text:
    [636 NE2d 1380, 613 NYS2d 847]
    In the Matter of Gladys A. Endreson, Appellant, v New York City Employees’ Retirement System, Respondent.
    Argued February 8, 1994;
    decided March 17, 1994

      APPEARANCES OF COUNSEL

      Arthur H. Groe, Hastings-on-Hudson, and Stuart Salles, New York City, for appellant.

      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth Dvorkin, Francis F. Caputo and James J. Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the petition reinstated, and the matter remitted to Supreme Court for further proceedings in accordance with this memorandum.

William Endreson began working as a bridge and tunnel officer with the Triborough Bridge and Tunnel Authority on July 17, 1974. Authority employees hired between July 1, 1973 and June 30, 1976 became Tier II employees governed by article 11 of the Retirement and Social Security Law, and Endreson entered the New York City Employees’ Retirement System on August 13, 1974. On July 26, 1975, Endreson elected to receive a death benefit pursuant to Retirement and Social Security Law § 448 (a) (1), which allowed for payment of one month’s salary for every year of service, up to 36 years.

Endreson developed lung cancer and died on December 19, 1989. He last reported for work on September 26, 1988, when he was granted a medical leave of absence, receiving short-term disability payments until February 23, 1989, and long-term disability payments from late February until his death 10 months later. During the period of short-term disability, Endreson received payment for "check-in/check-out” time, in accordance with the collective bargaining agreement, which also mandated that the payment be included as "earnings” for the purpose of pension computations.

The claim of appellant, Endreson’s widow, for his death benefit was denied by an administrator of the New York City Employees’ Retirement System (NYCERS), on the grounds that Retirement and Social Security Law § 448 (e) (1) bars recovery of a death benefit to survivors of employees who die while "off the payroll” and were not "on the payroll in such service and paid within a period of twelve months prior to his death.” The president of the Triborough Bridge and Tunnel Authority unsuccessfully sought to intervene on appellant’s behalf, asserting that at the time of his death, the Authority had considered Endreson to be "on the payroll” but on medical leave of absence, receiving full medical and union welfare fund benefits.

Appellant filed a CPLR article 78 proceeding, and Supreme Court ordered payment of the death benefit, finding that the "check-in/check-out” pay brought Endreson within the exception to Retirement and Social Security Law § 448 (e). The Appellate Division reversed, however, concluding that section 448 (e) referred only to payment for regular wages within the preceding 12 months, and that check-in/check-out pay did not constitute regular wages.

While the parties’ contentions focus on whether "check-in/ check-out” pay constitutes being "paid on the payroll,” a fundamental question of potentially broad significance was unresolved below. The Comptroller’s regulation (2 NYCRR 309.7 [a]) expressly provides for payment of death benefits for members who die while on authorized medical leave of absence, which would resolve the issue in appellant’s favor. Respondent NYCERS asserts, without authority, that it is not bound by a regulation of the New York State Comptroller and has an independent obligation to interpret the statute at issue.

Notably, neither Supreme Court nor the Appellate Division considered the effect of 2 NYCRR 309.7 on appellant’s claim. Of concern as well is the apparent failure to request intervention of the Comptroller pursuant to CPLR 1012 (c). The Legislature added this provision in 1972 to prevent courts from ruling on broad-scale pension issues "without the benefit of complete information which only the Comptroller can supply” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1012:6, at 153). The Comptroller may decline to intervene, but under the statute must be given opportunity to weigh in on questions concerning rules or law governing public pension and retirement benefits.

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

Order reversed, etc.

      . According to Administrative Code of the City of New York § 13-101 (3) (b), employees of the Triborough Bridge and Tunnel Authority are considered to be in "city-service” for purposes of membership in NYCERS.

      . CPLR 1012 (c) imposes an affirmative duty upon the court to notify the State Comptroller whenever a question arises concerning interpretation of any rules or law governing a public retirement system or benefits "to be paid by a state retirement system or any other retirement system established for public employees within this state or any subdivision thereof” (emphasis added).


source: Caselaw Access Project

license: Public Domain

text:
    [636 NE2d 1382, 613 NYS2d 849]
    Miriam D’Alessandro, Appellant, v New York City Transit Authority, Respondent.
    Argued March 16, 1994;
    decided May 10, 1994

      APPEARANCES OF COUNSEL

      Di Joseph, Portegello & Schuster, New York City (Arnold Di Joseph, III, of counsel), for appellant.

      Armienti, Brooks, DeBellis & Dunphy, New York City (Edward P. Dunphy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.

On January 13, 1988, plaintiff was waiting for the B1 bus in Brooklyn. Due to the accumulation of snow and ice at the sidewalk bus stop, plaintiff was forced to wait on the street. Allegedly, an approaching bus pulled up too close to her, causing her to fall as she attempted to jump back toward the sidewalk to avoid being hit by the bus. Plaintiff sustained a fractured and dislocated elbow and other injuries as the result of her fall and sought damages against defendant in negligence.

Plaintiffs notice of claim, filed on February 3, 1988, did not identify the bus or bus driver allegedly involved or the nature of the accident. On February 24, 1988, plaintiff testified at a hearing held pursuant to General Municipal Law § 50-h. A summons and complaint was subsequently served upon defendant on June 3, 1988.

On January 10, 1991, after jury selection, defendant moved to dismiss the complaint because of plaintiffs failure to serve an adequate notice of claim, contending that it had been prejudiced in investigating the claim because the notice of claim failed to specify the bus or bus driver involved in the accident or the nature of the accident. Plaintiff contended that if the notice was insufficient it should be considered with the hearing testimony. Supreme Court, analyzing only the notice of claim, granted defendant’s motion to dismiss the complaint, stating: "[T]he notice of claim stands by itself, does it not, alone. Not with the hearing. Not with anything else. The notice of claim that you must file under the law must be sufficient within the four corners of that document.” The Appellate Division affirmed.

In determining whether to grant the motion to dismiss the complaint, the courts below erroneously concluded that their inquiry was strictly limited to the "four corners” of the notice of claim (see, Schwartz v City of New York, 250 NY 332, 335 ["Circumstances must determine in each case whether the notice served is sufficient”]). In passing on the sufficiency of a notice of claim in the context of a motion to dismiss, courts are not confined to the notice of claim itself. The relevant inquiry is set forth in General Municipal Law § 50-e (6), which provides that "a mistake, omission, irregularity or defect made in good faith * * * may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.” In making this determination of prejudice, the court may look to evidence adduced at a section 50-h hearing, and to such other evidence as is properly before the court.

Without expressing any view regarding the validity of the trial court’s exercise of discretion in this case, we reverse and remit the matter to Supreme Court so that it may exercise its discretionary authority in accordance with this memorandum.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


author: Simons, J.

text:
    [636 NE2d 1383, 613 NYS2d 850]
    Benjamin Shepardson, an Infant, by Chris Shepardson, His Parent and Natural Guardian, Respondent, v Town of Schodack, Appellant, et al., Defendant.
    Argued March 24, 1994;
    decided May 12, 1994
    APPEARANCES OF COUNSEL

      Carter, Conboy, Bardwell, Case, Blackmore & Napierski, Albany (Susan DiBella Harvey and Kevin G. Grimes of counsel), for appellant.

      Linnan, Bacon & Meyer, Albany (James D. Linnan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The infant plaintiff, injured on July 13, 1988 by an oncoming car while riding his bicycle on Palmer Road in the Town of Schodack, brought suit against the Town, claiming negligent failure to maintain the roadside vegetation which had allegedly obscured the driver’s view of plaintiff. The Town pleaded as an affirmative defense that plaintiff had failed to comply with Town Law § 65-a, which requires as a condition precedent to suit that the Town had written or constructive notice of the allegedly dangerous condition prior to the accident. Plaintiff demonstrated at trial that the Town had constructive notice of the dangerous condition on Palmer Road as a result of two recent inspections.

After both parties had rested, counsel for the Town — himself having just discovered Schodack Town Code § 154-1 — requested that the trial court take judicial notice of that local law, which requires, in actions against the Town, that written notice of the dangerous condition be received prior to the accident. The court reserved decision on defendant’s motion to dismiss the complaint for failure to comply with the local law (see, CPLR 4401) and charged the jury that the Town would be liable if it had either actual or constructive notice of the defective condition. The jury returned a verdict for plaintiff, which the court set aside in granting defendant’s motion to dismiss on the ground that plaintiff had not satisfied the written notice requirement of the local law. The Appellate Division reversed and reinstated the verdict, holding that the Town should not be permitted to rely on the local law.

In the limited circumstances presented, we agree with the Appellate Division that plaintiff’s verdict should be reinstated. While the Town insists that it was not required to assert the local law notice requirement, a quite different scenario unfolded here precisely because of the action the Town did take. In its answer the Town pleaded Town Law § 65-a as an affirmative defense, and it stood by silently for more than two years as plaintiff successfully countered the defense by establishing constructive notice before the jury. We find persuasive plaintiff’s argument that the Town’s failure to assert its own local law in the circumstances presented deprived plaintiff of the opportunity to demonstrate that the Town had received written notice of the condition or to challenge the procedural regularity of the local law.

Simons, J.

(dissenting). At the time of this accident, the Town of Schodack, as permitted by section 65-a of the Town Law, had enacted legislation providing that no action could be maintained against the Town for personal injuries or damages sustained as the result of an unsafe or defective highway unless the Town had received written notice of the defect prior to the accident (see, Schodack Town Code § 154-1). Under settled law, such notice was a condition precedent to a successful action: Plaintiff was necessarily required to discover the notice requirement before commencing the action and then plead and prove compliance (see, Fullerton v City of Schenectady, 285 App Div 545, affd 309 NY 701). The Town, on the other hand, had no burden on the issue, and any reference to notice in its answer was gratuitous (see, Cipriano v City of New York, 96 AD2d 817).

Plaintiff concededly failed to discover the local law before instituting this action, and failed to plead and prove that the Town had prior written notice. Nonetheless, the majority has sustained a judgment entered in plaintiff’s favor. It contends that the "Town’s failure to assert its own local law in the circumstances presented deprived plaintiff of the opportunity to demonstrate that the Town had received written notice of the condition or to challenge the procedural regularity of the local law.” (Majority mem, at 895-896.) It cites not a single legal authority to support its premise that the Town’s conduct here provides a basis for sustaining plaintiff’s judgment. There are a number of reasons why it does not.

First, plaintiff’s duty to research the applicable notice law and to ascertain that proper notice had been given to the Town should have been met by plaintiff before the commence-merit of legal action. Thus, any "failure” by the Town to assert its local law in its answer, after legal action had commenced, had no bearing on what plaintiff did or failed to do to prepare his case. The Town certainly did not "deprive” plaintiff of the opportunity to do the necessary legal research. Nor can it be seriously suggested that the Town "induced” plaintiff to forgo his legal research. The research in question should have been completed before litigation was commenced, not after the Town had answered the complaint.

Second, the majority’s rationale is based on the erroneous idea that the Town failed in a duty to assert its own local law. But the Town had no obligation to plead the notice requirement in its pleadings or to shoulder the burden of proving a lack of legally required notice (see, Cipriano v City of New York, 96 AD2d, at 817, 818, supra). Manifestly, the Town’s legal counsel had no duty to research the law for plaintiff or assist him in proving the case against his client, and plaintiff could not justifiably rely on the Town to do so.

Nor is it relevant that defendant moved to dismiss at the end of the case after asking the trial court to take judicial notice of the applicable local law. The motion was manifestly timely and appropriate (cf., Fahey v County of Ontario, 44 NY2d 934).

In the final analysis, this appeal raises nothing more than a simple question of judicial notice: Can a court take judicial notice of a local law after the parties have completed their evidence, as the Town requested the court to do here? Under CPLR 4511 (a), "Every court shall take judicial notice without request * * * of all local laws and county acts” (see also, Municipal Home Rule Law § 52). Judicial notice may be taken at any point in the litigation. Indeed, we have held that judicial notice of a law may be taken not only after the close of the evidence, as was done here, but even after judgment, during appellate review, and we did so notwithstanding the fact that the losing party never had notice at trial that the statute was to be invoked to defeat the claim (see, Sega v State of New York, 60 NY2d 183, 190, n 2, 192). The majority today denies to this trial court the power that it and "every court” is required to exercise as a matter of statutory law.

In sum, plaintiff had the responsibility to prepare and prove his cause of action and he failed to do so because his investigation of the Town’s local laws was either incomplete or inadequate. While that failure may be understandable, plaintiff cannot rely on the Town’s conduct to excuse it. Nonetheless, the majority has sustained his judgment without offering any legally cognizable reason for ignoring his failure to prove his case.

Accordingly, I dissent and vote to dismiss the complaint.

Chief Judge Kaye and Judges Titone, Bellacosa and Ciparick concur; Judge Simons dissents and votes to reverse in an opinion in which Judge Smith concurs; Judge Levine taking no part.

Order affirmed, with costs, in a memorandum.

       Addressing the dissent, CPLR 4511 (a) is not determinative here. The purpose of that statute is to relieve parties of the burden of proving the substance of the enumerated laws (see, Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 4511, at 22; Legislative Studies and Reports, McKinney’s Cons Laws of NY, Book 7B, CPLR 4511, at 24; see also, Pfleuger v Pfleuger, 304 NY 148, 152). It does not obligate trial courts to take judicial notice of laws without regard to other considerations.
      Moreover, Sega v State of New York (60 NY2d 183) is inapposite. In Sega, plaintiff did "not argue that she could have negatived the defense posed by [the newly raised statute] through the presentation of other evidence” (Sega, 60 NY2d, at 193). Plaintiff here asserts that he could have negatived the defense.


text:
    [636 NE2d 1386, 613 NYS2d 853]
    In the Matter of Wesley M., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued April 27, 1994;
    decided May 12, 1994

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Helen P. Brown and Larry A. Sonnenshein of counsel), for appellant.

      Carol Goldstein, New York City, Elynn C. Lambert and Lenore Gittis for respondent.
   OPINION OF THE COURT

Memorandum.

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

After a hearing held in response to respondent’s motion to suppress physical evidence, Family Court, finding the arresting officer’s testimony unreliable, granted the motion and dismissed the juvenile delinquency petition. The Appellate Division affirmed.

In order to establish a prima facie case against a juvenile, a petition must contain " '[n]on-hearsay allegations * * * [that] establish, if true, every element of the offense charged and the [accused’s] commission of the offense’ ” (Matter of Jahron S., 79 NY2d 632, 637; see, Family Ct Act § 311.2 [3]; Matter of Rodney J., 83 NY2d 503). The petition in this case is jurisdictionally defective and must be dismissed as it fails to make out a prima facie case against respondent for criminal possession of a controlled substance. The supporting deposition of Officer Ferino and the laboratory report attached to the petition do not contain nonhearsay allegations establishing that the substance in question was heroin. Officer Perino’s supporting deposition alleges that he observed respondent in possession of 54 decks of heroin. In Jahron S., this Court held that a petition, taken together with the supporting deposition of a police officer who attested to his experience and expertise in dealing with illicit narcotics, and who personally observed the juvenile in possession of crack cocaine, was legally insufficient to establish a prima facie case of possession in the absence of a laboratory report identifying the substance seized as cocaine. Thus, Officer Perino’s supporting deposition, which does not even attest to his expertise in dealing with illicit narcotics, does not serve to render the petition in this case jurisdictionally sufficient on its face.

Nor does the police laboratory report annexed to the petition contain the requisite nonhearsay allegations establishing that the substance in question was heroin. As in Rodney J. (supra, at 507), the report in this case "purports only to be a copy of the original report, and gives no indication that it was signed by the person who tested the [drugs] and prepared that original report.” The laboratory report here contains the signature of S. Girgis, a chemist; but that person certified only that the report was a true and full copy of the original and did not actually attest to any personal knowledge regarding the substance seized (id.). Accordingly, the petition must be dismissed as jurisdictionally defective on its face due to the absence of nonhearsay allegations establishing every element of the offenses charged (id.).

We need not reach the other issues presented in this appeal.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, without costs, in a memorandum.


text:
    BNY Financial Corporation, Respondent, v Richard Marlow et al., Appellants.
    Submitted March 14, 1994;
    decided May 12, 1994
   Motion, insofar as it seeks leave to appeal from the February 3, 1994 Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, and from so much of the November 16, 1993 Appellate Division order as dismissed defendants’ appeal from Supreme Court’s order denying defendants’ motion for reargument, dismissed upon the ground that the order of February 3, 1994 and the above-specified portion of the November 16, 1993 order do not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Susan L. Bogdan, Appellant, v New York State Board for Professional Medical Conduct et al., Respondents.
    Submitted February 28,1994;
    decided May 12,1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Norman Dell, Appellant, v Commodore Parking, Inc., et al., Respondents.
    Submitted May 2, 1994;
    decided May 12, 1994
   Appeal, insofar as taken from that portion of the Appellate Division order which denied plaintiff’s motion for poor person relief, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from the remainder of the Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see, CPLR 5601).


text:
    Barbara Gardiner, Respondent, v Linda Lorch, Appellant.
    Submitted March 14, 1994;
    decided May 12, 1994
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Term of Supreme Court (see, CPLR 5602).


text:
    Great Western Bank, Respondent, v Vincent R. Terio, Appellant.
    Submitted March 14, 1994;
    decided May 12, 1994
   On the Court’s own motion, appeal insofar as taken from the February 10, 1994 Appellate Division order denying defendant’s motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed, without costs, upon the ground that that order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from the February 10, 1994 Appellate Division order denying defendant’s motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    Great Western Bank, Respondent, v Vincent Terio, Appellant.
    Submitted May 2, 1994;
    decided May 12, 1994
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Kahre-Richardes Family Foundation, Inc., et al., Appellants, v Village of Baldwinsville et al., Respondents.
    Submitted March 14, 1994;
    decided May 12, 1994
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513, 2103 [b] [6]).


text:
    Everett J. Krantz et al., Appellants, v Evi Scholtz et al., Defendants, and Albert Mendel & Sons, Inc., et al., Respondents.
    Submitted March 28, 1994;
    decided May 12, 1994
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see, Paglia v Agrawal, 69 NY2d 946; Cohen and Karger, Powers of the New York Court of Appeals § 36 [b], at 143-144).


text:
    In the Matter of John W. Matthews, Appellant, v Thomas S. Gulotta et al., Respondents.
    Submitted May 2, 1994;
    decided May 12, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that appellant is not a party aggrieved (see, CPLR 5511).


text:
    In the Matter of Manojkumar D. Patel, a Suspended Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted April 25, 1994;
    decided May 12, 1994
   Judge Smith taking no part.


text:
    The People of the State of New York, Respondent, v Charles Glinton, Appellant.
    Submitted May 2, 1994;
    decided May 12, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the appeal taken as of right does not lie. The order of the Supreme Court, New York County, appealed from is considered to be an order denying a motion for reargument of defendant’s motion pursuant to CPL 440.10 to vacate the judgment.


text:
    In the Matter of the People of the State of New York, by Robert Abrams, as Attorney-General of the State of New York, Respondent, v New Woman, Inc., et al., Respondents, and Fleet National Bank, Appellant.
    Submitted February 28, 1994;
    decided May 12, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed movant’s appeal from the June 13, 1991 judgment of Supreme Court, dismissed upon the ground that as to that part of the Appellate Division order, movant is not a party aggrieved; motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that the remaining part of the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Gary Rodriguez, Respondent, v Margaret Tietz Center for Nursing Care, Inc., Defendant and Third-Party Plaintiff, Restor Technologies, Inc., Third-Party Defendant-Appellant; Kenneth S. Glass et al., Fourth-Party Defendants-Respondents.
    Submitted March 14, 1994;
    decided May 12, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division orders of May 21, 1990, October 12, 1993 and January 5, 1994, dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion insofar as it seeks leave from these orders; motion for leave to appeal otherwise granted.


text:
    In the Matter of Doris L. Sassower, Appellant, v Guy J. Mangano, as Presiding Justice of the Appellate Division of the Supreme Court, Second Department, et al., Respondents.
    Submitted May 2, 1994;
    decided May 12, 1994
   Judges Levine and Ciparick taking no part.


text:
    [638 NE2d 949, 615 NYS2d 304]
    In the Matter of Jonathan P. Harvey, as Special District Attorney, Respondent, v County of Rensselaer, Appellant.
    Argued May 4, 1994;
    decided June 9, 1994
    APPEARANCES OF COUNSEL

      Robert A. Smith, County Attorney, of Rensselaer County, Troy, for appellant.

      Harvey and Harvey, Harvey & Mumford, Albany (Eva Lynn M. Hayko, Jonathan P. Harvey and John J. Cavanaugh, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order, insofar as appealed from, should be reversed, with costs, and the matter remitted to County Court for recalculation of compensation due petitioner.

When a District Attorney is disqualified from conducting an investigation or prosecution, County Law § 701 authorizes appointment of a Special District Attorney. Once appointed, the Special District Attorney possesses all the powers, and must discharge all the duties, of the District Attorney as to that matter (County Law § 701 [4]).

The District Attorney has only limited power, however, to hire staff. Section 700 (5) provides that the County Board of Supervisors alone may create the position of "confidential secretary” to the District Attorney. Section 702, governing the hiring of Assistant District Attorneys, requires authorization of the position by the Board of Supervisors, and filing of the appointment with the County Clerk. The Assistant must take an oath of office. Lastly, as we recognized in Matter of Knight (191 NY 286), section 703 requires a District Attorney faced with a particularly demanding case to seek the approval of the County Judge prior to employing counsel to assist in the trial. These provisions establish that a District Attorney requires the approval of the County Court or Board of Supervisors (depending on the position to be created or filled) in order to hire legal staff at public expense.

Here, the attorney appointed to act as Special District Attorney sought compensation for hours billed by associates in his law firm, as well as for the services of a law clerk. Although County Court authorized payment, petitioner had failed to obtain prior approval for compensation to members of his staff. The County Attorney objected to payment for the services of any attorney other than the Special District Attorney himself on the grounds that the statute permits compensation only for the person "appointed.” Although the Appellate Division rejected the county’s contention, it nevertheless reduced the award, finding the hourly rates charged to be excessive.

Because a Special District Attorney’s powers are coextensive with those of a District Attorney, a Special District Attorney must, by implication, obtain approval before additional staff can be hired to assist in a prosecution, just as a District Attorney must do. Because no such approval was obtained here, County Court was without legal authority to order compensation for services rendered by persons other than the Special District Attorney himself. As we observed in People v Leahy (72 NY2d 510, 513-514), legislative authorization to appoint a Special District Attorney is to be invoked sparingly, and "[t]his exceptional superseder authority should not be expansively interpreted.” We therefore decline petitioner’s sole request that we recognize broader hiring powers for an appointed Special District Attorney than the Legislature has conferred upon elected District Attorneys themselves.

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

Order, insofar as appealed from, reversed, with costs, and matter remitted to Rensselaer County Court for further proceedings in accordance with the memorandum herein.


text:
    [638 NE2d 950, 615 NYS2d 305]
    In the Matter of Michael O’Connor, Appellant, v Anthony A. Scarpino, Jr., as Judge of the Westchester County Court, Respondent. In the Matter of Belinda G. Eddy, Appellant, v Patrick L. Kirk, as Judge of the Herkimer County Court, Respondent.
    Argued April 26, 1994;
    decided June 9, 1994

      APPEARANCES OF COUNSEL

      Jeffrey Chamberlain, Albany, for appellants.

      G. Oliver Koppell, Attorney-General, Albany (Wayne L. Benjamin, Jerry Boone and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Penal Law § 400.00 is the exclusive statutory mechanism for the licensing of firearms in New York State. Under subdivision (2) (f) of that section, a licensing officer is empowered to issue the so-called "carry license”, which authorizes a licensee to have a pistol or revolver and carry it concealed, "when proper cause exists for the issuance thereof’.

Petitioner Eddy sought a carry license from the Herkimer County licensing officer, stating in her application that she intended to use a pistol for "hunting and target shooting”. The officer issued the license with the notation that it was "issued for hunting, fishing & target practice”. Petitioner O’Connor sought a carry license from the Westchester County licensing officer, indicating that he wanted to use a weapon in "hunting, target shooting and protection of property and person”. The officer issued the license with a notation that it was "restricted to target shooting, hunting only”.

In each matter, petitioner argues that the restriction should be removed from the license because the statute does not expressly empower licensing officers to impose conditions. We agree with the courts below that the licensing officers’ power to determine the existence of "proper cause” for the issuance of a license necessarily and inherently includes the power to restrict the use to the purposes that justified the issuance. Without such a power to condition, the licensing officer’s authority to allow possession of a handgun only for proper cause would be rendered meaningless and the obvious regulatory purpose of the statute would be frustrated.

Moreover, petitioners’ argument is inconsistent with the regulatory scheme of Penal Law § 400.00. The other licenses allowed by the statute are narrowly circumscribed to the circumstances justifying their issuance (see, e.g., subd [2] [a] [license to possess in dwelling]; [b] [license to possess in place of business]; [e] [license to possess during certain employment]). Were we to read the carry license of subdivision (2) (f) to allow possession of firearms generally once good cause was shown, there would be no reason for applicants to seek the more restrictive licenses enumerated in the statute when they could just as easily qualify for the broader carry license. Clearly, the legislative intent behind subdivision (2) (f) was to create a license coequal to the other licenses, not one that would render the other licenses superfluous.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

In each case: Judgment affirmed, with costs, in a memorandum.


author: Ciparick, J.

text:
    [638 NE2d 951, 615 NYS2d 306]
    The People of the State of New York, Appellant, v Edwin Verez, Also Known as Edwin Velez, Respondent.
    Argued May 5, 1994;
    decided June 9, 1994

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Ellyn Polshek and Patrick J. Hynes of counsel), for appellant.

      Edwin A. Rollins, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to dismiss the indictment denied in its entirety and the count of criminal possession of a weapon in the third degree reinstated.

Shortly after midnight on August 31, 1990, two police officers on Amsterdam Avenue in Manhattan, near the intersection of West 156th Street, heard gunshots from across the street and saw Felix Sanchez and Ricardo Agostini firing handguns at an unarmed black male. As the officers ran toward the scene, Sanchez attempted to shoot one of them, but his pistol jammed. Sanchez fled through an alley one block to St. Nicholas Avenue and entered a van driven by the defendant. Agostini was shot by the officers during the chase. The van headed south toward West 155th Street and was stopped shortly thereafter by Police Officer Steven Reinhardt two blocks away from where Sanchez had entered it. When defendant and Sanchez were removed from the van, a .32 calibre pistol was found on a bag in the space between the front bucket seats, the pistol still warm from a recent firing and still jammed with a spent bullet in the chamber.

In a joint indictment, Sanchez was charged with murder in the second degree, attempted murder in the first degree and criminal possession of a weapon in the second degree, Sanchez and the defendant were charged with criminal possession of a weapon in the third degree, and defendant was charged with hindering prosecution in the second degree.

Defendant moved to dismiss the indictment for insufficiency. He contended that the possession count, based on the presumption contained in Penal Law § 265.15 (3), was insufficient because, inasmuch as the gun had been seen in Sanchez’s possession, the exception contained in paragraph (a) of that section applied. Supreme Court agreed and, absent other evidence of actual or constructive possession, dismissed the indictment. The Appellate Division reinstated the hindering count but otherwise affirmed (191 AD2d 378).

The issue is whether defendant was entitled to the benefit of the exception. If he was not, the statutory presumption established a prima facie case of unlawful possession on the facts recited (see, People v Lemmons, 40 NY2d 505, 510).

Penal Law § 265.15 (3) (a) provides that the presence in an automobile of "any firearm * * * is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon * * * is found, except * * * if such weapon * * * is found upon the person of one of the occupants therein.”

In Lemmons, two handguns had been found in a woman’s handbag which rested between the door and the front seat on the floor of a car. All four people in the car had been convicted of possession under section 265.15 (3). The woman who was seated in the front passenger side of the car admitted ownership of the bag and thus the three men in the car contended that the presumption was inapplicable as the weapons had been found upon her person.

We held that the placement of a weapon in a handbag did not necessarily indicate that the owner of the handbag was in sole and exclusive possession of the weapon. Rather, the answer to the question depended "upon the access to the bag that others may have and whether the others have knowledge of its contents” (People v Lemmons, supra, at 511). That presented a question of fact: the applicability of the presumption should not have been taken away from the fact finder unless there was clearcut evidence that the woman possessed it. We noted that by the terms of the statute, the exception applies only where the weapon is found on the person of another citing, as illustrative, instances where the weapon was found under one person’s shirt or other items of clothing or in a pocket (see, People v Lemmons, supra, at 511). The exception may also apply where an officer observes a person remove a weapon from his or her person immediately prior to arrest in an attempt to hide it somewhere inside an automobile (see, People v Lemmons, supra, citing People v Garcia, 41 AD2d 560, 561; and People v Davis, 52 Misc 2d 184, 185). However, where the officer does not observe the weapon in the exclusive possession of any one person immediately prior to or at the time of arrest, the exception is inapplicable.

In this case, the weapon was found between the front bucket seats of the van and there was no testimony from Officer Reinhardt indicating he had observed either Sanchez or defendant in possession of the weapon immediately prior to arrest. The exception is, therefore, inapplicable. The presumption is rebuttable and the facts may, as here, suggest an accomplice’s ownership. But whether the rebuttal evidence is sufficient to overcome the presumption is a matter for the fact finder, not the court.

Ciparick, J.

(concurring). While I am constrained to agree with the result reached by the majority, the injustice created under the facts of this case by a literal reading of the exception that the weapon be found on the person of an occupant in a motor vehicle (Penal Law § 265.15 [3] [a]) merits consideration.

Here, the facts clearly demonstrate that the seized weapon had been carried into a waiting van by the individual who attempted to shoot the police officers in his pursuit. The fleeing shooter was then apprehended in the passenger seat of that van minutes after the shooting incident, and the warm pistol jammed with a spent bullet was found between the seats occupied by him and the driver of the van, who by all accounts was in the driver’s seat throughout the incident. Certainly, under these circumstances, the efficacy of attributing possession of the weapon to the defendant driver by way of a rebuttable presumption is dubious and compels a result at odds with the legislative impetus for this exception (see, People v Lemmons, 40 NY2d 505, 510-512; People v Wesley, 73 NY2d 351, 361 [statute prompted by the frequency of cases in which the People were unable to secure any conviction when a weapon was concealed in an automobile with more than one occupant]). In this regard, I believe it would be useful for the Legislature to consider an amendment to Penal Law § 265.15 (3) (a) to remedy this statutory injustice.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur in memorandum; Judge Ciparick concurs in result in an opinion.

Order reversed, etc.


text:
    [638 NE2d 954, 615 NYS2d 309]
    The People of the State of New York, Respondent, v Gerald Gaines, Appellant.
    Argued April 28, 1994;
    decided June 9, 1994

      APPEARANCES OF COUNSEL

      William A. Loeb, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Andrew J. Shipe and Allen H. Saperstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of assault in the second degree. The charge arose from an altercation between defendant and complainant Boyd over Boyd’s aborted attempt to drive, for pay, defendant and a prostitute known as "Blondie” to a designated location. Defendant argues that he was entitled to an intoxication instruction pursuant to Penal Law § 15.25. Defendant and Boyd gave conflicting accounts of the struggle. Yet defendant admitted that he hit Boyd, excusing his actions because he "may have lost control” and that "[he] had a couple of drinks and [he] just got ripped off or whatever.” The officers testified that when they arrived, defendant continued to kick the prostrate Boyd, a much smaller man who was 64 years old. Supreme Court refused to instruct the jury on intoxication, and the Appellate Division held that defendant’s testimony was equivocal, that there was no evidence of the type, quantity or volume of defendant’s drinks, nor was there any indication of the specifics of defendant’s drinking prior to the event. Concluding that the evidence was insufficient to entitle defendant to the intoxication charge under the statute, that Court affirmed Supreme Court’s judgment. A Justice of the Appellate Division granted leave to appeal to this Court.

We have held that "[w]here the issue on appeal is whether a particular theory of defense should have been charged to the jury, the evidence must be viewed in the light most favorable to the defendant” (see, People v Farnsworth, 65 NY2d 734, 735). Evidence of intoxication, even under this standard, requires more than a bare assertion by a defendant that he was intoxicated. "A charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” (see, People v Perry, 61 NY2d 849, 850; see also, People v Rodriguez, 76 NY2d 918, 920-921).

Here, defendant failed to meet this relatively low threshold. Defendant’s evidence lacked requisite details tending to corroborate his claim of intoxication, such as the number of drinks, the period of time during which they were consumed, the lapse of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific impact of the alcohol upon his behavior or mental state (see, People v Rodriguez, 76 NY2d 918, 921, supra). Nor did the prostitute’s statement that defendant was "high” or the police officer’s comments that defendant had glassy eyes and alcohol on his breath add sufficiently to defendant’s statements to warrant the intoxication instruction (id.).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    In the Matter of the Arbitration between Merrill Lynch, Pierce, Fenner & Smith, Inc., et al., Appellants, and Margaret B. Manhard, Respondent.
    Submitted April 11,1994;
    decided June 9,1994
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    Smith Barney Harris Upham & Co., Inc., Appellant, v Charlie Luckie, Jr., et al., Respondents, and Doris Kahn, Respondent.
    Submitted February 28, 1994;
    decided June 9, 1994
   Motion for leave to appeal granted. Motion for a stay denied.


text:
    [638 NE2d 955, 615 NYS2d 310]
    The People of the State of New York, Respondent, v Rafael Sierra, Appellant. The People of the State of New York, Respondent, v James Robbins, Appellant.
    Argued April 27, 1994;
    decided June 14, 1994

      APPEARANCES OF COUNSEL

      David B. Affler, New York City, and Philip L. Weinstein for appellant in the first above-entitled action.

      Robert M. Morgenthau, District Attorney of New York County, New York City (David J. Mudd and Mark Dwyer of counsel), for respondent in the first above-entitled action.

      Elizabeth Manning, New York City, and Philip L. Weinstein for appellant in the second above-entitled action.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Ann P. Wyllie and Norman Barclay of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in People v Sierra should be affirmed. The order of the Appellate Division in People v Robbins should be reversed, defendant’s motion to suppress granted, and the indictment dismissed.

At issue in both cases is solely the application of a well-settled principle: that a defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit. Whether the circumstances known to the police in a particular case give rise to reasonable suspicion is a mixed question of law and fact beyond our review unless there is no evidence in the record to support the determination of the lower courts. We conclude that in Sierra there was evidence in the record to support the determination of reasonable suspicion, and in Robbins there was not.

In Sierra, police officers patrolling a neighborhood of Washington Heights known to them as a "narcotics supermarket” for New Jersey residents, watched a man exit a parked vehicle with New Jersey license plates, walk toward defendant in response to defendant’s calling out "over here, over here,” and promptly turn and walk away upon spotting the police. These facts furnished an objective, credible reason to approach defendant. Defendant’s refusal to approach the cruiser and his subsequent flight gave rise to reasonable suspicion that he was committing or was about to commit a drug-related crime. Because the record supports the determination of both lower courts that the officers had reasonable suspicion to pursue defendant, defendant’s abandonment during the pursuit of a paper bag containing drugs was not precipitated by illegal police conduct and, accordingly, denial of suppression was proper.

By contrast, in Robbins, the officers knew only that, after exiting from the back seat of a livery cab that had been stopped for defective brake lights, defendant grabbed at his waistband and then fled, facts which provided them with no information regarding criminal activity. As the factual record does not support a determination that the officers had reasonable suspicion to pursue defendant, evidence of the plastic bag containing drugs he abandoned in response to the illegal pursuit should have been suppressed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

In People v Sierra: Order affirmed in a memorandum.

In People v Robbins: Order reversed, defendant’s motion to suppress granted and indictment dismissed in a memorandum.


text:
    [638 NE2d 957, 615 NYS2d 312]
    In the Matter of Laura B. Volk, Respondent, v Board of Education of the City School District of Rochester, Appellant.
    Argued April 26, 1994;
    decided June 14, 1994

      APPEARANCES OF COUNSEL

      Adam, D. Kaufman, Rochester, and Tynise Y. Edwards for appellant.

      Hinman, Straub, Pigors & Manning, P. C., Albany (Bartley J. Costello, III, and Cheryl E. Potvin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition dismissed.

On this appeal, we consider whether the determination of respondent Board of Education to terminate petitioner as Director of Human Resources based on seniority was arbitrary.

Petitioner was appointed, pursuant to the Civil Service Law, to the position of Director of Civil Service Personnel on August 8, 1983. On September 1, 1984, the State Education Department notified her that she was eligible for a provisional certificate in the area of School Administrator/Supervisor and, exactly two years later, the Department permanently certified her in that area.

More than three years later, on October 6, 1987, petitioner officially requested reclassification of her position from Director of Civil Service Personnel to a certificated position pursuant to the Education Law. On February 6, 1989, respondent Board of Education reclassified petitioner to the certificated position of Director of Civil Service Personnel, Personnel Services. In a letter dated February 15, 1989, respondent notified petitioner of her reclassification, with a seniority date of February 6, 1989, and informed her that as of that date, a new three-year probationary period began and that she would be granted tenure only upon the satisfactory completion of that probationary period. Petitioner signed and returned the letter, as directed, but noted her "objection to seniority date.”

On January 24, 1992, citing fiscal constraints, respondent notified petitioner that it had eliminated one Director of Human Resources position and that pursuant to Education Law § 2585 (3), her position, the least senior within the tenure area, would be terminated effective February 1, 1992. Petitioner commenced this action challenging her termination, alleging that respondent violated Education Law § 2585 (3) by miscalculating her seniority date, and that a proper calculation would have placed her in the position of having the second most seniority in her tenure area.

Supreme Court granted the petition to the extent of setting petitioner’s seniority date at October 6, 1987, the date of her initial application for reclassification. The court found that it was arbitrary and capricious for respondent to set her seniority date beyond that date, regardless of any subsequent change in title and pay, since petitioner had already been certified as a School Administrator/Supervisor and had worked in the Department at a director level for over five years. The Appellate Division affirmed, and this Court granted leave to appeal.

Respondent argues that under Education Law § 2585 (3) petitioner’s seniority is properly measured from the date of petitioner’s formal appointment to a certificated position on February 6, 1989. Petitioner counters that the courts below properly measured her seniority from October 6, 1987.

The Rules of the Board of Regents define the term "seniority” as "length of service in a designated tenure area, rather than length of service in the district” (8 NYCRR 30.1 [ip). Because petitioner was first appointed to the certified administration position under the Education Law on February 6, 1989, her seniority under Education Law § 2585 (3) must be measured from that date, and respondent’s action in so doing was not arbitrary or capricious. We are not persuaded by petitioner’s contention that the courts below properly calculated her seniority date because previously she performed the same duties in her appointment under the Civil Service Law.

No case law or statute supports petitioner’s claim that her seniority in her Civil Service statutory appointment is transferable to her seniority in her certificated position under the Education Law. We conclude that petitioner may not properly credit the time she accrued in her Civil Service appointment toward her service in her certificated administrative position under the Education Law.

Matter of Crandall (20 Ed Dept Rep 16) is distinguishable from the present case. In that case, the petitioners, tenured elementary school teachers in the Burnt Hills-Ballston Lake Central School District, who had each received an appointment as a regular substitute teacher and each had been continuously employed as a regular substitute teacher until given the probationary appointment, challenged the discontinuance of their services, pursuant to Education Law § 2510 (2). Reasoning that service of a regular substitute is equivalent to service rendered pursuant to a probationary appointment, the Commissioner stated, "Seniority credit recognizes continuous full-time service rendered to a school district * * * [and] it is reasonable to assume that teachers will be retained according to their length of continuous service, whether such service was all rendered subsequent to a probationary appointment or was rendered partly before and partly after such an appointment” (id., at 19). Here, petitioner was not appointed to a substitute position under the Education Law prior to her probationary period. Rather, she was appointed to a position under the Civil Service Law. It cannot be said that her service prior to her probationary appointment was continuous with her service under the Education Law after the appointment.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.

       Education Law § 2585 (3) provides, "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”


text:
    George Madden et al., Plaintiffs, v Creative Services, Inc., et al., Defendants.
    Decided June 14, 1994
   Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    [638 NE2d 958, 615 NYS2d 313]
    The People of the State of New York, Respondent, v Ronald E. Evans, Appellant.
    Decided June 16, 1994

      APPEARANCES OF COUNSEL

      Vincent F. Gugino, Buffalo, and Linda S. Reynolds for appellant.

      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Susan D. Nusbaum of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The issue whether the police acted reasonably in stopping and searching defendant is a mixed question of law and fact, and evidence exists in the record to support the hearing court’s findings as affirmed by the Appellate Division (see, People v Falciglia, 75 NY2d 935, 937; People v Castro, 68 NY2d 850, 851; People v Harrison, 57 NY2d 470).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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


text:
    [639 NE2d 406, 615 NYS2d 867]
    The People of the State of New York, Respondent, v Kevin Cole, Appellant.
    Decided June 16, 1994

      APPEARANCES OF COUNSEL

      Anna M. Perry, Riverhead, and Robert C. Mitchell for appellant.

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Michael J. Miller of counsel), 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 for the reasons stated in People v Sprowal (84 NY2d 113 [decided today]).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    [638 NE2d 959, 615 NYS2d 314]
    In the Matter of James M. Armstrong, Appellant, v Centerville Fire Company, Respondent.
    Argued April 28, 1994;
    decided June 16, 1994

      APPEARANCES OF COUNSEL

      Maynard, O’Connor & Smith, Saugerties (Joseph C. Scala of counsel), for appellant.

      Rosenbaum & Lamb, Saugerties (Daniel N Lamb, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, a volunteer member of respondent Centerville Fire Company, received a letter from respondent’s president in January 1991, directing him, in accordance with respondent’s bylaws, to put his resignation as secretary of respondent in writing, no later than February 1, 1991. When petitioner failed to do so, a majority of respondent’s members voted to expel him as a member of respondent, effective March 28, 1991, and he was so notified by letter of March 21, 1991. Petitioner unsuccessfully demanded his reinstatement at a meeting of respondent’s board of directors held May 23, 1991. He commenced this CPLR article 78 proceeding seeking reinstatement on September 6, 1991.

Supreme Court dismissed the petition on the ground that the proceeding was time barred, and the Appellate Division affirmed (195 AD2d 723). We agree. Petitioner’s expulsion from respondent’s membership became final and binding March 28, 1991. The Statute of Limitations began to run on that date, unless petitioner was entitled to a hearing before being expelled (Matter of De Milio v Borghard, 55 NY2d 216, 220).

Petitioner was not statutorily entitled to a hearing before being expelled for having violated respondent’s bylaws. The controlling statute (General Municipal Law § 209-l) only grants volunteer officers and volunteer members of fire departments the right to a hearing (upon written notice of charges) before being removed on the ground of incompetence or misconduct. The Legislature did not intend thereby to interfere with the disciplining of volunteer firefighters in connection with the conduct of the internal affairs of a fire company. Thus, General Municipal Law § 209-Z expressly provides that the right to a hearing and other statutory procedural protections "shall not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company”.

Moreover, the determination of whether petitioner’s recalcitrance in submitting a written resignation violated respondent’s bylaws justifying the sanction imposed clearly involves the exercise of more than a nondiscretionary ministerial duty. Therefore, petitioner’s sole remedy was in the nature of mandamus to review rather than mandamus to compel (see, Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757). The four-month period of limitations governing mandamus to review starts to run when the determination becomes final and binding (Matter of De Milio v Borghard, supra, at 220). In this case, that occurred on March 28, 1991, the effective date of petitioner’s expulsion. Commencement of this proceeding the following September was therefore untimely. Since the lower courts correctly resolved this controversy, an affirmance is warranted.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs, in a memorandum.


text:
    Evelyn Brant et al., Appellants, v National Grange Mutual Insurance Company, Respondent.
    Submitted April 25, 1994;
    decided June 16, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Earl Clark et al., Appellants, v Virginia A. DeJohn et al., Individually and Doing Business as Pullen’s Truck Center, et al., Respondents.
    Submitted March 7,1994;
    decided June 16, 1994
   Motion, insofar as it seeks leave to appeal as against defendants Virginia and Frank DeJohn, dismissed upon the ground that as to those defendants the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    John S. DeJose, Respondent, v Grace DeJose, Appellant.
    Submitted May 16,1994;
    decided June 16, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie, appellant having previously taken an appeal to the Court of Appeals (66 NY2d 804) from the same Appellate Division order from which her appeal is currently taken.


text:
    Susan Dufel et al., Respondents, v Randy H. Green et al., Appellants.
    Submitted April 11, 1994;
    decided June 16, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the September 22, 1992 Supreme Court order denying defendants’ motion to set aside the verdict, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    In the Matter of Gladys A. Endreson, Appellant, v New York City Employees’ Retirement System, Respondent.
    Submitted April 25, 1994;
    decided June 16, 1994
   Motion to amend this Court’s decision dated March 17, 1994 denied. [See, 83 NY2d 888.]


text:
    James Harrison, Appellant, v State of New York, Respondent.
    Submitted April 25,1994;
    decided June 16,1994
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (see, Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    In the Matter of the Guardianship of Janet L., Respondent. Gillray L., Appellant; Mental Hygiene Legal Services, as Guardian ad Litem, Respondent.
    Submitted April 25, 1994;
    decided June 16, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed petitioner’s appeal from the Supreme Court order entered on April 24, 1992 and from that portion of the Appellate Division order that affirmed the Supreme Court order entered on March 24, 1993, dismissed upon the ground that those portions of the order sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Dennis McClinchy, Appellant, v National Railroad Passenger Corporation, Respondent.
    Submitted March 21,1994;
    decided June 16, 1994
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which dismissed the appeal from Supreme Court’s order denying plaintiff's motion for renewal and/or reargument, dismissed upon the ground that that part of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    John P. Morrisey et al., Appellants, v County of Erie et al., Respondents.
    Submitted May 2, 1994;
    decided June 16, 1994
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    Paul Murphy et al., Appellants, v Mount Sinai Hospital, Respondent.
    Submitted April 18, 1994;
    decided June 16, 1994
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s determination denying plaintiffs’ cross motion to amend their complaint, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Myers, Smith & Granady, Inc., Appellant, v New York Property Insurance Underwriting Association, Respondent.
    Submitted March 28, 1994;
    decided June 16, 1994
   Judge Smith taking no part.


text:
    The People of the State of New York, Respondent, v Richard Graham, Appellant.
    Submitted April 25, 1994;
    decided June 16, 1994
   Judge Levine taking no part.


text:
    The People of the State of New York, by Robert Abrams, as Attorney-General of the State of New York, Respondent, v Westchester County S.P.C.C. et al., Appellants.
    Submitted April 18,1994;
    decided June 16,1994
   Motion, insofar as it seeks leave to appeal from the November 29, 1993 Appellate Division order which dismissed defendants’ appeal from the order of Supreme Court entered January 25, 1991 and from the February 18, 1994 order of the Appellate Division denying defendants’ motion for leave to appeal to the Court of Appeals, dismissed upon the ground that those orders do not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    John Roberts, Appellant, v Dominic Rubio et al., Respondents, et al., Defendants.

      Submitted April 18, 1994;
    decided June 16, 1994
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    In the Matter of Howard Schrier et al., Appellants, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Submitted April 25,1994;
    decided June 16, 1994
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    In the Matter of Union Indemnity Insurance Company. Superintendent of Insurance of the State of New York, as Liquidator of Union Indemnity Insurance Company, Appellant. Solco Plumbing Supply, Inc., Respondent.
    Submitted May 2, 1994;
    decided June 16, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying the motions for reargument, leave to appeal and a stay, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    Andrew L. Winter, Appellant, v Beal, Lynch & Co. et al., Respondents.
    Submitted March 28, 1994;
    decided June 16, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed that part of the Supreme Court’s determination denying plaintiffs cross motion to amend the amended complaint, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    [638 NE2d 961, 615 NYS2d 316]
    The People of the State of New York, Respondent, v Jose Reyes, Appellant.
    Decided June 21, 1994
    APPEARANCES OF COUNSEL

      Frank Loss, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Tami J. Aisenson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In the early afternoon of November 15, 1991, two police officers, Adrian Klapper and Donald McCarthy, were in uniform in a marked police van patrolling the vicinity of 185th Street and Wadsworth Avenue, New York County. They observed defendant clutch inside his black corduroy jacket beneath his armpit, place both hands in his pants pockets and walk briskly away from a group of men standing in the "drug-prone” area. The officers followed defendant and, as they approached him with their hands on their bolstered guns and positioned themselves on both sides of him, Officer Klapper yelled, "Hey, stop, excuse me” or "Stop, hey, stop, police,” or words to that effect. When defendant stopped and turned toward Officer Klapper, a kilogram "brick” of cocaine fell from defendant’s armpit onto the ground. The officers arrested defendant and a search of him revealed another kilogram brick of cocaine hidden inside his jacket under his other armpit and $280.

Defendant’s motion to suppress was denied following a hearing and, thereafter, he pleaded guilty to criminal possession of a controlled substance in the second degree. The Appellate Division affirmed, with two Justices dissenting, and a Justice of that Court granted leave to appeal.

We agree with the Appellate Division that the police action in this case constituted nothing more than a permissible request for information based on some objective credible reason (see, People v Hollman, 79 NY2d 181, 191; People v De Bour, 40 NY2d 210, 223; see also, People v Bora, 83 NY2d 531). Defendant was observed in a "drug-prone” area walking away from a group of men and clutching the inside of his jacket beneath his armpit as a marked police van approached.

In addition, the Appellate Division’s determination that defendant’s relinquishment of the first kilogram brick of cocaine was not based upon submission to police authority is a mixed question of law and fact that is supported by the record, and, thus, is not subject to our further review (see, People v Holmes, 81 NY2d 1056, 1058-1059; People v Hollman, 79 NY2d, at 193-194, supra).

Chief Judge Kaye and Judges Simons, Titone, Bellacos a, Smith, Levine and Ciparick concur.

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


text:
    [639 NE2d 412, 615 NYS2d 872]
    Debra S. Moshier et al., Appellants, v Phoenix Central School District et al., Respondents.
    Decided June 21, 1994

      APPEARANCES OF COUNSEL

      John T. Sullivan, Jr., Oswego, for appellants.

      Bond, Schoeneck & King, Syracuse (John G. McGowan of counsel), for respondents.
   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 of the Appellate Division (199 AD2d 1019).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    [638 NE2d 962, 615 NYS2d 317]
    Shante D., an Infant, by Her Mother and Natural Guardian, Ada D., et al., Respondents, v City of New York et al., Appellants.
    Argued May 5,1994;
    decided June 21, 1994

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Ellen B. Fishman and Leonard Koerner of counsel), for appellants.

      Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), Salzman, Ingber & Winer, New York City (Alan Salzman of counsel), and Norman E. Frowley, New York City, 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.

According to the trial testimony, on March 4, 1986, when plaintiff was a third-grade student in Community School 30 in Manhattan, she was sexually assaulted by two other girls in a school bathroom. The jury returned a verdict in plaintiff’s favor, finding that defendants’ negligence was the proximate cause of her injuries. The trial court set aside the jury’s verdict on defendants’ motion. The Appellate Division reversed Supreme Court’s order, denied defendants’ motion, and reinstated the jury verdict. Viewing the evidence, as we must, in the light most favorable to plaintiff, it was not irrational for the jury to conclude that defendant’s failure to provide the requisite supervision was the legal cause of plaintiff’s injuries (see, Cohen v Hallmark Cards, 45 NY2d 493, 499; see also, Mirand v City of New York, 84 NY2d 44 [decided today]).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order affirmed, etc.


text:
    Costanza Construction Corporation, Appellant, v City of Rochester, Respondent, et al., Defendants. (And a Third-Party Action.)
    Submitted June 6, 1994;
    decided June 21, 1994
   Appeal pursuant to CPLR 5601 (d), from Supreme Court’s judgment entered February 17, 1994, which conditionally dismissed defendant City of Rochester’s counterclaims, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the judgment sought to be appealed from, being conditional, does not finally determine the action within the meaning of the Constitution (see, Cohen and Karger, Powers of the New York Court of Appeals § 14, at 60-65).


text:
    In the Matter of Robert F. Hahn, an Attorney, Appellant. Grievance Committee of the Eighth Judicial District, Respondent.
    Submitted May 9, 1994;
    decided June 21, 1994
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see, CPLR 5601).


text:
    The People of the State of New York ex rel. Hillary Best, Appellant, v Daniel Senkowski, as Superintendent of Clinton Correctional Facility, Respondent.
    Submitted June 13, 1994;
    decided June 21, 1994
   On the Court’s own motion, appeal, insofar as taken from that part of the Appellate Division order which affirmed the order of Supreme Court denying petitioner’s motion for reconsideration, dismissed, without costs, upon the ground that that portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the remainder of the Appellate Division order, dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed academic.


text:
    In the Matter of Carl D. Rosel, Appellant, v Thomas F. Hart, as Ulster County Commissioner of Public Works, et al., Respondents.
    Submitted May 16, 1994;
    decided June 21, 1994
   On the Court’s own motion, appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of William C. Wood, Jr., Respondent, v Roy A. Irving et al., Appellants.
    Submitted May 2, 1994;
    decided June 21, 1994
   Motion to vacate this Court’s April 12, 1994 order dismissing the appeal of appellants Irving and City of Rochester granted and appellants’ brief and appendix accepted as filed. [See, 83 NY2d 868.]


text:
    [639 NE2d 402, 615 NYS2d 863]
    Sophy P.Q. Haynes, Respondent, v Robert B. Haynes, Appellant. Miriam M. Robinson, as Guardian ad Litem, Respondent.
    Decided June 30, 1994

      APPEARANCES OF COUNSEL

      Arnold Davis, New York City, for appellant.

      Liddle, Robinson & Shoemaker, New York City (Miriam M. Robinson of counsel), guardian ad litem, respondent pro se.

      Alfieri, Frohman, Unger & Primoff, New York City (Peter J. Unger of counsel), for Sophy P.Q. Haynes, respondent.
   OPINION OF THE COURT

Memorandum.

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

The primary issue on this appeal is whether Supreme Court abused its discretion in awarding compensation to a guardian ad litem who was appointed, sua sponte, on behalf of the couple’s disabled adult child during the pendency of this matrimonial action, which included a dispute over the financial, medical and custodial arrangements for the child.

Plaintiff commenced this action for divorce on the ground of constructive abandonment and for custody and support of the couple’s third child, who is now over 21 years old, suffers from congenital Down’s Syndrome with severe mental retardation, functions at the level of a 4 year old and is likely to remain institutionalized for the remainder of his life. Because the couple had entered into a postnuptial agreement, which provided, in essence, that each party would retain sole ownership of all real and personal property acquired by him or her and that each party relinquished all claims to real and personal property acquired by the other party, plaintiff made no request for equitable distribution. However, plaintiff sought apportionment of compensation for the services of the guardian ad litem appointed, sua sponte, on behalf of the couple’s disabled child. Defendant counterclaimed, inter alla, challenging the validity of the postnuptial agreement and contesting the appointment and fees of the guardian ad litem since there was an outstanding decree of the Surrogate’s Court appointing him and plaintiff guardians of their son’s person pursuant to article 17-A of the SCPA.

Supreme Court rejected defendant’s challenges to the post-nuptial agreement, noted that plaintiff had paid initial guardian ad litem fees of $13,377.15, directed defendant to pay $11,163.37 in supplemental fees, and set the matter of the allocation of total guardian ad litem fees down for a hearing. The Appellate Division modified, on the facts, by reducing the supplemental fee of the guardian ad litem to $5,500, and, as so modified, affirmed, with one Justice dissenting (200 AD2d 457). The dissent would have vacated the guardian ad litem award, concluding that there was no legal basis for the appointment and that even after the reduction of the award, the guardian ad litem’s services remained "substantially overvalued” (see, id.). The Appellate Division then granted defendant’s motion for leave to appeal to this Court and certified the question, "Was the order of the Supreme Court, as modified by this Court, properly made?”

Defendant contends that since there was no reason to appoint a guardian ad litem in this case, the guardian ad litem was not entitled to compensation for her services. The guardian ad litem maintains that her services were warranted and her fees were proper.

Supreme Court noted that it appointed the guardian ad litem to protect the financial, medical and custodial needs of the couple’s disabled child during the pendency of this action. There is evidence in the record that the guardian ad litem, inter alla, reviewed the couple’s financial accounts, considered the effects of their contribution to child’s care on his public entitlement, extensively researched issues relating to custody and guardianship, interviewed several people, including instructors, who had regular contact with the child, made recommendations regarding his custody, and produced a report detailing her services in this case. We agree that the guardian ad litem contributed greatly to clarifying the issues and providing a framework for settlement. Thus, the court did not abuse its discretion in awarding compensation for the services to the guardian ad litem (see, Livingston v Ward, 248 NY 193, 195).

Defendant also argues that Supreme Court lacked subject matter jurisdiction over the custody dispute, that the court lacked the authority to appoint a guardian ad litem, that the guardian ad litem may not recover for the time spent preparing a report on her services in connection with her application for fees and that the court was not empowered to award parental support for an adult. The dissent at the Appellate Division states that defendant lodged jurisdictional objections to the trial court’s address of the custody issue, and that such objection was sufficient to preserve his objection to the ancillary issues of support and the appointment of the guardian ad litem. However, nothing in the record before us establishes that defendant raised the specific objections he now advances, and, thus, the claims were not preserved for our review.

Finally, the courts below correctly concluded that defendant’s conclusory allegations that the postnuptial agreement was unconscionable and fraudulently induced were insufficient to defeat plaintiff’s motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

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


text:
    [639 NE2d 404, 615 NYS2d 865]
    The People of the State of New York, Appellant, v Herman L., Respondent.
    Decided June 30, 1994
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Elizabeth R. Nochlin of counsel), for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Two indictments were handed up against defendant charging him with two counts of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree based on charges he sold a small quantity of heroin on two occasions in October 1989 to undercover police officers. Following a series of court appearances on these charges, defendant moved in May of 1991 to dismiss the indictments in the interest of justice pursuant to CPL 210.40 (1) citing, inter alla, his HIV infection; his voluntary participation in an AIDS research treatment program as well as in a drug treatment program; his lack of a prior criminal record; that this criminal activity was engaged in only to support his own addiction; and that he had not been rearrested since the charged conduct. Defendant did not submit any medical documentation of his medical condition or prognosis. The People opposed the motion, contending defendant had failed to show compelling circumstances justifying dismissal.

The trial court granted the motion and dismissed the indictments, after carefully reviewing in a written decision all of the criteria listed in CPL 210.40 (1) and finding several of them applicable and compelling. Among the factors considered and relied upon was defendant’s physical condition (see, CPL 210.40 [1] [d]), based upon the court’s own observations that defendant had physically deteriorated from one adjournment to the next, to the point where he could hardly stand. On the People’s appeal, their primary contention was that it was improper for the trial court to grant a dismissal of the indictments based in part on its own observations of defendant’s deteriorating health, in the absence of medical documentation. A divided Appellate Division affirmed (198 AD2d 71). A dissenting Justice granted the People leave to appeal to this Court, and we now affirm.

This Court’s review of an order pursuant to CPL 210.40 (1) dismissing indictments in the interest of justice is limited to the question of whether the dismissal was an abuse of discretian as a matter of law (see, People v Rickert, 58 NY2d 122, 128; People v Belge, 41 NY2d 60, 62). On our limited review, we conclude that while the motion court would have been entitled to exercise its discretion to hold a hearing and require submission of additional documentation regarding defendant’s medical condition and prognosis, it was not an abuse of discretion as a matter of law on these facts to grant the motion in the absence of such evidence (see, Matter of Weinstein v Haft, 60 NY2d 625, affg 93 AD2d 786). The motion was not premised or granted solely upon defendant’s medical condition. Also, the court did not engage in mere speculation concerning defendant’s illness in granting the motion, instead relying on the considerable information it possessed to guide its discretion, including the undisputed fact that defendant was HIV infected and his documented participation in an AIDS research treatment program, as well as its observations of defendant’s physical deterioration. Thus, we decline to impose any absolute rule that an interest of justice dismissal of an indictment based in part on a defendant’s medical condition must always be supported by expert medical evidence or documentation. There being no support for the claim that the dismissal in this case was an abuse of discretion, the order of the Appellate Division must be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.40), order affirmed in a memorandum.


text:
    In the Matter of Deborah C. Burse, Also Known as Debra Burse, Appellant, v William H. Bristol, as Judge of the Monroe County Court, et al., Respondents. In the Matter of Raul Torres, Jr., Appellant, v Nancy E. Smith, as Judge of the Monroe County Court, et al., Respondents.
    Submitted April 25, 1994;
    decided June 30, 1994
   Motion in each proceeding for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion in each proceeding for poor person relief dismissed as academic.


text:
    In the Matter of George A. Groht, Appellant, v Thomas Sobol, as Commissioner of Education of the State of New York, Respondent.
    Submitted May 2,1994;
    decided June 30,1994
   Judge Levine taking no part.


text:
    In the Matter of Dwight Hendy, Appellant, v David Stadtmauer, as Justice of the Supreme Court, Bronx County, et al., Respondents.
    Submitted April 25, 1994;
    decided June 30, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which denied petitioner’s discovery motion, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for other relief denied.


text:
    In the Matter of Harendra Mehta et al., Appellants, v Mukesh Mehta et al., Respondents.
    Submitted April 25, 1994;
    decided June 30, 1994
   Motion by petitioners for leave to appeal from the Appellate Division order that affirmed the Supreme Court judgment confirming the arbitration award denied. Motions by petitioners for leave to appeal from the Appellate Division order that affirmed Supreme Court’s order, in part, requiring petitioners to execute personal guarantees, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution.


text:
    101 Fleet Place Associates, Appellant, v New York Telephone Company, Respondent, et al., Defendants.
    Submitted June 13, 1994;
    decided June 30, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of A. Holly Patterson SNF et al., Appellants, v Mark R. Chassin, as Commissioner of the New York State Department of Health, et al., Respondents.
    Submitted May 2, 1994;
    decided June 30, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Kenneth Slaybough, Respondent, v Nathan Littauer Hospital, Appellant, and Thomas S. Eagan, Respondent.
    Submitted April 25, 1994;
    dated June 30, 1994
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying defendant hospital’s postjudgment motion to set aside the verdict, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [639 NE2d 1122, 616 NYS2d 325]
    Lynn Weiss, Individually and as Administratrix of the Estate of William G. Weiss, Deceased, and as Mother and Natural Guardian of William Weiss and Others, Infants, Appellant, v Francis Manfredi et al., Respondents.
    Argued June 9, 1994;
    decided June 30, 1994

      APPEARANCES OF COUNSEL

      Sullivan & Liapakis, P. C., New York City (Cheryl Eisberg Moin, Pamela Anagnos Liapakis and Howard M. Goldstein of counsel), for appellant.

      Bergadano, Zichello & Babchik, New York City (Jack Babchik and Jeffrey C. Seymour of counsel), for Francis Manfredi and another, respondents.

      Deegan & Scibilia, Hempstead (Marian C. Rice of counsel), for Joseph C. Bondi and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, in accordance with the memorandum herein, and, as modified, affirmed.

William Weiss died on June 14, 1979 as a result of injuries sustained in a fall from a ladder while waterproofing the roof of an apartment building in Manhattan. On September 14, 1979, decedent’s widow, plaintiff Lynn Weiss, retained defendant Manfredi & Bondi who, on her behalf, commenced in Supreme Court, Nassau County, an action for wrongful death against the premises owner, who impleaded decedent’s employer. The law firm also represented plaintiff in obtaining general letters of administration and, on April 29, 1981, settled the wrongful death action, with court approval, for $300,000. Plaintiff received her share of the settlement proceeds, less a one-third contingency fee, on June 8, 1981. Through at least November 21, 1985, defendant Manfredi continued to represent plaintiff in connection with her workers’ compensation claim.

After retaining new counsel, in July 1987 plaintiff moved to vacate the Nassau County settlement for inadequacy and failure to comply with the EPTL, alleging that the trial court should have awarded limited (not general) letters of administration in recognition of the interests of decedent’s three minor children, which would have precluded plaintiff from settling on behalf of the children. Supreme Court denied the motion, concluding that the court, misled by plaintiffs petition declaring that she was the sole interested party, had found the settlement adequate in light of the facts known at the time. The Appellate Division affirmed Supreme Court’s order (150 AD2d 678).

On April 28, 1987, plaintiff commenced this action against defendant attorneys in Supreme Court, New York County, seeking damages for legal malpractice and fraud in connection with the Nassau County settlement. Supreme Court dismissed the complaint, concluding that plaintiff was collaterally es-topped from challenging the adequacy of the settlement on the ground that the settlement had been found adequate in the Nassau County action, precluding a finding of legal malpractice against plaintiffs attorneys. The Appellate Division affirmed, and this Court granted leave to appeal.

At issue is application of the settled doctrine of collateral estoppel, which bars a party from relitigating in a subsequent proceeding an issue clearly raised in a prior proceeding and decided against that party where the party to be precluded had a full and fair opportunity to contest the prior determination (see, D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Ryan v New York Tel. Co., 62 NY2d 494, 500-501). "What is controlling is the identity of the issue which has necessarily been decided in the prior action or proceeding” (Ryan v New York Tel. Co., 62 NY2d, at 500, supra). That doctrine was erroneously applied here.

In the prior action to vacate the settlement, the sole issue necessarily decided was that — as between plaintiff and the settling defendants (the premises owner and decedent’s employer) — there was no fraud, collusion, mistake or accident to vitiate the settlement (see, Hallock v State of New York, 64 NY2d 224, 230). At issue in the current action for legal malpractice, by contrast, is whether defendant attorneys were negligent in their representation of plaintiff. Because there is no identity of issue, plaintiff is not collaterally estopped in this action. Moreover, as neither the adequacy of the settlement nor plaintiffs role in prosecuting the action was in issue in the first action, the findings that the previous court was "satisfied with the amount of the settlement” and that "[pjlaintiff, herself, created the situation which caused the misunderstanding in relation to her ability to settle the action for her children” are not entitled to preclusive effect.

We reject defendants’ alternative claim that this action is untimely, as it was commenced within three years of November 21, 1985, until which time there is at least a question of fact as to whether defendants continued to represent plaintiff in connection with this matter (see, CPLR 214 [6]; Santulli v Englert, Reilly & McHugh 78 NY2d 700, 707-709; Glamm v Allen, 57 NY2d 87, 93-94). Finally, we agree with the conclusions of the courts below that plaintiff failed to demonstrate privity of contract between her minor children and defendant attorneys, warranting dismissal of their legal malpractice claims (see, Prudential Ins. Co. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382-385, rearg denied 81 NY2d 955), and that plaintiff failed to allege an attorney-client relationship between herself and defendants Iovino and Bondi & Iovino sufficient to raise a triable issue of fact, warranting dismissal of the complaint as against them. Plaintiff’s fraud claim was properly dismissed, as an attorney’s failure to disclose malpractice does not give rise to a fraud claim separate from the customary malpractice action (see, Simcuski v Saeli, 44 NY2d 442, 451-452).

Chief Judge Kaye and Judges Simons, Titone, Bet.t.acosa, Smith, Levine and Ciparick concur in memorandum.

Order modified, etc.

       No appeal was taken from Supreme Court’s dismissal of the complaint as against the premises owner, decedent’s employer and their insurers, originally named defendants.