author: Simons, J.

text:
    John W. Cowper Company, Incorporated, Respondent, v Buffalo Hotel Development Venture et al., Appellants, and Spancrete Northeast, Inc., Respondent, et al., Defendants. (And Related Actions.)
    Argued April 26, 1988;
    decided July 12, 1988

      APPEARANCES OF COUNSEL

      Joseph Alioto and Patricia Henle, pro hoc vice, and James I. Myers for appellant.

      Frank T. Gaglione and Lawrence A. Schulz for John W. Cowper Company, Incorporated, respondent.

      David D. MacKnight, Peter T. Rodgers and Mindy L. Zoghlin for Spancrete Northeast, Inc., respondent.

      Norman A. Coplan and James Siena for American Institute of Architects and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

This case involves a dispute between plaintiff general contractor and defendants, the owners of the Buffalo Hilton Hotel, with respect to the responsibility for construction defects in the hotel. Defendants contend that the trial court erred in charging the jury that the architect and his structural engineer were subject to certain inspection requirements contained in the Buffalo Building Code and in reading those provisions to the jury during deliberations. Further, defendants contend that the trial court erred by ruling that the architect and the structural engineer were solely responsible for the design of the concrete mix used in the construction of the hotel garage. Defendants claim that these alleged errors added to the responsibilities of the architect, who, under the parties’ contract, is defendants’ agent and responsible for design, and reduced the responsibility of plaintiff, who, under the contract is responsible for materials and workmanship.

The trial court explicitly charged the jury that plaintiff bore the responsibility for materials and workmanship, and that the architect bore the responsibility for construction design. The court further explained that the failure of the architect or the structural engineer to properly perform their inspection duties did not relieve the contractor of its obligations, as follows: “The failure of the architect or his agent to properly inspect does not relieve the contractor from any responsibility for defects caused by the improper workmanship of either the contractor or its subcontractors. However, in determining the damages which may flow from such a defect, you may consider whether any failure of the architect or agent to properly inspect contributed to or added to the damages and exclude such addition or contribution from damages for which you hold the contractor liable.”

The charge required the jury to make a threshold determination whether construction defects resulted from the contractor’s poor workmanship. Only if the jury concluded that the defects resulted from inferior workmanship could it then determine whether the “damages” attributable to the contractor should be reduced based on the architect’s failure to properly perform his inspection duties.

Here, the record indicates that the jury never considered that issue. One of the interrogatories contained in the verdict sheet was whether "the delamination (lack of bonding) in the second floor of the garage [was] due in whole or in part to improper workmanship or materials by John W. Cowper Company or its subcontractors”. The jury answered this question in the negative. Based on the court’s charge, once the jury made this finding, it had no occasion to determine whether the architect and the structural engineer failed to properly perform their inspection duties. There were no "damages” attributable to the contractor which could be reduced based on any alleged failure by the architect or structural engineer in the performance of their duties. Therefore, contrary to the view expressed by the dissent, any error with respect to the charging of additional inspection duties did not affect the verdict.

The trial court’s ruling that the architect was solely responsible for the design of the concrete mix did not preclude defendants from presenting evidence that the failure of the concrete topping to bond to the planks used in the construction of the hotel garage was caused by inferior materials or workmanship. Furthermore, the structural engineer changed the design of the concrete mix during construction. This evidence indicates that the contractor was dependent on the architect and the structural engineer for the design requirements of the concrete mix. Since the jury found that the defects in construction did not result from poor materials and workmanship, the ruling, even if erroneous, did not contribute to the verdict.

Defendants’ contention that General Condition 9.9.2 of the parties’ contract, requiring that plaintiff completely pay off its subcontractors before it can receive final payment from the owner was not satisfied in this case, is without merit. This action encompasses claims for various progress payments which plaintiff contends defendants never paid. Therefore, the condition precedent does not apply in this case. Our analysis and result in this case should in no way be read or understood to affect or undermine the ordinary and accepted interpretation or legal relationship between contracting parties under the standard form American Institute of Architects contract.

We have considered defendants’ other contentions and find them to be without merit.

Simons, J.

(dissenting). There should be a reversal and a new trial because of the trial court’s errors in construing the contract between the parties and permitting the jury to apply the provisions of the Buffalo Building Code to alter their duties and responsibilities to each other. The majority agrees error was committed by reading the provisions of the code but finds it to be harmless. I do not.

This action involves a suit by a contractor against an owner for failing to pay for construction work on a parking garage that was admittedly defective — defective because the concrete topping applied to the parking surfaces failed to bond. In responding to the owner’s defense of nonperformance, the contractor took two positions: (1) the concrete mix used to finish the garage was approved by the owner/architect and (2) even if it had used an improper concrete mix — one other than the mix approved by the architect — the architect had a duty to check up on the contractor and discover that the mix was different from the approved mix.

During trial, the court held that the architect was responsible for approving the ingredients in the design mix of the concrete as a matter of law. This belief apparently was induced either by an erroneous interpretation of the agreement between the owner and the contractor or by the court’s error in expanding the duties of the architect by reference to the Buffalo Building Code. The ruling, on either ground, was error and the judgment should not stand.

The duties of the owner, and the architect acting on his behalf, were spelled out in the standard American Institute of Architects contract executed by the parties. Under the contract, the architect’s obligation to the owner was to visit the jobsite periodically to insure that the work was progressing in accordance with the contract documents, to keep the owner informed and to guard against defects and deficiencies in the work. The architect was not responsible for and had no control over the means, methods, techniques, sequences or procedures of construction. He could reject work not conforming with the contract documents but his failure to exercise this authority did not alter the responsibilities of the contractor. The architect was required to review and approve the contractor’s shop drawings, product data and samples "but only for conformance with the design concept of the Work and with the information given in the Contract Documents”.

Under the agreement the contractor was solely responsible for all construction and he was not relieved of his obligation to perform the work according to the contract documents either by the activities of the architect in administering the contract or by inspection tests or approvals required or performed. The contractor also had the obligation, after reviewing the architect’s plans and specifications, to submit shop drawings, product data and samples and obtain the architect’s approval of them before proceeding with the work. The contract provided, however, that approval by the architect would not relieve the contractor from complying with the specifications unless the architect had been informed in writing of the deviation and approved it. More importantly, the contract provided that the "[c]ontractor shall not be relieved from responsibility for errors or omissions in the Shop Drawings, Product Data or Samples by the Architect’s approval thereof’.

The natural conclusion from a review of these standard contract provisions is that architects work for owners — the only party with whom they contract — to ensure that the plans and specifications as drawn are met. The architect has the duty to "inspect” and "approve” the shop drawings, product data and samples submitted by the contractor, but nothing he does or does not do changes the duties owed by the contractor to the owner or imposes a duty on the architect in favor of the contractor which relieves the contractor from the responsibility for errors or omissions contained in the shop drawings, product data or samples.

Notwithstanding these provisions, a major dispute developed in this case about the legal effect of the architect’s "approval” of the concrete mixes. Under the contract provisions, the architect was required to supply the contractor with the specifications for the strength of the concrete and it did so. In fact the architect changed this specification, once during the work, as the majority note (see, majority mem, at 893). However, the "design mix” — the ingredients or recipe necessary to reach the desired strength — was not part of the architect’s specifications. Instead, as all parties concede, the ingredients or recipe for the mix was prepared by a subcontractor, an agent of the contractor. These design mixes were then "inspected” and "approved” by the architect. The trial court ruled as a matter of law that by approving these design mixes, the architect assumed legal responsibility for their ability to properly bond and its ruling drastically reduced the contractor’s exposure to liability. The court relied on section 2.2.14 of the contract which requires the architect to "review and approve or take other appropriate action upon contractor’s submittals such as Shop Drawings, Project Data and Samples”.

It is apparent from the testimony in the record that there is no fixed meaning to "approval” as used in this section and the court’s construction of it conflicted with the plain language of other parts of the contract (particularly § 4.12.6). Moreover, various witnesses interpreted the language of the contract differently, testifying that approval connoted only that the sample was strong enough for the job assigned. Defendant offered to prove that approval did not constitute approval of the ingredients but the court denied its offer. At best, it would seem that there was a question of fact on the meaning of the contract language which had to be resolved before plaintiff could establish its case, i.e., before the contractor could be excused from performance and blame assigned to the architect for approving a mix that would not bond.

But further than that, plaintiff’s attorney introduced chapter 12, § 1.3.1 of the Buffalo Building Code into the trial. That provision provides: "Inspection: Concrete work on site shall be inspected by the engineer or architect responsible for its design or by a competent representative responsible to him, who shall keep a record and shall cover the quality and quantity of concrete materials, the mixing, placing and curing of the concrete, the placing of the reenforcing steel, the sequence of erection and connection of precast members and general progress of the work.” (Emphasis added.) This provision imposes on the architect a continuing duty of supervision not found in the contract. Nevertheless, the court permitted counsel to read from the code and refer to provisions of it during the trial and it charged the jury on its requirements. Indeed, after deliberating, the jury returned and asked the court for further instructions on the contract and the code and the court read two applicable code sections, including chapter 12, § 1.3.1 set forth above. This permitted the jury to impose a burden on the architect, beyond any possible interpretation of the contract, which would excuse the contractor’s defective performance.

And there was evidence to justify them in doing just that. Consider, for example, this exchange between plaintiff’s expert and counsel for the owner.

"Q. Isn’t it your belief that allowing the installation of concrete with excessive recorded violations of approved mix proportions played a significant role in the unbonding of the concrete?
"A. Yes, that’s what I stated.
"Q. Whose responsibility is it to see that the concrete actually installed conformed to approved mix proportions?
"A. It’s the engineer’s [architect’s] responsibility.
"Q. The engineer’s [architect’s] responsibility?
"A. Yes, it’s so stated in the Buffalo Building Code [ch 12, § 1.3.1].”

Manifestly, the court by ruling as a matter of law that the code applied and submitting an erroneous interpretation of the contract including it, imposed a higher duty on the architect, acting on behalf of the owner, and permitted the jury to exonerate plaintiff for defects caused by the mix which it was the contractor’s duty to correct. The error was not rendered harmless by general language in the instructions, unrelated to this issue, on the general allocation of duties. Notwithstanding the jury’s answers to the interrogatories, these errors of law were substantial and necessarily infected the jury’s findings and verdict. Accordingly, I would reverse the judgment and Appellate Division order brought up for review, and grant a new trial.

Chief Judge Wachtler and Judges Kaye, Alexander, Titone and Bellacosa concur; Judge Simons dissents and votes to reverse in an opinion; Judge Hancock, Jr., taking no part.

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

       Defendant Chen was the owner and the architect and had retained a structural engineer. The terms owner, architect and engineer were used interchangeably to identify the architect’s responsibilities.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Twin State CCS Corporation, Appellant, v Lillian Roberts, as Commissioner of Labor of the State of New York, Respondent.
    Argued May 27, 1988;
    decided July 12, 1988

      APPEARANCES OF COUNSEL

      Keith J. Roland and Emilio A. F. Petroccione for appellant.

      Robert Abrams, Attorney-General (M. Patricia Smith, O. Peter Sherwood and Jane Lauer Barker of counsel), for respondent.

      Richard L. O’Hara and Edward J. Groarke for New York State AFL-CIO and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

The judgment should be reversed, with costs, and the matter remitted to the Appellate Division, Third Department, for determination of issues not passed upon by that court.

Petitioner, who installed a telecommunications system in the Clinton County Government Center, seeks review of a determination that it failed to pay prevailing wages to nine of its telephone installers pursuant to Labor Law § 220 (3). The determination was made after a compliance hearing required by Labor Law § 220 (8).

The Appellate Division concluded that the failure to annex the "prevailing rate schedule” (PRS) to the specifications for the work was not improper, since the omission was corrected when petitioner was provided with, and acknowledged receipt of, the PRS during July of 1984. The court further held that the project at issue was a "public work” to which Labor Law § 220 (3) applies. Finally, the court found that the PRS placed petitioner on notice that respondent considered its telephone installers to be "electricians”. As a result, the proceeding, insofar as it challenged the classification of those employees as "electricians” and directed petitioner to pay them prevailing wages, was time barred, because it failed to raise any objection to the PRS within four months of its receipt.

We agree with the Appellate Division that the failure to annex the PRS to the work specifications did not relieve petitioner of its obligation to pay prevailing wages. Furthermore, we agree that the project constituted a "public work”. In determining whether a particular project constitutes a "public work”, the inquiry focuses on "the purpose or function of the project” (Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532, 538, affd 63 NY2d 810). Here, the project, the installation of a telecommunications system which required a degree of construction-like labor, was installed in a public building for use by public employees. Therefore, the installation of the telecommunications system was a "public work” within the meaning of Labor Law § 220 (3).

However, we disagree that the challenge to the classification of petitioner’s employees as "electricians”, and to the order to pay those employees prevailing wages, was time barred. CPLR 217 provides that "a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner”. While the PRS indicated that telephone installers were classified as electricians, the classification did not become effective as to petitioner’s employees, nor was petitioner aggrieved by the classification, until respondent issued its determination (see, Matter of Martin v Ronan, 44 NY2d 374; Matter of O’Neill v Schechter, 5 NY2d 548, 554; Matter of Abramson v Commissioner of Educ., 1 AD2d 366, 371; see also, 8 Weinstein-Korn-Miller, NY Civ Prac ¶ 7804.02, at 78-103). The determination was not final and binding, and the Statute of Limitations did not begin to run, until the determination was issued in November 1985. Since petitioner sought review of the Commissioner’s order within 30 days of its filing (see, Labor Law §220 [8]), the challenge to the classification was not time barred.

The cases relied on by the Appellate Division (A. J. Cerasaro, Inc. v Ross, 94 AD2d 943, affd 60 NY2d 946; Matter of Schultz Constr. v Ross, 76 AD2d 151, 155, affd 53 NY2d 792), are distinguishable. Those cases involved redeterminations of prevailing wage rates, for which no hearing was required. The redeterminations were final and binding, and aggrieved the petitioners, who failed to commence article 78 proceedings within the four-month limitations period.

Since the Appellate Division failed to pass on the issues raised by petitioner with respect to the classification of its employees as electricians, we remit the matter to that court for a determination of those issues.

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

Judgment reversed, with costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.


author: Alexander, J.

text:
    In the Matter of Hull-Hazard, Inc., et al., Respondents-Appellants, v Lillian Roberts, as Commissioner of Labor of the State of New York, Appellant-Respondent, and Upstate New York Council of Operating Engineers, Intervenor-Appellant-Respondent.
    Argued June 2, 1988;
    decided July 12, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Jane Lauer Barker, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant-respondent.

      LaVerne F. O’Dell for respondents-appellants.

      Donald D. Oliver for intervenor-appellant-respondent.
   OPINION OF THE COURT

Judgment affirmed, without costs, for the reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (129 AD2d 348). We find especially persuasive the absence of any language in Labor Law § 220-b (3) (b) authorizing the extension of liability for penalties and possible debarment to successor corporations (cf., Public Authorities Law §§ 2601, 2602; General Municipal Law §§ 103-a, 103-b; State Finance Law §§ 139-a, 139-b).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa. Judge Alexander concurs in part and dissents in part and votes to modify in an opinion.

Alexander, J.

(concurring in part and dissenting in part). Although I join the majority to affirm the Appellate Division judgment insofar as it confirmed the determination of respondent, Commissioner of Labor, finding violations of the overtime pay and prevailing wage provisions of the Labor Law, I cannot agree that liability was improperly imposed upon Hull Corporation. In my view, the imposition of joint liability on petitioners Hull-Hazard, Inc. (Hull-Hazard) and Hull Corporation (Hull Corp) is amply supported by evidence in the record, and should be upheld as a reasonable application of the Labor Law by the agency specifically charged with the responsibility of administering the statute (see, Matter of Colt Indus. v New York City Dept. of Fin., 66 NY2d 466, 471; Matter of Howard v Wyman, 28 NY2d 434, 438).

The record evidence establishes that Hull-Hazard, created as a highway and building construction business in 1967, was owned by the Hazull Corporation which, in turn, was owned by, among others, Robert Hazard and John Hull — the founders of Hull-Hazard. In 1983 — the year that Hull-Hazard contracted with the Department of Transportation to perform the work at issue here, involving the painting and rehabilitation of bridges along Interstate Route 81 — the two men decided to pursue different business ventures, with Hazard leaving to form a separate corporation specializing in real estate development and commercial building construction. Hull-Hazard stopped bidding on public contracts, but it continued to perform on contracts already granted to it throughout 1984, the period during which the subject violations occurred. Hull remained in the highway construction business and, in March 1984, while Hull-Hazard was performing the 1-81 construction project, he formed Hull Corp.

Fifty percent of Hull Corp’s stock is owned by Hull and his son, with the remaining 50% owned by Steven Infanti, who had been president of Hull-Hazard. Infanti immediately became the president of the new Hull Corp, and continued to function as president of Hull-Hazard throughout 1984. Hull, who had been a former president of Hull-Hazard, as well as treasurer and chairman of the board of that corporation, became chairman of the board of Hull Corp. According to his testimony, Hull also acted as project manager of the 1-81 project, assuming ultimate responsibility for the work performed. Infanti also was responsible for the 1-81 project in his dual capacity as president of both Hull-Hazard and Hull Corp. As found by the Hearing Officer, Hull Corp adopted the overtime policy of Hull-Hazard, and a majority of the administrative and salaried employees of the former were also employees of the latter. Additionally, 19 of the 25 top managerial employees of Hull Corp held the same or similar positions with Hull-Hazard. Even the health and pension plans of the two corporations were identical, and were developed by Hull-Hazard with the assistance of accountants and attorneys retained by that corporation. It further appears that the availability of Hull-Hazard’s employees and resources enabled Hull Corp to bid on public contracts even prior to the company’s formation, and there was evidence that Hull Corp relied on Hull-Hazard’s 17 years of experience as a contractor in the heavy construction field in securing construction work.

Based on this overwhelming evidence demonstrating the "corporate identity” of Hull-Hazard and Hull Corp, respondent held the two corporations jointly liable for violations of the overtime pay and prevailing wage provisions of the Labor Law (Labor Law § 220 [2], [3]). The Appellate Division, however, annulled this aspect of the Commissioner’s determination. Construing the bidding prohibition of Labor Law § 220-b (3) (b) — barring a "person or corporation” from bidding on public work contracts if found to have willfully failed to pay prevailing wages and supplements on two occasions within a consecutive six-year period — the court concluded that the statute does not permit imposition of liability on a successor corporation where there has been more than just a change in the name of the corporation or a minor change in ownership. The Appellate Division held that, inasmuch as Infanti, as a 50% owner of successor Hull Corp, had no ownership interest in Hull-Hazard, the imposition of joint liability was not authorized by the statute. The majority adopts this conclusion as a correct construction of the Labor Law. I respectfully disagree and accordingly, dissent.

The fact that the remedial provisions of Labor Law § 220 are directed at the "person or corporation” that committed the particular violation does not foreclose imposing liability on a successor corporation where the evidence demonstrates the completely interlocking relationship between the two entities. Indeed, enforcement provisions — such as the bidding prohibition provision discussed by the Appellate Division— that refer to a corporation’s past employment practices in fixing a particular penalty would be seriously weakened if a superficial change in corporate identity were permitted to shield a successor corporation from liability (see also, Labor Law § 220 [8]; § 220-b [2]). We have acknowledged that the corporate form sometimes may be disregarded where it is necessary to achieve equity, or where it "is essential to the end that some accepted public policy may be defended or upheld” (Berkey v Third Ave. Ry. Co., 244 NY 84, 95 [Cardozo, Ch. J.]; see, Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 163). The provisions of Labor Law § 220 are broadly remedial in nature, reflecting "an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen and mechanics” (Austin v City of New York, 258 NY 113, 117 [Cardozo, Ch. J.]). Indeed, we have repeatedly held that the statute must be "construed with the liberality needed to carry out its beneficent purposes” (Bucci v Village of Port Chester, 22 NY2d 195, 201; Matter of Gaston v Taylor, 274 NY 359, 364; Austin v City of New York, 258 NY 113, 117, supra). Moreover, the Commissioner of Labor is given broad authority to enforce the provisions of the Labor Law and "may issue such orders as [she] finds necessary directing compliance with any provision” (Labor Law § 21 [1]). In light of the protective nature of the legislation, and the expansive authority conferred upon the Commissioner, the mere corporate reshuffling between Hull-Hazard and Hull Corp should not be permitted to impede enforcement of the statute.

As pointed out above, there is an abundance of evidence in the record demonstrating the extremely close connection between the two corporations: Hull Corp converted staff and resources of Hull-Hazard to its own use and benefit; Hull Corp relied upon the corporate reputation it developed as Hull-Hazard; Hull Corp’s pension and health and welfare plans were developed and paid for by Hull-Hazard; Hull Corp’s overtime policy was identical to that of Hull-Hazard; and both corporations shared corporate officers and counsel. Additionally, the two major shareholders of Hull Corp, Hull and Infanti, were responsible for establishing the employment policy of Hull-Hazard and overseeing the 1-81 construction project — Hull, in his capacity as project manager and part owner of Hull-Hazard, and Infanti, in his capacity as Hull-Hazard’s president. The fact that Infanti did not have any ownership interest in Hull-Hazard is not determinative since he clearly was in a position to know about the subject violations, and he admitted responsibility for the project. In these circumstances, the imposition of joint liability cannot be said to be arbitrary or irrational; rather, it must be viewed as a reasonable application of the statute to the evidence adduced at the hearing.

In adopting the reasoning of the Appellate Division, the majority apparently concedes that "if a corporation simply changed its name or made minor changes in its ownership, such action could not be allowed to frustrate” the statute’s remedial provisions (Matter of Hull-Hazard v Roberts, 129 AD2d 348, 353). Clearly, the same should be true where, as here, a successor corporation so interlocks with its predecessor that they are, for all relevant purposes, the same corporate entity (cf., Golden State Bottling Co. v National Labor Relations Bd., 414 US 168 [upholding imposition of successor liability for unfair labor practice under section 10 (c) of the National Labor Relations Act (29 USC § 160 [c])]). Accordingly, I would reverse so much of the Appellate Division judgment as annulled the Commissioner’s determination holding Hull-Hazard and Hull Corp jointly liable.

Judgment affirmed, etc.


text:
    In the Matter of Gene Crescenzi, a Suspended Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted June 13, 1988;
    decided July 12, 1988
   Motion to dismiss appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the grounds that (1) insofar as it is from that portion of the Appellate Division order granting petitioner’s motion to hold respondent in contempt the order does not finally determine the proceeding within the meaning of the Constitution, and (2) insofar as it is from that portion of the Appellate Division order granting petitioner’s motion to disbar respondent no substantial constitutional question is directly involved. Cross motion for a stay dismissed as academic.


text:
    In the Matter of Gene Crescenzi, a Suspended Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Decided July 12, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from denying a motion for reargument and reconsideration does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Howard Eisenberg, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Decided July 12, 1988
   Appeal from order entered January 12, 1988 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved. Appeal from order dated February 11, 1988 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Julio Giano, Appellant, v James Sullivan, as Superintendent of Sing Sing Correctional Facility, Respondent.
    Submitted April 18, 1988;
    decided July 12, 1988
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous Appellate Division order absent the direct involvement of a substantial constitutional question (CPLR 5601 [a]). Motion for poor person relief dismissed as academic.


text:
    McCaskey, Davies and Associates, Inc., Appellant, v New York City Health & Hospitals Corporation, Respondent.
    Submitted May 31, 1988;
    decided July 12, 1988
   On the court’s own motion, appeal taken as of right dismissed, without costs, as untimely (see, CPLR 321 [a]; 5513 [a]; 5514 [a]). Motion for leave to appeal dismissed as untimely.


text:
    Martin J. Sawma, Appellant, v State of New York et al., Respondents.
    Submitted May 16, 1988;
    decided July 12, 1988
   Motion insofar as it seeks leave to appeal from the Appellate Division order dated March 30, 1988 denying reargument dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion insofar as it seeks leave to appeal from the Appellate Division order dated January 29, 1988 dismissed as untimely. Motion for poor person relief dismissed as academic.


text:
    Ruth Shragai, Respondent, v Yehuda Shragai, Appellant.
    Submitted June 20, 1988;
    decided July 12, 1988
   Motion for reconsideration of April 26, 1988 dismissal of appeal denied. Motion for leave to appeal denied. Motion for a stay pending defendant’s application to the United States Supreme Court for a writ of certiorari dismissed upon the ground that that relief may not be granted by this court. (See, 28 USC § 2101 [f].) [See, 71 NY2d 949.]


text:
    In the Matter of Joseph C. Catucci, Respondent, v Ferdinand C. Marchi et al., Constituting the Board of Elections of the City of New York, Respondents, and Carmen Barreto, Appellant. (And Another Action.)
    Submitted August 31, 1988;
    decided August 31, 1988
   Motion for leave to appeal denied. Cross motion for leave to appeal dismissed upon the ground that cross movant is not a party aggrieved.


text:
    Patrick L. Lucariello et al., Appellants, v Terry Niebel et al., Constituting the Chautauqua County Board of Elections, et al., Respondents.
    Argued August 31, 1988;
    decided September 2, 1988
    APPEARANCES OF COUNSEL

      Michael B. Bluth for appellants.

      James E. Westman for Christopher D. Penfold and others, respondents.

      Robert M. Laughlin, County Attorney (Andrew W. Goodell of counsel), for Terry Niebel and others, constituting the Chautauqua County Board of Elections, respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioners challenge the nominating petitions designating respondents as candidates for Conservative Party Committee-persons in Chautauqua County. Petitioner objectors resided in the same Assembly District as the 246 challenged candidates, but in the same election district as only two of the 246. Supreme Court and the Appellate Division both concluded that petitioners lacked standing to challenge the petitions of candidates in election districts where they were not voters "enrolled to vote for such party position” (Election Law § 6-154 [2]). We agree that, for this reason, the petitions were correctly dismissed as to all respondents except the two in election districts where petitioners were enrolled to vote.

Against a backdrop of litigation concerning the issue of standing (see, e.g., Matter of Gaines v Board of Elections, 32 AD2d 797, affd 25 NY2d 807; Matter of Vaccaro v Lawley, 28 AD2d 809, affd 20 NY2d 653; Matter of Bergner v Meisser, 10 NY2d 787; Matter of Mahoney v Lawley, 301 NY 425), in 1978 the Legislature amended the Election Law. Until December 1, 1978, Election Law § 6-154 (2) did not limit the persons who might object. Effective December 1, 1978, however, the Legislature specified that written objections to a designating petition for a party position might be filed "by any voter enrolled to vote for such party position” (Election Law § 6-154 [2] [emphasis added]). Although no explanation for this particular amendment is offered in the legislative history, we can only conclude that the addition of the plain language of limitation implemented a legislative purpose to lay to rest any doubt regarding the requirement that objectors to petitions for party positions be persons enrolled to vote for those positions.

If there is indeed undue burden in such a requirement, as suggested, redress obviously lies with the Legislature and not the courts obliged to apply the statute as it has clearly been written.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of David Lansner et al., Respondents, v Board of Elections of the City of New York et al., Appellants.
    Argued August 31, 1988;
    decided September 2, 1988
    APPEARANCES OF COUNSEL

      Robert Allan Muir, Jr., for appellants.

      Paul H. Asofsky for respondents.
   OPINION OF THE COURT

Memorandum.

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

Contrary to respondents’ contention, the proceeding to validate petitioners’ designations as County Committeepersons was not brought by Lansner in a representative capacity. Rather, it was commenced by the candidates in their individual capacities as petitioners. Moreover, the petition was properly verified solely by Lansner since, in this case, the petitioners were "united in interest” (CPLR 3020 [d]; see, Matter of Castillo v Maclara, 63 NY2d 682, 683). Respondents’ remaining arguments are unpreserved or without merit.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Eleanor Collins et al., Appellants, v Ferdinand Marchi et al., Constituting the Board of Elections of the City of New York, et al., Respondents. (And Related Proceedings.)
    Argued August 31, 1988;
    decided September 2, 1988

      APPEARANCES OF COUNSEL

      Paul A. Victor for appellants.

      Lorraine Coyle for respondents.
   OPINION OF THE COURT

Order reversed, without costs, and (a) petitions seeking validation with respect to the candidates as to whom objectors before the Board were not qualified to file objections under section 6-154 (2) of the Election Law reinstated and granted; (b) petitions seeking validation with respect to the candidates as to whom objectors before the Board were qualified to file objections under section 6-154 (2) reinstated and remitted to Supreme Court, Bronx County, for determination on the merits (see, Lucariello v Niebel, 72 NY2d 927 [decided today]; Matter of Lansner v Board of Elections, 72 NY2d 929 [decided today]).

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


text:
    The People of the State of New York, Respondent, v Michael Headley, Appellant.
    Submitted July 11, 1988;
    decided September 8, 1988
   On the court’s own motion, appeal dismissed upon the ground that defendant is not presently available to obey the mandate of the Court of Appeals in the event of an affirmance (see, People v Jiminez, 71 NY2d 963; People v Burger, 70 NY2d 828; Matter of Robert E., 68 NY2d 980; People v Sullivan, 28 NY2d 900; People v Del Rio, 14 NY2d 165; People v Genet, 59 NY 80). Motion for assignment of counsel dismissed as academic.


text:
    In the Matter of Steven C. Martin, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, et al., Respondents.
    Submitted June 6, 1988;
    decided September 8, 1988
   On the court’s own motion, appeal from March 7, 1988 judgment of Supreme Court transferred to the Appellate Division, Fourth Department, without costs, upon the ground that a direct appeal does not lie where 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]); appeal from June 6, 1988 order of Supreme Court denying reargument dismissed, without costs, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Alfred D. Miller, Appellant, v Hills Department Store, Respondent.
    Submitted May 31, 1988;
    decided September 8, 1988
   On the court’s own motion, appeal taken as of right from Appellate Division order entered December 18, 1987 dismissed upon the ground that it does not finally determine the action within the meaning of the Constitution, and appeal taken as of right from Appellate Division order entered July 7, 1987 dismissed upon the ground that it does not lie as of right absent a two-Justice dissent or the direct involvement of a substantial constitutional question. Motion for leave to appeal from Appellate Division order entered December 18, 1987 dismissed upon the ground that it does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal from Appellate Division order entered July 7, 1987 denied.


text:
    Rebecca Peart, Appellant, v Fort Tryon Nursing Home et al., Respondents.
    Submitted June 6, 1988;
    decided September 8, 1988
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying plaintiffs motion to amend her complaint, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v C. James Lombardi, Jr., Appellant.
    Submitted August 15, 1988;
    decided September 8, 1988
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from the order of the Appellate Division denying an application for a writ of error coram nobis (CPL 450.90).


text:
    The People of the State of New York, Respondent, v Henry Matthews, Appellant.
    Submitted July 11, 1988;
    decided September 8, 1988
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from the order of one Justice of the Appellate Division denying leave to appeal to that court.


text:
    Theodore Halkedis et al., Plaintiffs, v Two East End Avenue Apartment Corporation, Defendant and Third-Party Plaintiff-Appellant. Rockrose Development Corp., Third-Party Defendant-Respondent.
    Decided September 13, 1988

      APPEARANCES OF COUNSEL

      George Stiefel and Scott Claman for appellant.

      Linda C. Goldstein and Thomas H. Moreland for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (137 AD2d 452).

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


text:
    The People of the State of New York, Respondent, v Ronald M. Penoyer, Appellant.
    Decided September 13, 1988

      APPEARANCES OF COUNSEL

      Peter E. Smith for appellant.

      Neal P. Rose, District Attorney, 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 reasons stated in the opinion by Justice Paul J. Yesawich, Jr., at the Appellate Division (135 AD2d 42).

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


text:
    David Berg et al., Appellants, v Irving Dimson et al., Respondents, et al., Defendant.
    Submitted June 27, 1988;
    decided September 13, 1988
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Kushlin v Bialer, 26 NY2d 748).


text:
    Jay B. Birnbaum, Respondent-Appellant, v Saul I. Birnbaum, Appellant-Respondent. Ilene L. Flaum, Respondent-Appellant, et al., Plaintiff, v Saul I. Birnbaum, Appellant-Respondent, and Jay B. Birnbaum, Respondent-Appellant.
    Submitted June 6, 1988;
    decided September 13, 1988
   Motions to dismiss appeals denied.

Judges Hancock, Jr., and Bellacosa taking no part.


text:
    The People of the State of New York, Respondent, v Steven Catalanotte, Appellant.
    Submitted July 11, 1988;
    decided September 13, 1988
   Motion to extend the time for argument or submission of the appeal and to continue the stay granted and stay continued until determination of the appeal.


text:
    In the Matter of Jesse Halperin, Appellant, v Roderick G. W. Chu et al., Constituting the Tax Commission of the State of New York, Respondents.
    Submitted May 31, 1988;
    decided September 13, 1988
   Motion, insofar as petitioner seeks leave to appeal from that part of the Appellate Division order which affirmed the Supreme Court order of January 2, 1987 denying petitioner’s motion to vacate and renew, 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.


text:
    Kenford Company, Inc., Respondent-Appellant, v County of Erie et al., Appellants-Respondents.
    Submitted May 31, 1988;
    decided September 13, 1988
   Motion to dismiss defendants’ appeal from the March 4, 1988 order of the Appellate Division bringing up for review the prior nonfinal April 12, 1985 order of the Appellate Division denied. On the court’s own motion, plaintiffs appeal from the March 4, 1988 order of the Appellate Division dismissed, without costs, upon the ground that it does not lie as of right absent a two-Justice dissent at the Appellate Division in favor of plaintiff or the direct involvement of a substantial constitutional question (CPLR 5601 [a], [d]).

Judges Kaye and Hancock, Jr., taking no part.


text:
    In the Matter of James Williams, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent. In the Matter of James Williams, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Decided July 6, 1988

      APPEARANCES OF COUNSEL

      Edward L. Chassin and Norman P. Effman for appellant.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Mark R. Walling of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

Petitioner claims his parole revocation, based on the violation of one of his conditions of parole, is invalid because the conditions of parole were not filed with the Secretary of State pursuant to Executive Law § 102 and article IV, § 8 of the State Constitution. We disagree. Conditions of parole are not "rules” within the meaning of Executive Law § 102 and, therefore, they need not be filed to be effective. A rule establishes a general standard of conduct which must be obeyed by all those subject to its terms. Its force and authority stems from its enactment as law. The force and authority of a condition of parole, by contrast, is its incorporation in a particular individual’s parole agreement as one of the terms imposed by the Board.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), orders affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Leonis West, Appellant.
    Decided September 15, 1988
    APPEARANCES OF COUNSEL

      Andrew E. Abraham and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (Brian D. Foley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of murder, second degree, committed during the course of a street robbery. He contends on this appeal that there must be a reversal because the court erroneously admitted a codefendant’s statement at the trial and that its error in doing so was not harmless (see, Cruz v New York, 481 US 186).

Three eyewitnesses testified at the trial, each stating that four youths approached the victim while he was changing a tire, that two held the victim while the others attempted to rob him and that during the course of the robbery the victim was shot. The dying declaration of the victim was also received in evidence confirming this version of the incident.

Defendant gave two statements to police. He admitted that he was together with three others that night, that one of his companions had a gun, and that shortly before the robbery they observed the victim and approached to rob him. In his first statement, which he later recanted, he admitted that he took part in the robbery. In his second statement he changed his story to assert that he did not participate in the robbery but was standing three to four feet away from the victim when it occurred. However, he acknowledged that he was with the others, that he knew one of them had a gun, and that the group approached the victim intending to rob him.

In view of this strong evidence of guilt, the admission of a codefendant’s statement, consistent in all respects with defendant’s except that the codefendant claimed that he, not defendant, had remained a few feet away while the robbery and shooting occurred, was harmless beyond a reasonable doubt (see, People v Hamlin, 71 NY2d 750; cf., People v Pitts, 71 NY2d 923).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa 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:
    M. Michele Rechberger, Respondent, v Edward H. Rechberger, III, Appellant. (And Another Action.)
    Submitted June 6, 1988;
    decided September 15, 1988
   Motion for leave to appeal from the orders of the Appellate Division entered April 8, 1988, dismissed upon the ground that the orders, insofar as leave to appeal is sought, do not finally determine the action within the meaning of the Constitution.


text:
    Joseph Stello, Appellant, v Yellow Freight System, Inc., et al., Respondents.
    Submitted August 15, 1988;
    decided September 15, 1988
   Motion for reargument granted, July 6, 1988 order of dismissal vacated, and upon reargument motion for leave to appeal denied. [See, 72 NY2d 910.]


text:
    In the Matter of St. Joe Resources Company, a Division of St. Joe Minerals Corporation, Respondent, v New York State Tax Commission, Appellant.
    Decided September 20, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and John Q. Driscoll of counsel), for appellant.

      Sanders D. Heller 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), judgment reversed, with costs, and the determination of the State Tax Commission reinstated for the reasons stated in the dissenting opinion by Justice Paul J. Yesawich, Jr., at the Appellate Division (132 AD2d 98, 102-104).

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


text:
    Moshiko, Inc., et al., Appellants, v Seiger & Smith, Inc., et al., Respondents.
    Decided September 20, 1988

      APPEARANCES OF COUNSEL

      Kenneth P. Fremont for appellants.

      Arthur N. Brook for Insurance Company of the State of Pennsylvania, respondent.

      Duncan B. Hume for Seiger & Smith, Inc., and another, respondents.
    Leaselex Realty Corp., respondent, precluded.
   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 of the Appellate Division insofar as it granted summary judgment to defendant Insurance Company of the State of Pennsylvania affirmed, with costs, for the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (137 AD2d 170) addressing that portion of the litigation; appeal from so much of the order insofar as it denied plaintiffs’ motion for summary judgment against defendants Seiger & Smith, Inc., and Vasaka dismissed, without costs, upon the ground that that portion of the order does not finally determine the action between the affected parties within the meaning of the Constitution.

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


text:
    In the Matter of Donald Chusid et al., as Executors of Anne Chusid, Deceased, Respondents, v Benjamin H. Wright et al., Appellants.
    Decided September 20, 1988
   Appeals dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the orders appealed from do not finally determine the proceeding within the meaning of the Constitution; and upon the further ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Philip Dinitz, Appellant, v Bruce Sullivan, as Warden of the New York City Correctional Institution for Men, et al., Respondents.
    Decided September 20, 1988
   Appeal transferred to the Appellate Division, First Department, without costs, by the Court of Appeals sua sponte, 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 M [2]).


text:
    520 East 81st Street Associates, Appellant, v Lenox Hill Hospital et al., Respondents.
    Decided September 20, 1988
   Appeal transferred to the Appellate Division, First Department, without costs, by the Court of Appeals sua sponte, 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]) and upon the further ground that the order and judgment appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Harold W. Schwartz, Appellant, v New York City Transit Authority, Respondent.
    Submitted June 6, 1988;
    decided September 20, 1988
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed petitioner’s appeal from the May 7, 1987 order of Supreme Court and affirmed the June 24, 1987 order of Supreme Court, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Louis Schwartz, Respondent, v Turner Holdings, Inc., Appellant.
    Decided September 20, 1988
   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:
    The People of the State of New York, Respondent, v Anthony Di Fabio, Appellant.
    Argued September 6, 1988;
    decided September 22, 1988
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Respondent, v Nathan Davis and Reginald Harris, Appellants.
    Submitted July 11, 1988;
    decided September 22, 1988
   Motion to dismiss the appeals granted and appeals dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Joseph C. Losi, an Infant, by His Parent and Natural Guardian, Judith Losi, et al., Appellants, v Hanover Insurance Company, Respondent, et al., Defendant.
    Decided September 22, 1988
   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 Sanjaylyn Company, Appellant, v State Tax Commission, Respondent.
    Decided September 22, 1988
   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:
    The People of the State of New York, Respondent, v Wayne E. Shaw, Appellant.
    Submitted August 1, 1988;
    decided September 22, 1988
   Motion for a writ of coram nobis, treated as a motion to vacate order of dismissal dated June 9, 1988 granted, appeal reinstated and case submitted without oral argument. [See, 72 NY2d 838.]


text:
    655 Sixth Avenue Tenants Association et al., Respondents, v 20th Street Associates, L. P., et al., Defendants, and Hugh O’Neill Building Co., Appellant.
    Submitted July 5, 1988;
    decided September 22, 1988
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of June 14, 1988, dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Irving B. Kendall, Respondent, v Herbert B. Evans, as Chief Administrative Judge of the State of New York, et al., Appellants.
    Argued September 7, 1988;
    decided October 13, 1988

      APPEARANCES OF COUNSEL

      Michael Colodner, John Eiseman and Barbara Zahler-Gringer for Herbert Evans, as Chief Administrative Judge of the State of New York, appellant.

      Robert Abrams, Attorney-General (Lawrence S. Kahn and Abigail I. Petersen of counsel), for Edward V. Regan, as Comptroller of the State of New York, and another, appellants.

      David C. Gilberg for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (126 AD2d 703).

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


text:
    In the Matter of James Watson, Appellant, v Thomas A. Coughlin, as Commissioner of the Department of Correctional Services, et al., Respondents.
    Argued September 9, 1988;
    decided October 13, 1988

      APPEARANCES OF COUNSEL

      Lee A. Davis and David C. Leven for appellant.

      Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (132 AD2d 831).

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


text:
    State of New York, Respondent, v Martin Fine et al., Appellants.
    Argued September 7, 1988;
    decided October 13, 1988

      APPEARANCES OF COUNSEL

      Howard N. Spiegler for appellants.

      Robert Abrams, Attorney-General (Donna Miller and O. Peter Sherwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs (see, Horowitz Bros. & Margareten v Margareten, 64 NY2d 1008, 1010), the Attorney-General’s motion for a preliminary injunction denied, and the certified question answered in the negative.

This action by the Attorney-General seeking permanent injunctive relief under the Martin Act (General Business Law art 23-A) charges defendants with various acts of fraud in connection with the cooperative conversion of two Manhattan loft buildings during 1979. In September 1986, Supreme Court ordered immediate trial of the action and, pending entry of final judgment, preliminarily enjoined defendants from engaging in or attempting to engage in any business relating to the purchase and sale of securities to the public within or from the State, and from violating the provisions of the Martin Act. A divided Appellate Division affirmed, the majority concluding that the Attorney-General had satisfied not only his diminished burden under the Martin Act for a preliminary injunction (by showing prima facie that defendants’ actions fell within the purview of the act) but also the higher standard under CPLR article 63 (in that material facts were undisclosed). The dissenters disputed the application of a diminished standard, as well as the majority’s conclusion that there were in fact any material omissions. Since November 1986, and upon certain notification conditions, the preliminary injunction ordered by Supreme Court has been stayed.

The Appellate Division dissent is correct that a preliminary injunction under the Martin Act, as under CPLR article 63, should be granted only upon a showing of a likelihood of success on the merits, irreparable injury if the relief is not granted, and a balancing of the equities (Grant Co. v Srogi, 52 NY2d 496, 517). The Legislature made plain in the Martin Act that "[t]he provisions of the civil practice law and rules shall apply to all actions brought under this article except as herein otherwise provided” (General Business Law § 357), and it specified no other standard for preliminary injunction motions (cf., General Business Law § 354; Matter of Ottinger v State Civ. Serv. Commn., 240 NY 435, 439).

Inasmuch as the Martin Act has a broad remedial purpose to protect the public interest, it may present its own special considerations in determining what is irreparable injury and in balancing equities. The record here, however, does not call upon us to spell out what the Attorney-General must show to satisfy those prerequisites for preliminary injunctive relief, because there was no showing of either element, which is dispositive of the case before us.

The need for the injunctive relief that was granted here rested on conclusory assertions that defendants had committed repeated fraudulent practices in connection with two prior cooperative conversions and that the public had been and would be irreparably harmed. Other assertions were made solely on information and belief. The Appellate Division gave no consideration to the necessary discretionary elements for preliminary injunctions; its sole focus, as limited by the Attorney-General’s proof, was simply on whether there were omissions in connection with defendants’ two past cooperative conversions. Thus, the majority erred.

Resolution of the preliminary injunction issue leaves in place Supreme Court’s direction that there should be an immediate trial of this action, and we need not reach the additional grounds of error urged by defendants.

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

Order reversed, without costs, plaintiff’s motion for a preliminary injunction denied, and certified question answered in the negative in a memorandum.


text:
    William McKechnie, as President of the Patrolmen’s Benevolent Association of the New York City Transit Police Department, et al., Plaintiffs, v Juan U. Ortiz, as Personnel Director of the City of New York, et al., Defendants. James J. Boyle, as President of the Uniformed Firefighters Association, et al., Intervenors-Appellants, v Juan U. Ortiz, as Personnel Director of the City of New York, et al., Respondents.
    Argued September 8, 1988;
    decided October 13, 1988
    APPEARANCES OF COUNSEL

      Kathleen Gill Miller and Michael N. Block for appellants.

      Peter L. Zimroth, Corporation Counsel (Kristin M. Helmers and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

This declaratory judgment action has its genesis in the 1975 New York City fiscal crisis. In an effort to mitigate its financial woes, the City laid off large numbers of employees, including nearly 6,000 members of its uniformed services, many of whom were rehired over the next five years, as the City’s finances improved. In 1982, the Legislature enacted Civil Service Law § 80 (7) (now Civil Service Law § 80 [8]) in order to restore certain rights to those employees who returned to City employment. The statute provided that returning employees "shall be deemed to have been in continuous service in determining seniority and length of service * * * provided, however, that for retirement purposes, a member receiving such service credit shall pay into the annuity savings fund * * * the amount * * * required to have been paid * * * for such service”. Representing rehired uniformed service employees, plaintiffs sought a declaration that, by Civil Service Law §80 (7), the Legislature bestowed upon them constructive seniority and credit for all employment purposes — not only pension and retirement benefits but also promotion eligibility, salary rate, assignments and reassignments, scheduled days off and leave.

We cannot agree with plaintiffs that the word "seniority,” as used in Civil Service Law § 80 (7), unambiguously imports every consequence of job seniority found in the Civil Service Law. To the contrary, "seniority” in the context of Civil Service Law § 80 — which is entitled "Suspension or demotion upon the abolition or reduction of positions” — manifests a legislative intent to confer a more qualified benefit for these returning employees: that if there were any further "abolition or reduction of positions,” these employees would be deemed to have been in continuous service, and in that sense have seniority. Such a construction of the section is consistent with the contemporaneous indications in the legislative history that the principal focus was on pension and retirement benefits, not the sweeping benefits plaintiffs urge; this construction is also consistent with the projected fiscal implications (see, McKechnie v Ortiz, 132 AD2d 472, 473-474). Moreover, the broad reading urged by plaintiffs to accommodate their asserted rights would necessarily dislocate other employees and undermine the "merit and fitness” requirements of the Constitution and the Civil Service Law (see, NY Const, art V, § 6; Civil Service Law § 52 [2], [3]) — consequences that could hardly have been intended by the amendment that was made to section 80 of the Civil Service Law (see, e.g., People v Epton, 19 NY2d 496; Wiggins v Town of Somers, 4 NY2d 215).

In that the Civil Service Commission’s construction of the statute in Higdon v New York City Civ. Serv. Commn. (125 AD2d 1010) was not necessary to the determination of that case, defendants are not precluded from litigating that issue in this action (see, Ryan v New York Tel. Co., 62 NY2d 494, 500-501).

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

Order affirmed, with costs, in a memorandum.


text:
    Brent Howard et al., Appellants, v Poseidon Pools, Inc., et al., Defendants, and S & V Pools, Inc., Trading as Poseidon Pools, Inc., et al., Respondents. Ronald Manning, Appellant, v Raymond Manning et al., Respondents.
    (Appeal No. 1.)
    (Appeal No. 1.)
    Argued September 7, 1988;
    decided October 13, 1988

      APPEARANCES OF COUNSEL

      Joseph C. Dwyer and Mark S. Williams for appellants in the first above-entitled action.

      Thomas G. Collins for S & V Pools, Inc. and another, respondents in the first above-entitled action.

      William E. Coplon for Home-N-Roam Leisures, Inc., respondent in the first-above entitled action.

      Philip Celniker for appellant in the second above-entitled action.

      Charles G. DiPasquale for Raymond Manning and another, respondents in the second above-entitled action.

      Joseph DeMarie for Fanta-Sea Swim Center, Inc., respondent in the second above-entitled action.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be affirmed, with costs; the certified question in Manning is not answered as unnecessary.

In Howard, plaintiff, who was 6 feet, 3 inches tall, sustained severe and permanent injuries upon diving head first into an above-ground pool having a water depth of about four feet. Plaintiff stated that he attempted to dive through an inner tube that was floating in the water some eight feet from the deck of the pool. It is undisputed that plaintiff was an experienced swimmer familiar with diving techniques, that he had been swimming in the pool for about 45 minutes prior to the accident, and that he knew the water was shallow. At his examination before trial, plaintiff testified that he had been informed of the water depth and that when he stood in the pool, the water level was about "chest high”. Additionally, plaintiff acknowledged that he was generally familiar with the danger that injury might result from diving head first into shallow water.

As in Howard, the plaintiff in Manning suffered debilitating injuries upon diving into an above-ground pool owned by his parents. At his examination before trial, plaintiff testified that he considered himself to be a "good” swimmer and that he had used the pool in question about 20 times prior to the date of the accident. Plaintiff also stated that he was 5 feet, 11 Vi inches tall, that he was aware that the water depth was only about 4 Vi feet, and that when he stood in the pool the water level was about "chest high”. Plaintiff conceded that he dove into the water head first from a deck adjacent to the pool and that he could see the bottom of the pool at the time of his dive.

Plaintiffs in Howard and Manning argue that the defendants were under a duty to warn potential users of this type of shallow pool of the danger of injury inherent in diving into them. Even assuming such a duty existed, however, summary judgment was properly granted upon the facts of each case. "To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). Although it is ordinarily for the trier of fact to determine legal cause, "where only one conclusion may be drawn from the established facts * * * the question of legal cause may be decided as a matter of law” (Derdiarian v Felix Contr. Corp., 51 NY2d, at 315, supra). In each case, the record eliminates any legal cause other than the reckless conduct of the plaintiff who "by virtue of [his] general knowledge of pools, his observations prior to the accident, and plain common sense * * * must have known that, if he dove into the pool, the area into which he dove contained shallow water”, and thus posed a danger of injury (Smith v Stark, 67 NY2d 693, 694). Thus, each plaintiff’s conduct, rather than any negligence by the defendants in failing to issue warnings, was the sole proximate cause of his injuries (Boltax v Joy Day Camp, 67 NY2d 617; Smith v Stark, 67 NY2d 693, supra).

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

In Howard v Poseidon Pools: Order affirmed, with costs, in a memorandum.

In Manning v Manning: Order affirmed, with costs, in a memorandum. Certified question not answered as unnecessary.


text:
    Patricia Jackson, Appellant, v L.P. Transportation, Inc., Respondent.
    Argued September 6, 1988;
    decided October 13, 1988

      APPEARANCES OF COUNSEL

      A. Lawrence Washburn, Jr., for appellant.

      Adele A. Sheridan for respondent.
   OPINION OF THE COURT

Memorandum.

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

This action to recover for personal injuries resulting from an automobile accident was commenced more than three years after the date of the accident. When defendant moved to dismiss the complaint for untimeliness (see, CPLR 214), plaintiff countered by arguing that her claim had not accrued until the injury prevented her from performing her "usual and customary activity” for 90 days within the first 180 days after the accident, as required by the no-fault statute (Insurance Law § 5102 [d]), and that her complaint was therefore timely. The courts below properly rejected this contention.

The time for bringing a common-law negligence action begins to run from the date of the occurrence (see, e.g., Smalley v Hutcheon, 296 NY 68, 72). The No-Fault Law does not alter that general rule or justify an exception for personal injury claims based upon the negligent operation of a motor vehicle.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Continental Arms Corp., Respondent, v State Tax Commission et al., Appellants.
    Argued September 7, 1988;
    decided October 13, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Daniel Smirlock, O. Peter Sherwood and Peter H. Schiff of counsel), for appellants.

      Abraham S. Guterman and Alan E. Marder for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the State Tax Commission reinstated.

Those required to collect sales tax must maintain records which "shall be available for inspection and examination at any time upon demand” by the Tax Commission (Tax Law § 1135 [d] [emphasis supplied]). In turn, the Tax Commission is authorized to assess a sales tax return deemed to be incorrect or insufficient with "such information as may be available” (Tax Law § 1138 [a] [1] [emphasis supplied]).

The record, supported by substantial evidence, establishes that although Continental Arms may have maintained complete and accurate records for itself, it frustrated the accomplishment of an unabridged audit by refusing in a course of conduct to make those records available upon demand by the Commission’s auditor. Under these circumstances, the Tax Commission is authorized to use a test period method audit; it is not compelled to resort only to its subpoena authority; and its action may not be said to be arbitrary, capricious or illegal (see, Matter of Licata v Chu, 64 NY2d 873, 874; Matter of Grant Co. v Joseph, 2 NY2d 196, 206; Matter of Surface Line Operators Fraternal Org. v Tully, 85 AD2d 858, 859; Tax Law § 1143 [a]).

Moreover, after the tax deficiency was assessed by the test period audit, the taxpayer still had the opportunity to contest the assessment by production of its books (see, Matter of Sol Wahba, Inc. v State Tax Commn., 127 AD2d 943, 944; Matter of On the Rox Liqs. v State Tax Commn., 124 AD2d 402, 403-404, lv denied 69 NY2d 603; Tax Law § 1138).

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

Order reversed, etc.


text:
    Jan B. Burba et al., Appellants, v Rochester Gas & Electric Corporation, Respondent.
    Submitted August 29, 1988;
    decided October 13, 1988
   Motion to vacate August 8, 1988 order of dismissal denied. [See, 72 NY2d 914.]


text:
    Martin J. Sawma, Appellant, v State of New York et al., Respondents.
    Submitted August 22, 1988;
    decided October 13, 1988
   Motion for reargument granted and, upon reargument, July 12, 1988 order vacated insofar as it dismissed for untimeliness petitioner’s motion for leave to appeal from the Appellate Division order dated January 29, 1988, and motion for leave to appeal from the January 29, 1988 order denied. [See, 72 NY2d 907.]


text:
    The People of the State of New York ex rel. Joseph D. Sloboda, on Relation of David Woods, Appellant, v Warden, House of Detention for Men, Rikers Island Correctional Facility, Respondent.
    Submitted September 26, 1988;
    decided October 14, 1988
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Carolyn Denton, Respondent, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, et al., Appellants.
    Argued September 9, 1988;
    decided October 18, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Harvey M. Berman, O. Peter Sherwood and Lawrence S. Kahn of counsel), for appellants.

      Thomas N.N. Angell for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, a widow in her late sixties, has a well-documented history of hypoglycemia dating back to childhood. Until the condition was diagnosed shortly before her initial application for funding, the symptoms of her illness were debilitating. She experienced nightmares and constant bouts of depression, attempted suicide several times, and repeatedly required hospitalization. After it was finally discovered that the cause of this lifelong illness was hypoglycemia, petitioner was placed on a special high-protein, low-carbohydrate diet. Respondent does not dispute that there has been a remarkable change in petitioner’s condition; nor is there dispute that the cost of the diet prescribed for her condition can be calculated. Nonetheless, respondent insists that under Social Services Law § 365-a (2), petitioner cannot be provided with the funds required to meet the cost of purchasing her prescribed diet. This is the second time respondent has litigated petitioner’s claim through the appellate courts (see, Matter of Denton v Blum, 95 AD2d 854).

Where the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom, courts regularly defer to the agency charged with responsibility for administration of the statute, and will uphold its interpretation, if not irrational or unreasonable (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). Here, respondent’s restrictive reading of the statute —in effect, that food that can be purchased at a grocery can in no circumstances be considered "medical assistance” — cannot be said to be rational, nor is it humane or in accordance with the legislative purpose (see, Matter of Sabot v Lavine, 42 NY2d 1068, 1069).

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

Order affirmed, with costs, in a memorandum.


author: Bellacosa, J.

text:
    In the Matter of Harold R. Snyder, Jr., Appellant, v Civil Service Commission of the State of New York et al., Respondents.
    Argued September 13, 1988;
    decided October 18, 1988

      APPEARANCES OF COUNSEL

      William F. Sheehan and Peter T. Gumaer for appellant.

      Robert Abrams, Attorney-General (Peter G. Crary, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the court’s memorandum (132 AD2d 905). We do not condone the practice of the Department of Civil Service, itself charged with State-wide administration of the statutes at issue here, of filling "temporarily vacant” positions on its own staff on a provisional basis, when it concededly has no intention of ordering the examination unambiguously mandated by Civil Service Law §65 (2). The Department’s questionable practice cannot, however, result in a permanent appointment for petitioner when there is no basis in law for converting his provisional appointment to a permanent one.

Bellacosa, J.

(dissenting). I respectfully dissent and vote to reverse and grant the petition for the reasons stated in the dissenting memorandum by Presiding Justice A. Franklin Mahoney at the Appellate Division (132 AD2d 905, 907). I note especially, however, my concurrence in that part of the majority’s memorandum questioning what I would characterize as the evasive misconduct of the Civil Service Commission’s own personnel management policy towards its employee in this case — an unacceptable irony inflicted by the very agency charged with administering civil service protections Statewide.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur; Judge Bellacosa dissents and votes to reverse in another memorandum.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Eugene T. Dooley, as Sheriff of the County of Suffolk, et al., Respondents, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, Appellant.
    Argued September 14, 1988;
    decided October 18, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Frederic L. Lieberman, O. Peter Sherwood, Lawrence S. Kahn and Barbara B. Butler of counsel), for appellant.

      O. Thomas Boyle, County Attorney (Robert H. Cabble of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (134 AD2d 350). We add only that there was no abuse of discretion in ordering that respondent must accept State-ready inmates from petitioner’s custody within 14 days of sentencing unless exigent circumstances which justify a further limited delay are present in a particular case. (See also, Matter of Ayers v Coughlin, 72 NY2d 346 [decided today]).

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

Order affirmed, with costs, in a memorandum.


text:
    Paul Coxen et al., Appellants, v George Meyer, as Personnel Officer of Suffolk County, et al., Respondents.
    Argued September 9, 1988;
    decided October 18, 1988

      APPEARANCES OF COUNSEL

      Robert M. Ziskin and Lawrence M. Monat for appellants.

      E. Thomas Boyle, County Attorney (Caroline Levy of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the opinion by Justice Thomas R. Sullivan at the Appellate Division (130 AD2d 72).

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


text:
    The People of the State of New York, Respondent, v Erik Robinson, Appellant.
    Submitted September 13, 1988;
    decided October 18, 1988
    APPEARANCES OF COUNSEL

      Livingston L. Hatch for appellant.

      Andrew W. Ryan, Jr., District Attorney (Lois McShane Webb of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be affirmed.

On this appeal from a judgment convicting defendant of violating the terms and conditions of his probation, defendant contends that the proceedings in the intermediate appellate coúrt were flawed because of the trial court’s failure to file a return as required by CPL 460.10 (3) (d). This contention is meritless.

CPL 460.10 (3) (d) provides that "[t]he court’s return must set forth or summarize evidence, facts or occurrences in or adduced at the proceedings resulting in the judgment, sentence or order, which constitute the factual foundation for the contentions alleged in the affidavit of errors.” In defendant’s case, this requirement was satisfied by the transcript of an electronic recording of defendant’s probation revocation hearing, which was filed with the County Court as part of the record on appeal. We note that there is no claim here that the "affidavit of errors” includes contentions that cannot be resolved by reference to the transcript. Further, defendant does not contend that the transcript is in any way incomplete or inaccurate (cf, CPL 460.10 [3] [e] [remedy for defective return is an order directing lower court to file amended return]).

We have examined defendant’s remaining contentions and found them to be either unpreserved or without merit.

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

Order affirmed in a memorandum.

       CPL 460.10 (3) governs the manner in which an appeal as of right may be taken to an intermediate appellate court "in a case in which the underlying proceedings were not recorded by a court stenographer”. Under paragraph (a), the appellant may file either a notice of appeal or an affidavit of errors. If the latter course is elected, the local criminal court from which the appeal is taken "must file with the clerk of the [intermediate] appellate court to which the appeal has been taken both the affidavit of errors and the court’s return” (CPL 460.10 [3] [d]).


text:
    In the Matter of Carriage House Motor Inn, Inc., Appellant, v City of Watertown et al., Respondents.
    Argued September 13, 1988;
    decided October 18, 1988

      APPEARANCES OF COUNSEL

      Janet D. Callahan for appellant.

      H. Dean Heberlig, Jr., for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (136 AD2d 895).

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


text:
    In the Matter of Patricia Case (Fife) et al., Claimants, v State Insurance Fund et al., Respondents. Uninsured Employers’ Fund, Appellant. Workers’ Compensation Board, Respondent.
    Submitted September 14, 1988;
    decided October 18, 1988

      APPEARANCES OF COUNSEL

      Gladys Carrion and Donald Lazarus for appellant.

      Raymond C. Green and Louis R. Salvo for State Insurance Fund, respondent.
    Mattituck House Movers, Inc., respondent, precluded.
   OPINION OF THE COURT

Memorandum.

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

The requirements for the cancellation of workers’ compensation insurance coverage must be strictly observed (Matter of Conklin v Byram House Rest., 32 AD2d 582, 583, affd 30 NY2d 657; Workers’ Compensation Law § 54 [5]). On the other hand, failure to establish strict compliance in the cancellation of a policy does not result in the automatic renewal of the policy in perpetuity, when the record discloses a course of conduct and intent by both the insured and the carrier not to renew subsequent to the policy expiration (see, Matter of Leide v Jacy Painting Co., 282 App Div 906, 907, lv denied 306 NY 984; Matter of Pucci v Novel Lithographers, 29 AD2d 590, 591). The latter is the case here. Thus, the Appellate Division is correct that the carrier is not liable (see, Matter of Barnes v Baker, 30 AD2d 580 [Gabrielli, J.]).

The president of Mattituck testified that he had not paid the premium on the State Insurance Fund policy since its expiration in September 1972, that he received and had actual notice of the policy cancellation years before the decedent’s death and that no effort to renew the policy or acquire a different policy was ever made. The State Insurance Fund witness presented a copy of the notice of cancellation filed with the Workers’ Compensation Board, but due to the destruction of Mattituck’s file in the ordinary course of business was unable to prove service of the notice on Mattituck. In light of the uncontroverted evidence that the policy was never renewed, the Fund’s failure to prove strict compliance with the cancellation requirements is without effect.

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

Order affirmed, with costs, in a memorandum.


text:
    European American Bank and Trust Company, Respondent, v Gertrude Robinson, Appellant.
    Decided October 18, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the nonfinal order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    Foster Wheeler Corporation et al., Appellants, v Richard H. Ulring, Sued Herein as Robert H. Ulring, Respondent.
    Submitted July 25, 1988;
    decided October 18, 1988
   Motion for leave to appeal, as limited by the submissions, dismissed upon the ground that so much of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Joey Sanza, Appellant, v Robert M. Morgenthau, as District Attorney of New York County, et al., Respondents.
    Submitted June 6, 1988;
    decided October 18, 1988
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, for mootness.


text:
    Larry Wohl et al., Respondents, v Edward Malz et al., Appellants.
    Submitted August 8, 1988;
    decided October 18, 1988
   Motion dismissed upon the ground that this court does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of Franklin Anderson, Appellant, v William Kirk, as Superintendent of Wallkill Correctional Facility, et al., Respondents.
    Decided October 20, 1988

      APPEARANCES OF COUNSEL

      Michael Raskin, Robert Selcov and David C. Leven for appellant.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Frank K. Walsh of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The issue in this article 78 proceeding is whether petitioner is entitled to credit for time spent on parole from the day his first sentence was vacated, April 23, 1984, until the day he was discharged from parole, October 31, 1985.

Section 70.30 (5) of the Penal Law provides that when a sentence imposed on a person is vacated and a new sentence is imposed for the same offense, "the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time credited against the vacated sentence shall be credited against the new sentence.” Thus, the question is whether the time petitioner spent on parole after his sentence was vacated should be credited against that vacated sentence.

CPL 430.10 provides: "Except as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced” (emphasis added). There can be no question this sentence was interrupted or changed by law and that petitioner is not entitled to credit for the intervening period.

Following the imposition of petitioner’s original sentence, the People successfully appealed claiming that the sentence was invalid because defendant should have been sentenced as a second felony offender (People v Anderson, 100 AD2d 937). The People’s appeal was taken as of right pursuant to CPL 450.20 (4) and 450.30 (2) and the Appellate Division had the power to vacate or modify the illegal sentence (CPL 470.15 [2]). The Appellate Division exercised this power when it vacated the sentence, held that petitioner was to be resentenced as a second felony offender and remitted the matter to Supreme Court for resentencing.

Although Matter of Licitra v Coughlin (61 NY2d 450), relied upon by the courts below is not controlling, it is instructive in applying CPL 430.10 because in Matter of Licitra the court rejected the contention that "anything less than a verbatim repetition of the words 'interrupt the sentence’ falls short of establishing the exception prescribed in CPL 430.10” (61 NY2d, at 453, supra). The Appellate Division vacatur in this case resulted in an "interruption” of petitioner’s sentence. Thus, under the exception provided for in CPL 430.10, petitioner’s original sentence was legally "interrupted” by the order of the Appellate Division and subsequently "changed” as authorized by the Criminal Procedure Law (see, id.). He was not entitled to credit on the original sentence for parole time after the date the sentence was interrupted. Because he was not entitled to credit on his original sentence after the vacatur, he could not be credited for this time on his new sentence pursuant to Penal Law § 70.30 (5) which allows credit against a new sentence only for time credited against the vacated sentence. Respondents have credited petitioner with all parole time served prior to the time the original sentence was vacated on April 23, 1984. There is, however, no statutory authority authorizing credit for time petitioner reported for parole subsequent to this date.

Petitioner also contends that if the court finds that the sentence was interrupted by the vacatur, it follows that the vacatur was no longer in effect when petitioner was resentenced. Therefore, he claims that under Penal Law § 70.40 he is entitled to sentence credit for an additional period of time he spent on parole after resentencing and before he was returned to prison. He remained on parole because execution of the new sentence was stayed on his motion pending reargument of the appeal. Penal Law § 70.40 applies to a prisoner who has served his minimum sentence, however, and since petitioner had not started serving his new sentence, it is not applicable to him (see, Penal Law § 70.30 [1] ["(a)n indeterminate sentence of imprisonment commences when the prisoner is received in an institution”]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, in a memorandum.


text:
    Mark Fleming et al., Respondents, v Long Island Railroad, Appellant.
    Argued September 14, 1988;
    decided October 20, 1988
    APPEARANCES OF COUNSEL

      Roy S. Schuchman and Seymour H. Metnick for appellant.

      James L. Fischer and John W. Manning 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.

The certified question raises the issue of whether failure to comply with the provisions of Public Authorities Law § 1276 (1), resulting in the dismissal of the action, precludes commencement of a second action pursuant to CPLR 205 (a) within six months of that dismissal. We conclude that it does not.

While disembarking from a Long Island Railroad car on April 10, 1979, plaintiff Mark Fleming was injured when he fell between the station platform and the railroad car. An action, timely commenced by service of a summons and complaint on July 26, 1979, was dismissed for failure to comply with the provisions of Public Authorities Law § 1276 (1). Plaintiffs subsequently made the demand required by Public Authorities Law § 1276 (1) and commenced a second action. This second action, commenced within six months of the dismissal of the original action, but more than six years after the accrual of the cause of action, would be time barred unless the provisions of CPLR 205 (a) are applicable.

CPLR 205 (a) provides that when a timely commenced action is terminated other than by voluntary discontinuance, neglect to prosecute, or by a final judgment on the merits, the plaintiff may bring a new action within six months after such termination (see, George v Mt. Sinai Hosp., 47 NY2d 170, 177-178; Gaines v City of New York, 215 NY 533, 539). We have stated, however, that when an action is dismissed for lack of personal jurisdiction based on defective service, the original action was never "commenced” for purposes of CPLR 205 (a), and the six-month extension is therefore unavailable (Markoff v South Nassau Community Hosp., 61 NY2d 283, 288; George v Mt. Sinai Hosp., 47 NY2d, at 175, supra; Erickson v Macy, 236 NY 412, 415-416).

The provisions of Public Authorities Law § 1276 (1) do not constitute a jurisdictional prerequisite; rather they establish a condition precedent, the satisfaction of which must be alleged in an action for personal injuries against a public authority. The complaint must allege that at least 30 days have elapsed since the presentation of a demand for settlement of the claim to the authority, which the authority has neglected or refused (Public Authorities Law § 1276 [1]). Such a demand provision is significantly different from the required service of a summons and complaint which commences the action and enables the court to acquire jurisdiction over the defendant (see, CPLR 304). A dismissal for failure to plead compliance with the condition precedent of Public Authorities Law § 1276 (1) is not a dismissal based on a jurisdictional defect such as would preclude application of the provisions of CPLR 205 (a). (Cf., Markoff v South Nassau Community Hosp., 61 NY2d, at 288, supra; George v Mt. Sinai Hosp., 47 NY2d, at 175, supra; Erickson v Macy, 236 NY, at 415-416, supra.) Since it is undisputed that plaintiffs timely and properly served the defendant in the original action, that action was timely commenced within the contemplation of CPLR 205 (a). To the extent that defendant argues the dismissal of the original complaint was on the merits, the argument is unavailing. (See, Carrick v Central Gen. Hosp., 51 NY2d 242, 252; see also, 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 205.05.)

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

Order affirmed, etc.

       Mark Fleming’s wife Sarah Fleming is also a plaintiff; she asserts a derivative action for loss of consortium.