inevitable, and (3) the search was justified under the automobile exception.

The first ground turns on the suggestion that there was a spontaneous request by defendant that the police drive back to New York in the car with him. As the People conceded on oral argument, however, no finding of spontaneity was made by the hearing Judge and the transcript shows that the subject was first broached by the detective’s question: “Or do you want to have your car transported back up to New York?” Conceivably the idea came into the conversation because of something said by defendant to the South Carolina police of which they informed Detective McLeese, but even if that be the case it would provide no basis for finding defendant’s statement in answer to McLeese’s inquiry, made after McLeese was informed that defendant had an attorney, to be spontaneous (People v Rivers, 56 NY2d 476; People v Lanahan, 55 NY2d 711; People v Stoesser, 53 NY2d 648; People v Lucas, supra). Having been given the South Carolina attorney’s name and telephone numbers, McLeese’s proper course was to take the return of the car up with him. The discussion with defendant about returning the car therefore furnishes no predicate for search of the car.

The People’s second contention provides no greater basis for search of the car. The crime of which defendant was accused was grand larceny by the kiting of checks. The fact that part of the money thus criminally obtained was used to purchase the car did not under the circumstances of this case provide the nexus between it and the larceny required to sustain seizure of the car (Warden v Hayden, 387 US 294, 307). It was at most evidence of motive, irrelevant to conviction of a criminal act for which there was other clear proof (cf. People v Namer, 309 NY 458, 462). Moreover, the People’s reliance on section 435-4.0 of the Administrative Code of the City of New York is misplaced for that section deals only with custody and disposition of property once seized, not with the right of the police to seize property in the first place. That the car may have been visible from the street “at the front of the repair garage, unguarded and near the exit,” as the People’s brief recounts, gave the police no basis for seizure of it without a warrant requiring the establishment of probable cause for so doing.

Nor did the possibility that evidence relating to the larceny might be found in the car afford a ground for its seizure under the automobile exception. In the first place, there was nothing other than defendant’s suppressible statement to McLeese to that effect to suggest that such was the fact. There was, therefore, no probable cause for its seizure. It was, moreover, in a private garage in possession of the garageman as bailee of defendant, rather than in a public place (cf. People v Orlando, 56 NY2d 441), and there was ample time between the arrival of the New York detectives in South Carolina and the time the car was to be ready to be moved for a warrant to be obtained. That defendant’s wife was on her way to South Carolina with money to pay for the repairs created no exigency, therefore, that could not have been met by the posting of a police guard while application for a warrant was made. Moreover, there was no admissible evidence of exigency as the police learned of the wife’s imminent arrival only when the defendant told them in the conversation held in violation of his right to counsel.

All of the evidence obtained through search of the car must, therefore, be suppressed. The situation differs, however, with respect to the looseleaf book. That was not in the car but in the possession of defendant’s South Carolina attorney. It was turned over to defendant by the attorney in the presence of and with the permission of the New York detectives and given by defendant to the detectives with the statement that he had nothing to hide. Because no right to counsel basis for suppression was urged before the hearing Judge, the record is unclear concerning the role played by the attorney in defendant’s turnover of the book and no finding was made as to what papers it contained at that time. The People are, therefore, entitled to a renewed hearing as to suppression of it and its contents if they be so advised (cf. People v Havelka, 45 NY2d 636; People v Lypka, 36 NY2d 210; People v Horowitz, 21 NY2d 55).

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

Order reversed, defendant’s motion to suppress granted subject to the People’s right to seek a renewed hearing in accordance with the memorandum herein, and a new trial ordered.


text:
    The People of the State of New York, Respondent, v Tyrone Huffman, Appellant.
    Argued January 3, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Ronald Minkoff, Matthew Muraskin and Michael J. Obus for appellant.

      Denis Dillon, District Attorney (Denise Parillo and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, a suspect in the investigation of a burglary and the sexual assault of a woman, permitted the police to take his photograph and agreed to accompany two officers to the complainant’s home. Defendant had told the police that he had no knowledge of the crime. Upon arrival, one officer entered complainant’s home while the other waited with defendant in the squad car.

The complainant was shown a photo array that included the picture of defendant. Defendant’s picture was identified as that of the man who had committed the crime. The officer returned to the car and said to defendant: “You’re a liar.” Defendant, who had not been advised of his Miranda rights, responded: “You’re right. I did it.” There was no further communication between defendant and the officers. Defendant was then taken to the local precinct station where, after being given Miranda warnings, he waived his rights and made a full confession.

Prior to trial, defendant moved to suppress both the statement made in the squad car and the later confession. The suppression court denied the motion and the statements were admitted into evidence at trial. Defendant was convicted of burglary, robbery, and sodomy, all in the first degree. The Appellate Division affirmed.

On this appeal, defendant argues that it was error to admit the subject statements. He contends that the statement made while in the car was the product of custodial interrogation undertaken in the absence of Miranda warnings. There being no “definite, pronounced break” between the time of the communications in the car and the confession resulting from interrogation at the precinct house, the latter statements, in defendant’s view, should also have been suppressed, notwithstanding that defendant had been advised of and had waived his Miranda rights (see People v Chapple, 38 NY2d 112, 115).

The admissibility of the statement defendant made in the squad car turns on whether it was “the product of ‘express questioning or its functional equivalent’ ” (People v Bryant, 59 NY2d 786, 788, quoting Rhode Island v Innis, 446 US 291, 300-301). As the suppression court found, the police officer’s statement, “You’re a liar”, did not constitute express questioning but was declarative in nature. Therefore, the question narrows to whether the officer should have known that his statement was “reasonably likely to evoke an incriminating response from the suspect” (Rhode Island v Innis, supra, at p 301).

The suppression court’s determination that “[n]o response was called for [under] the circumstances” supports its conclusion that there was no violation of defendant’s right against self incrimination. Its findings were affirmed by the Appellate Division and, as it cannot be said that the characterization was erroneous as a matter of law, the statement was properly admitted at trial. Defendant’s later confession made after Miranda warnings had been given was, therefore, also properly admitted.

Defendant’s other arguments have been considered and found to be without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Clinton A. Salmon, Individually and as Supervisor of the Town of Sardinia, Appellant, v Robert F. Flacke, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents. (And Another Proceeding.)
    Argued January 5, 1984;
    decided February 14, 1984

      APPEARANCES OF COUNSEL

      Richard J. Lippes for appellant.

      Richard N. Blewett for Richard Penfold, respondent.
   OPINION OF THE COURT

Orders affirmed, without costs, for reasons stated in the memoranda at the Appellate Division (91 AD2d 867, 868). We would only add that, in other circumstances, there might be proof of change in the level of operation so substantial as to be sufficient to remove an activity from the exclusion clause of ECL 8-0111 (subd 5, par [a]), notwithstanding that the basic nature of the activity remains unchanged.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye. Taking no part: Judge Simons.


text:
    Edith Edwards, Appellant, v Robert Nemenyi et al., Respondents.
    Argued January 10, 1984;
    Decided February 16, 1984

      APPEARANCES OF COUNSEL

      Alexander J. Wulwick and Ignatius John Melito for appellant.

      MarkB. Wiesen and Richard A. Gurfein for respondents.
   opinion of the court

Memorandum.

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

Not only was there no proof identifying the defect in the stool, from which plaintiff fell, and establishing that such defect was the proximate cause of the fall, but there was no showing of “facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” (Ingersoll v Liberty Bank, 278 NY 1,7; see Agnelli v Tonegatti, 20 AD2d 887).

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

Order affirmed, with costs, in a memorandum.