text:
    Anthony Esteves et al., Plaintiffs, v Somco Fuel, Inc., et al., Defendants. Somco Fuel, Inc., Third-Party Plaintiff-Appellant, v 163 Eastern Parkway Realty Corp., Third-Party Defendant-Respondent.
    Argued March 21, 1979;
    decided April 24, 1979

      APPEARANCES OF COUNSEL

      William F. Larkin and John J. Langan for appellant.

      Martin K. Kahn and Benjamin E. Gellerman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the interlocutory judgment of Supreme Court reinstated.

The theory of the third-party complaint of Somco Fuel, Inc., was that the third-party defendant, 163 Eastern Parkway Realty Corp., the owner of the premises, was negligent in having improperly maintained and operated the heating plant, that its negligence was a substantial contributing factor to plaintiffs injuries, and accordingly that if plaintiff should recover against Somco, Somco would be entitled to contribution from 163 Eastern Parkway. At the trial on the issue of liability only, under a charge that it could hold 163 Eastern Parkway liable, inter alia, on a finding of its failure to keep the oil burner in a reasonably safe condition, the jury returned verdicts against both Somco and 163 Eastern Parkway and apportioned liability between them in the ratio of 75% against Somco and 25% against 163 Eastern Parkway. On appeal the Appellate Division modified and dismissed the third-party complaint on the ground that there was no proof of negligence on the part of 163 Eastern Parkway or that any act of omission or commission on its part was an actual cause of the explosion.

On the contrary, our examination of the record discloses that there was evidence that a master switch, adequate to disconnect the entire heating unit, was required by law to be maintained outside the boiler room but that the master switch in this instance did not disconnect the entire system because it did not shut down the preheater. There was also evidence that plaintiff, on observing excessive smoke in the hall outside the boiler room, threw the master switch outside the access door to the boiler room. On entering the boiler room he proceeded to the inside panel to the jackknife switch to cut off the preheater which had not been disconnected when he threw the master switch. When he pulled the jackknife switch, it generated an arc which ignited gas which had continued to flow through the system, an explosion erupted through the furnace door, and he was engulfed in flames.

In sum, there was evidence both of negligence on the part of 163 Eastern Parkway and of proximate causation. Accordingly, it was error to dismiss the third-party complaint.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Lester Gerr et al., Appellants, v William Weissberg, Respondent, et al., Defendant.
    Argued March 22, 1979;
    decided April 24, 1979

      APPEARANCES OF COUNSEL

      Stuart A. Schlesinger for appellant.

      Edward Thompson and John V. Henry for respondent.
   OPINION OF THE COURT

Memorandum.

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

We find no error of law in the determination of the Appellate Division that Special Term abused its discretion in conditionally denying defendant’s motion for summary judgment. Nor is there any substance to plaintiffs’ assertion that the Appellate Division was ousted of its authority of appellate review by the circumstance that, in reliance on plaintiffs’ compliance with the order of Special Term, the case had been restored to the calendar prior to the disposition of the appeal at the Appellate Division.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


text:
    The People of the State of New York, Respondent, v Lamar McC. (Anonymous), Appellant.
    Argued March 27, 1979;
    decided April 24, 1979

      APPEARANCES OF COUNSEL

      Michael J. Obús and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Scot N. Fein and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that it was not error at the pretrial suppression hearing to exclude defendant’s tender of evidence of alleged beatings by the police of two other participants in the gang rape. The evidence was offered to support defendant’s assertion that he had been the victim of police brutality by demonstrating a course of illegal conduct on the part of the police. It may be that in special circumstances of particular pertinence evidence of this nature would be admissible (see People v Lane, 10 NY2d 347, 354). Initially we note that in this case there was no suggestion that defendant had witnessed or was otherwise informed of the alleged brutality to his confederates. Nor was there any offer to demonstrate a closer nexus than that the other alleged beatings were administered by unidentified members of the police force during the course of interrogation of two other members of the same group of young men on the same evening defendant was questioned. Without greater proof of materiality or direct evidence that this was a method or pattern of police interrogation, it cannot be said to have been error to exclude the proffered testimony.

Defendant also contends that he was convicted of a charge which had been dismissed before trial. The indictment originally contained six counts, charging that the victim had been raped six times by a group of young men including defendant. Five of the six counts, each alleging accessorial conduct on the part of defendant were dismissed before trial; there was left only the count in which defendant was charged as principal. That count also included charges that defendant aided and abetted one of the other young men and Harvey L. Allen in the commission of the crime. The court left the remaining count undisturbed except for the deletion of superfluous connective references to the other counts which had been dismissed; there was no redaction of the aiding and abetting charge. The motion court had expressly found that no evidence had been presented to the Grand Jury of aiding and abetting in the commission of the offenses "other than the rape [count] in which [defendant] allegedly acted as principal”. Thus, accessorial liability remained a component of the surviving count on which defendant was convicted. We reject defendants’ assertion that there was insufficient evidence to support the jury’s verdict of guilty on that theory.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    George J. Batori, Appellant, v Cox, Barrell and Walsh, Respondent.
    Submitted March 26, 1979;
    decided April 24, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that it was not timely taken (CPLR 5513, subd [a]).


text:
    Claude N. Palmer et al., Doing Business as Palmer Mobile Homes, Inc., et al., Respondents, v New York State Human Rights Appeal Board, Appellant.
    Argued March 28, 1979;
    decided April 26, 1979
    APPEARANCES OF COUNSEL

      Alan J. Saks and Ann Thacher Anderson for appellant.

      Donald B. Frederick for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the order of the State Human Rights Appeal Board reinstated, and the petition for enforcement granted.

In this proceeding petitioners challenge a finding of the Human Rights Appeal Board that they engaged in unlawful racial discrimination. The Appellate Division, upon review of the record, found the decision of the board unsupported by substantial evidence. We disagree with this conclusion.

Complainant’s testimony, if credited by the board, establishes that the refusal of the trailer park owners to consummate the trailer transaction with him was motivated by racial bias — a distaste for an interracial relationship. Indeed, complainant related that one of the owners had made racially disparaging statements and had expressly refused to close the deal due to racial consideration. Inasmuch as the board was free to accept this evidence, as it obviously chose to do, we cannot say that the record as a whole lacks substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176).

We likewise are unable to disturb the award of damages to complainant for the mental anguish he suffered. On the present record the board could have concluded that race-related comments concerning complainant were uttered in the presence of petitioners’ employees, causing complainant humiliation and ultimately leading to his treatment by a physician. In view of the circumstances and the important public policy to be served in these cases, the award of damages must stand (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, supra, at p 184).

We have examined and considered petitioners’ remaining contentions, and conclude they lack merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order reversed, etc.


text:
    Allan Troncillito, Respondent, v Farm Family Mutual Insurance Company, Appellant.
    Submitted March 23, 1979;
    decided April 26, 1979
    APPEARANCES OF COUNSEL

      Ryan, Bradley, Kerr & Dali Vechia, P. C, for appellant.

      Allan Troncillito, respondent pro se.

   OPINION OF THE COURT

Order affirmed, with costs. We agree with the courts below that the items of personal property in question were within the coverage of the policy issued by defendant.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    Helen Monteferrante, Appellant, v New York City Fire Department et al., Respondents, et al., Defendant.
    Argued March 20, 1979;
    decided April 26, 1979

      APPEARANCES OF COUNSEL

      Robert Sugerman for appellant.

      Allan G. Schwartz, Corporation Counsel (Alexander J. Wulwick and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (63 AD2d 576).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of Irwin Kupferman et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v New York State Board of Social Welfare, Respondent.
    Argued March 21, 1979;
    decided April 26, 1979

      APPEARANCES OF COUNSEL

      Robert H. Iseman for appellants.

      Robert Abrams, Attorney-General (Clifford A. Royael and Jeremiah Jochnowitz of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (60 AD2d 674).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    The People of the State of New York, Respondent, v Richard A. Warren, Appellant.
    Argued March 23, 1979;
    decided April 26, 1979
    APPEARANCES OF COUNSEL

      Thomas J. Neidl for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant, following an extensive on-the-record colloquy between his counsel, the defendant and the Trial Judge regarding the details of the robbery in which the defendant articulated the factual details of the crime charged in the indictment, pleaded guilty to the charge of robbery third degree. He now claims that his plea should be vacated because, as he now belatedly asserts, the elements of the crime were not clearly spelled in the statements made to the court at the time he entered his plea, a claim which he raised for the first time at the Appellate Division. Not having raised the issue by motion to vacate or otherwise in the court of first instance, no error has been preserved for review (People v Primmer, 46 NY2d 1048; People v Adams, 46 NY2d 1047).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    Allen A. Funt Productions, Inc., et al., Appellants, v Chemical Bank, Respondent and Third-Party Plaintiff. Joan Goldes, as Administratrix of the Estate of Seymour Goldes, Deceased, Third-Party Defendant.
    Argued March 29, 1979;
    decided April 26, 1979

      APPEARANCES OF COUNSEL

      Arthur Richenthal for appellants.

      Harold Weisblatt, John B. Wynne and F. Jerry Phelps for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (63 AD2d 629). Question certified answered in the affirmative.

Concur: Chief Judge Cooke, Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    Rose Weinfeld, Appellant, v State of New York, Respondent.
    (Claim No. 60232.)
    Argued March 20, 1979;
    decided April 26, 1979

      APPEARANCES OF COUNSEL

      Sanford Solarz and Alvin Ashley for appellant.

      Robert Abrams, Attorney-General (Douglas S. Dales, Jr., and Jeremiah Jochnowitz of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (63 AD2d 443).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    Noel J. Brunell & Son, Inc., Respondent, v Town of Champlain et al., Respondents, and Tracy-Trombley Construction Co., Inc., Appellant.
    Argued March 27, 1979;
    decided April 26, 1979

      APPEARANCES OF COUNSEL

      Leslie F. Couch and Mary Anne Tommaney for appellant.

      Kenneth H. Holcombe for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the petition dismissed for the reasons stated in the dissenting memorandum by Madam Justice Ann T. Mikoll at the Appellate Division (64 AD2d 757-758).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of the Claim of Susan P. McDowell, Appellant, v Corbin La Voy, Doing Business as Empire Boring Co., et al., Respondents. Workers’ Compensation Board, Respondent.
    Argued March 21, 1979;
    decided April 26, 1979

      APPEARANCES OF COUNSEL

      James E. Buckley, John T. Garry, II, and Leonard W. Krouner for appellant.

      Thomas J. Walsh for Corbin La Voy and another, respondents.

      Robert S. Stockton for Turf Construction Co. and another, respondents.

      John E. Knauf for County Excavation, Inc., and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice Robert G. Main at the Appellate Division (63 AD2d 358).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of the Board of Education of the Roosevelt Union Free School District, Respondent, v Roosevelt Teachers Association, Appellant.
    Argued March 19, 1979;
    decided April 26, 1979

      APPEARANCES OF COUNSEL

      David N. Stein and James R. Sandner for appellant.

      Robert B. Sapir for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the judgment of the Supreme Court denying the application to stay arbitration reinstated. The board’s failure to advance a Serious argument under the Taylor Law (Civil Service Law, art 14) and the grant to the arbitrator of the "authority to decide whether the provisions of this Agreement have been complied with” mandate the conclusion that the arbitrator had jurisdiction to resolve the union’s claim that the so-called "per diem” teachers were "substitute teachers” within the terms of the agreement (see Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 513; Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; see, also, Board of Educ. v New Paltz United Teachers, 44 NY2d 890).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order reversed, with costs, and the judgment of Supreme Court, Nassau County, reinstated in a memorandum.


author: Jones, J.

text:
    In the Matter of Roger S., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued March 19, 1979;
    decided April 26, 1979

      APPEARANCES OF COUNSEL

      Wendy Sue Lauring, William E. Hellerstein and Charles Schinitsky for appellant.

      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli and Wachtler. Judge Jones dissents and votes to affirm in the following opinion in which Judge Fuchsberg concurs.

Jones, J.

(dissenting). I respectfully dissent from the decision of the majority to dismiss the appeal in this case. In my opinion appellant does raise a substantial constitutional objection, thus entitling him to an appeal as of right under CPLR 5601 (subd [b], par 1) although on consideration of his appeal I would affirm the Appellate Division’s resolution of the question he asks us to review.

The question defendant raised in the courts below and now presents on this appeal is whether, within the requirements of the Fourth Amendment to the Federal Constitution and section 12 of article I of our State Constitution, there was probable cause for his arrest. The test as to whether the question is sufficiently substantial to warrant an appeal as of right has been usefully formulated in reverse — whether the contention raised is so clearly nondebatable and utterly lacking in merit as to require dismissal for want of substance (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 55, p 253). In the present instance the question raised is a close one; accordingly I have no hesitancy in concluding that an appeal lies as of right.

Due principally to improper restrictions imposed by the suppression court on the admission of evidence of probable cause offered by the People, the record is sparse, but we must take it as it is. In the light most favorable to the People, the proper perspective on this appeal, the record contains proof that the police knew that a taxicab driver named Edsel Curtis had been killed in Brooklyn on December 12, 1975. At 8:15 a.m. on December 14 Detective Ebert of the homicide division had a 30-minute conversation with Gertrude Moore, defendant’s sister, who had voluntarily presented herself at the precinct. Detectives Grosso, Clark and Hunt were present when this conversation took place. At the hearing Detective Ebert testified that his conversation with Mrs. Moore had concerned investigation of the Curtis homicide and that he had received "information” from her. On objection of defendant’s counsel, however, the officer was not permitted to answer questions as to the substance of that information, other than to say that "what [Mrs.] Moore had told me was the fact that the homicide actually occurred” and that in response to a question as to whether defendant and his accomplice were armed, she "did speak about the weapon during that conversation”.

After that conversation Detectives Ebert, Grosso, Clark and Hunt were taken by Mrs. Moore to defendant. Ebert testified that based on the information received from Mrs. Moore "it appeared to me that there was urgency in that matter and I proceeded to act on that information along with Mrs. Moore”.

I recognize that this record is meager at best. There is no evidence as to the source of Mrs. Moore’s information or as to most of its content. Nonetheless it appears that Mrs. Moore did know of the particular homicide, knew something of the weapon and after a half-hour conference led the officers to her brother. The fact that she was known to be defendant’s sister was relevant to her reliability. In these circumstances I cannot say as a matter of law that the finding of probable cause by the Family Court (which heard the witnesses and was entitled to draw reasonable inferences from their testimony) now affirmed at the Appellate Division, must be set aside.

Accordingly, I would affirm the order of the Appellate Division.

Appeal dismissed, etc.

       It appears that Mrs. Moore had died several months before the second Family Court hearing.


text:
    In the Matter of Danny R., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted April 9, 1979;
    decided April 26, 1979
    APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Sonya Kornblum of counsel), for motion.

      Eve Cary opposed.
   OPINION OF THE COURT

Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Anthony S., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Decided April 26, 1979
    APPEARANCES OF COUNSEL

      William E. Hellerstein, Charles Schinitsky and Helen New-borne for appellant.

      Allen G. Schwartz, Corporation Counsel (Maureen F. Brennan of counsel), for respondent.
   OPINION OF THE COURT

Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved. Motion for assignment of counsel dismissed as academic.


text:
    Thomas Collins, an Infant, by his Parent and Natural Guardian, Joan Collins, et al., Appellants, v New York Hospital et al., Defendants, and David Gerber et al., Respondents.
    Submitted April 2, 1979;
    decided April 26, 1979
   Motions by respondents (A) Gerber and (B) Ravich, Drabkin and Lerman to dismiss the appeal herein denied (CPLR 5601, subd [a], par [iii]; see Levine v Shell Oil Co., 27 NY2d 797).


text:
    Sidney H. Ginsberg et al., Appellants, v North River Insurance Company et al., Respondents, et al., Defendant.
    Decided April 26, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that (1) insofar as taken against defendant New York Property Insurance Underwriting Association, there was a failure by plaintiffs to appeal to the Appellate Division from the dismissal of the complaint as against that defendant (Cohen and Karger, Powers of the New York Court of Appeals, § 94), and (2) insofar as taken against defendant North River Insurance Company, the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Lester Jackson, Respondent, v I. Walton Bader et al., Appellants.
    Submitted March 19, 1979;
    decided April 26, 1979
   Motion to dismiss the appeal herein with prejudice to any motion for leave to appeal, granted only to the extent that the appeal is dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion otherwise denied.


text:
    Arnold M. Weiss et al., Appellants, v State of New York et al., Respondents.
    Decided April 26, 1979
   Appeal transferred by the Court of Appeals sua sponte to the Appellate Division, First 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, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


author: Fuchsberg, J.

text:
    Wayne L. Dutton, Appellant, v City of Olean, Respondent.
    Argued March 19, 1979;
    decided May 1, 1979

      APPEARANCES OF COUNSEL

      Joseph C. Dwyer, P. G, for appellant.

      Jerome D. Schad for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Madam Justice M. Dolores Denman at the Appellate Division (60 AD2d 335).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler. Judge Fuchsberg dissents and votes to reverse in the following opinion.

Fuchsberg, J.

(dissenting). Because this case well illustrates why summary judgment ¡most often is inappropriate to the determination of questions^ of negligence (see Ugarriza v Schmieder, 46 NY2d 471; Andre v Pomeroy, 35 NY2d 361; Gerard v Inglese, 11 AD2d 381), because here discovery was not complete, because of the unusual pattern of facts and circumstances that the plaintiff would be called upon to assemble and present in this case and because so many of the facts on which he was dependent to prove his case were within the control of the defendant, I believe Special Term was correct in denying the defendant’s motion at this stage of the litigation.

Whether plaintiff, before the time he was shot and within the confines of the contained geographical area that constituted the zone of danger in which he found himself, had become a member of a sufficiently definable class which the city had affirmatively undertaken to protect from the sniper; whether — once the city had embarked on an affirmative course of conduct to ward off those who were potential targets —a special relationship may be deemed to have arisen between the municipality and those in jeopardy; whether the person who diverted the plaintiff into the line of fire was an agent of the city; whether this or other city conduct violated a duty emanating from the relationship; these, among others, were questions presenting such an admixture of law and fact, the answers to which were likely to depend on inferences that would arise from the facts as to warrant further exploration rather than immediate disposition (see, generally, Florence v Goldberg, 44 NY2d 189, 195, 197-198; Schuster v City of New York, 5 NY2d 75, 82; Zibbon v Town of Cheektowaga, 51 AD2d 448, 450, 453, app dsmd 39 NY2d 1056).

Accordingly, I would reverse the order of the Appellate Division and allow Special Term’s denial of the motion for summary judgment to stand.

Order affirmed, etc.


text:
    Marine Midland Bank-Central, Respondent, v Richard A. Gleason et al., Individually and Doing Business as Gleason, Foulke, Magill and Hewitt, Appellants.
    Argued March 19, 1979;
    decided May 1, 1979

      APPEARANCES OF COUNSEL

      Henry S. Fraser for appellant.

      Richard W. Cook for respondent.

      Robert Abrams, Attorney-General (George D. Zuckerman and Paul E. Dahlman of counsel), for State Tax Commission, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Although we agree with the result reached below, we take this occasion to clarify the procedural steps necessary to convert a State tax warrant into a perfected lien upon the property of a delinquent taxpayer. Subdivision (b) of section 1141 of the Tax Law provides that upon docketing of a tax warrant with the county clerk "the amount of such warrant so docketed shall become a lien upon the title to and interest in real and personal property of the person against whom the warrant is issued.”

We interpret this express language to grant the State a perfected lien upon the filing of a tax warrant without the further necessity of a levy. In so holding, we reject the conclusion reached by the Appellate Division that State tax liens, although perfected upon docketing, may be extinguished if a levy is not made within the lifetime of a judgment execution. (See CPLR 5230, subd [c].) In our view, the fact that subdivision (b) of section 1141 authorizes the Sheriff to proceed upon a docketed tax warrant in the same manner as executions issued against property of a judgment debtor refers only to enforcement, as distinguished from perfection of the lien. (See Matter of United Casket Co., 449 F Supp 261, 263-264; cf. Matter of Thriftway Auto Rental Corp., 457 F2d 409, 411-412; Corrigan v United States Fire Ins. Co., 427 F Supp 940, 942-943.) It follows from this analysis that all three State tax warrants constituted perfected liens having priority over respondent’s security interest. Thus, independent of the Federal tax lien, respondent’s collateral was impaired in an amount sufficient to justify the recovery below.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


text:
    In the Matter of Walter & Samuels, Inc., Appellant, v New York City Conciliation and Appeals Board, Respondent.
    Submitted April 23, 1979;
    appeal withdrawn May 1, 1979
   Appeal withdrawn on consent.


text:
    Murray Becker, Appellant, v Julien, Blitz & Schlesinger, P. C., et al., Respondents.
    Submitted March 19, 1979;
    decided May 1, 1979
   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 (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    Howard Birnbach, Appellant, v Syracuse University et al., Respondents.
    Submitted March 12, 1979;
    decided May 1, 1979
   Motion for leave to appeal dismissed upon the ground that, there having been no final disposition of the cross claim against the University, neither of the orders sought to be appealed from finally determines the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, §§ 20, 21, 40).


text:
    Cynthia Helfond, an Infant, by her Mother and Natural Guardian, Adrienne H. Wilkins, Appellant, v Jewish Hospital and Medical Center of Brooklyn et al., Respondents, et al., Defendants.
    Submitted April 16, 1979;
    decided May 1, 1979
   Motion for leave to appeal dismissed as untimely (CPLR 5513, subd [b]), with $20 costs and necessary reproduction disbursements to respondent Lasky.


text:
    In the Matter of the Civil Service Employees Association, Inc., Respondent, v Harold Newman et al., Constituting the Public Employment Relations Board, et al., Respondents, and Public Employees Federation, AFL-CIO, Appellant.
    Submitted April 25, 1979;
    decided May 1, 1979
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements to petitioner-respondent, upon the ground that the nonfinal order sought to be appealed from is not one within the meaning of CPLR 5602 (subd [a], par 2). Motion for a stay dismissed as academic.


text:
    In the Matter of Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent, v Charles E. Sigety, Doing Business as Florence Nightingale Nursing Home, Appellant.
    Submitted March 12, 1979;
    decided May 1, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does 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:
    Maria Spremo, Respondent, v Alfred Spremo, Jr., Appellant.
    Decided May 1, 1979
   Appeal dismissed, without costs, by the court sua sponte, upon the grounds that the order appealed from does not finally determine the action within the meaning of the Constitution and involves a question of discretion of the type not reviewable by the Court of Appeals.


text:
    Lawrence A. Wien, Individually and as a Limited Partner of Chelsea-Candide Company, Suing on Behalf of Himself and All Others Similarly Situated, Appellant-Respondent, v Chelsea Theater Center of Brooklyn et al., Defendants, and Max Arons, as President of Associated Musicians of Greater New York, Local 802, American Federation of Musicians, et al., Respondents-Appellants.
    Submitted April 9, 1979;
    decided May 1, 1979
   Motion for leave to cross appeal dismissed upon the ground that movants are not aggrieved by the order of the Appellate Division (CPLR 5511).


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Michael Di Pasquale, Appellant.
    Argued March 27, 1979;
    decided May 3, 1979
    APPEARANCES OF COUNSEL

      Bennett M. Epstein and Jacob R. Evseroff for appellant.

      Mario Merola, District Attorney (Timothy J. McGinn, Alan D. Marrus and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant, convicted upon a plea of guilty of perjury in the third degree (Penal Law, § 210.05), challenges the propriety of the denial of his motion to suppress certain conversations recorded by means of electronic surveillance, maintaining that the District Attorney lacked statutory authority to seek issuance of the wiretap orders. We reject this contention.

The conduct described in the affidavits submitted in support of these applications for eavesdropping warrants pursuant to CPL 700.10 (subd 1) had a sufficient nexus to Bronx County to authorize the Bronx County District Attorney’s investigation and concomitant applications for the challenged electronic surveillance. The information supplied by the District Attorney revealed the existence of a scheme to affect the parole status of an inmate at Wallkill Correctional Facility. Subpoenaed telephone records indicated that a number of telephone calls had been made to correction officers at various facilities from the Rosedale Bar in Bronx County. One of the recipients of these calls, a correction officer at the Attica Correctional Facility, contacted by the District Attorney, informed the latter of a scheme to effect through bribery a transfer of a William "Red” Crabbe from Wallkill to Bedford Hills Correctional Facility. Agreeing to work with the District Attorney, the correction officer engaged in further discussion of Crabbe’s parole status over the telephone with an individual by the name of John Prunty. Prunty, who was on parole for a homicide conviction in Bronx County, had been observed frequenting the Rosedale Bar, from which, as previously noted, telephone calls had been made to correction officers, including the call to the correction officer at Attica who agreed to work with the District Attorney.

In our view, these contacts with Bronx County were sufficient to permit the Bronx County District Attorney to investigate this on-going scheme involving such crimes as bribery, rewarding official misconduct and conspiracy. To effectuate this investigation, the District Attorney certainly had the authority, pursuant to CPL 700.10 (subd 1), to seek issuance of wiretap orders. We have examined the remainder of defendant’s contentions and find them without merit.

Wachtler, J.

(dissenting). The wiretap warrant in this case authorized the tapping of a telephone located at John Prunty’s home in New York County in order to obtain evidence of bribery and related offenses allegedly committed in New York County. The application, however, was not made by the New York County District Attorney, but rather by the District Attorney of Bronx County. In my view this prosecutor was not the proper applicant and accordingly the evidence he obtained without lawful authority should be suppressed.

There is no doubt that the Bronx County District Attorney had no authority to prosecute the bribery offenses designated in the warrant. Indeed he readily concedes that "[a]s of the date of the application * * * there was no evidence that any of the acts constituting these crimes had occurred in Bronx County.” Nevertheless he claims, and apparently the majority agrees, that although the information in the application did not "give rise to probable cause to 'believe’ that the crime is then or will be committed in” Bronx County, he should be held to be authorized to make the application and obtain the warrant because there was a "reasonable nexus between the object crime and * * * [Bronx] County.”

The "reasonable nexus” is based entirely on telephone records indicating that on specific dates in the summer and fall of 1974 two phone calls were made from a phone located in a Bronx bar to certain telephone numbers listed as the private residences of correctional employees; one call for 2 minutes and the other for 15. One correctional officer allegedly stated that he received a call from Prunty on a "Friday night in September or October, 1974”, but of course there is no indication where Prunty was when he made the call. The People, however, theorize that Prunty, who resided in New York County, could have made the call from the Bronx bar because, on occasion, he was one of the patrons observed at the bar. Thus the "reasonable nexus” to Bronx County is based on pure speculation. Significantly when the officer agreed to continue the conversations with Prunty he invariably called or, at least, reached Prunty at his home in New York County and not at the Bronx bar where Prunty was said to be a regular customer and presumably initiated the bribe offer. In sum, the Bronx District Attorney went to New York County to tap a phone in order to obtain evidence of a crime which he concededly could not prosecute, in the hope that it might ultimately disclose evidence of criminal acts committed in Bronx County by John Prunty who frequented a bar there.

Of all the investigative techniques available to the police wiretapping poses the gravest intrusion on the individual’s privacy and constitutional rights. It is an extraordinary measure acceptable only in extraordinary situations, and subject always to close regulation by constitutional mandate (Berger v New York, 388 US 41) and statutory prescription (see, e.g., US Code, tit 18, § 2510 et seq.; CPL 700.05 et seq.). At the heart of these restrictions is the requirement that a wiretap warrant can only be issued upon the application of certain designated public officials (US Code, tit 18, § 2516, subd [2]; CPL 700.05, subd 5; 700.10, subd 1). The majority’s decision, requiring nothing more than a speculative interest on the part of the District Attorney — who concededly could not prosecute the offense designated in the warrant or even execute the warrant within the confines of his own jurisdiction — can only lead to an unpredictable proliferation of potential wiretap applicants, wholly at variance with the basic policy that access to wiretap orders be strictly limited to certain designated public officials.

Accordingly, I would grant the motion to suppress, reverse the conviction and dismiss the indictment.

Chief Judge Cooke and Judges Jasen, Gabrielli and Fuchs-berg concur; Judge Wachtler dissents and votes to reverse in an opinion in which Judge Jones concurs.

Order affirmed in a memorandum.


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    Long Island Home, Limited, Appellant, v Robert P. Whalen, as Commissioner of Health, et al., Respondents.
    Argued March 22, 1979;
    decided May 3, 1979

      APPEARANCES OF COUNSEL

      Andrew J. Schoen and Martin D. Juvelier for appellant.

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Jeremiah Jochnowitz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs, for the reasons discussed in the opinion authored by Mr. Justice J. Clarence Herlihy at the Appellate Division (62 AD2d 23). No contrary result is mandated by section 12 of chapter 617 of the Laws of 1970, for that provision merely preserves preexisting rights and remedies, and has no application to the type of inchoate property interest upon which plaintiff seeks to base its arguments.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed, with costs, in a memorandum.


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    Williamson, Picket, Gross, Inc., Appellant, v 400 Park Avenue Company, Respondent, et al., Defendant.
    Argued March 26, 1979;
    decided May 3, 1979

      APPEARANCES OF COUNSEL

      Clarence S. Barasch and Lionel A. Barasch for appellant.

      Charles G. Moerdler, Burton N. Lipshie and Curtis C. Mechling for respondent.
   OPINION OF THE COURT

Memorandum.

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

As noted by the Appellate Division: "The act of the defendant in bringing the suit was not unlawful and the defendant’s desire to so dispose of his property to his own advantage not being inherently malicious, fraudulent or motivated by a desire to damage the plaintiff, he thus had a proper purpose to serve.” Indeed the complaint alleges that 400 Park Avenue Company commenced the "action against the defendant and Banco * * * with the purpose and intent of preventing the execution of the sublease between Irving and Banco so as to enable the defendant 400 Park to obtain a more favorable direct lease with another tenant.” Since the plaintiff has failed to allege that the suit was motivated by malicious rather than bona fide economic considerations, the complaint was properly dismissed for failure to state a cause of action (cf. Reinforce, Inc. v Birney, 308 NY 164, 169).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


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    In the Matter of the Estate of Charles M. Sparacio, Also Known as Salvatore M. Sparacio, Deceased. Mary Sparacio, Respondent; Eileen Maroshick, Appellant.
    Argued March 23, 1979;
    decided May 3, 1979

      APPEARANCES OF COUNSEL

      Bernard Meyerson and Herman M. Goldberg for appellant.

      Roy Rudd and John G. Nicholas for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

We agree that the testamentary disposition in this instance was precatory rather than mandatory. The testator, knowledgeable in matters of legal drafting, chose to employ the classic words of precatory import — "wish and desire”. Additionally, the substantive disposition is internally incongruous with a testamentary mandate; the ultimate distribution was not to daughter and friend "in equal shares” but "as in their mutual agreement they decide” — an apportionment impossible of judicial implementation.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed, etc.


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    Chinatown Apartments, Inc., Plaintiff, v New York City Transit Authority et al., Defendants. Horn Construction Co., Inc., and Peter Kiewit Sons’ Co., a Joint Venture, Plaintiff, v Chinatown Apartments, Inc., et al., Defendants, and Robert Rosenwasser, P. C., Appellant. New York City Transit Authority, Third-Party Plaintiff, v De Leuw, Cather and Co. of New York, Inc., Third-Party Defendant-Respondent.
    Submitted April 16, 1979;
    decided May 3, 1979
   Motion to dismiss the appeal herein denied.


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    Seyma Dachowitz et al., Plaintiffs, v Jack Kranis, Defendant.
    Submitted February 26, 1979;
    decided May 3, 1979
   Motion to dismiss the action denied.


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    Patricia Dzus, Respondent, v Theodore Dzus, Jr., Appellant.
    Submitted April 23, 1979;
    decided May 3, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the modification at the Appellate Division is not in a respect which is within the power of the Court of Appeals to review (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582). Motion for a stay dismissed as academic.


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    Gerald Schaubman, Respondent-Appellant, et al., Respondent, v Barbara Blum, as Commissioner of the New York State Department of Social Services, Appellant-Respondent.
    Submitted March 26, 1979;
    decided May 3, 1979
   Motion to dismiss cross appeal granted and cross appeal dismissed, without costs, upon the ground that respondent-appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


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    Jeanine Snelson, Individually and as Administratrix of the Estate of Eugene Snelson, Deceased, Appellant, v S.G.M. Catering, Inc., Doing Business as Chicken Delight, et al., Respondents.
    Submitted April 9, 1979;
    decided May 3, 1979
   Motions by respondents (a) Perlstein, (b) S.G.M. Catering, Inc., and (c) Heljen Realty Company and Helen Jenchol to dismiss the appeal herein granted and the appeal dismissed, with one bill of costs and $20 costs of motion, upon the ground that no appeal lies as of right from the unanimous Appellate Division order of affirmance. Appellant’s answering papers are treated as a cross motion for leave to appeal and the cross motion is denied.


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    Angeline G. Januszko, as Administratrix of the Estate of Debra J. Januszko, Deceased, et al., Appellants, v State of New York, Respondent.
    (Claim No. 57431.)
    Argued March 23, 1979;
    decided May 8, 1979

      APPEARANCES OF COUNSEL

      David G. Miller and Daniel A. Ruzow for appellant.

      Robert Abrams, Attorney-General (Maurice K. Peaslee and Jeremiah Jochnowitz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

There is nothing in the record in this case which commands reversal of the factual determination made by the Court of Claims and affirmed at the Appellate Division that it was not foreseeable, when the inmate was discharged, that he would commit a brutal homicide five months thereafter. Accordingly, any negligence for which the State of New York might be held responsible was not the proximate cause of the decedent’s death.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wáchtler concur in memorandum; Judge Fuchsberg taking no part.

Order affirmed.


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    In the Matter of Robert Torsney, Appellant. Department of Mental Hygiene of the State of New York, Appellant; Eugene Gold, as District Attorney of Kings County, Respondent.
    Argued April 23, 1979;
    decided May 8, 1979
   Reargument ordered and the case set down for argument or submission on May 31, 1979.


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    Ames Volkswagen, Ltd., et al., Appellants, v State Tax Commission, Respondent.
    Argued March 30, 1979;
    decided May 8, 1979
   Reargument ordered and the case set down for argument or submission on May 29, 1979.


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    The People of the State of New York, Respondent, v Bernard Moore, Appellant.
    Argued May 1, 1979;
    decided May 8, 1979
   Reargument ordered and case set down for argument or submission on June 5, 1979.


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    Thomas D. Bieber, Individually and as Administrator of the Estate of Kathleen D. Bieber, Deceased, Plaintiff, v County of Wayne et al., Defendants. (Action No. 1.) Mary A. R. Riker et al., Respondents, v Estate of Kathleen D. Bieber et al„ Appellants. (Action No. 2.) Estate of Kathleen D. Bieber et al., Third-Party Plaintiffs-Appellants, v County of Wayne, Third-Party Defendant, and Town of Ontario et al., Third-Party Defendants-Respondents. (Action No. 3.)
    Submitted March 12, 1979;
    decided May 8, 1979
   Motions to dismiss the appeal denied.


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    The People of the State of New York, Respondent, v John J. R. (Anonymous), Appellant.
    Submitted March 30, 1979;
    decided May 10, 1979

      APPEARANCES OF COUNSEL

      Frank M. Klinger for appellant.

      Robert G. Hurlbutt, District Attorney (Bernard Kobroff of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, motion to suppress defendant’s statements granted, plea vacated and case remitted to Oswego County Court for further proceedings on the indictment for reasons stated in the dissenting memorandum by Mr. Justice Stewart F. Hancock, Jr., at the Appellate Division (62 AD2d 1157-1158; see, also, People v Munlin, 45 NY2d 427; and People v Grant, 45 NY2d 366).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


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    The People of the State of New York ex rel. Stephen Mendolia, Respondent, v Superintendent, Green Haven Correctional Facility et al., Appellants.
    Argued May 1, 1979;
    decided May 10, 1979
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Burton Herman and Samuel A. Hirshowitz of counsel), for appellants.

      Joel P. Gorham, Daniel J. Steinbock and David Steinberg for respondent.
   OPINION OF THE COURT

Order reversed, without costs, and the petition dismissed upon the ground that the remedy of habeas corpus is not available since relator will not be entitled to immediate release, in view of counsel’s advice that relator is now incarcerated as the result of a new charge (People ex rel. Lane v Vincent, 32 NY2d 940; People ex rel. Fitzgerald v Casscles, 28 NY2d 866).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


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    Jock Thornton, as Executor of Sharon R. Thornton, Deceased, et al., Appellants, v Roosevelt Hospital et al., Respondents.
    Argued March 28, 1979;
    decided May 10, 1979

      APPEARANCES OF COUNSEL

      Sheila L. Birnbaum for appellant.

      James M. Furey for Roosevelt Hospital, respondent.

      Joseph D. Ahearn, J. Robert Morris and Michael G. Majewski for Testagar, Inc., and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

In this action sounding in strict products liability based on allegations that a thorium dioxide substance manfactured by defendant Testagar, Inc., and injected into decedent resulted in the onset of cancer, the cause of action accrued at the time of invasion of decedent’s body, and not at the time the decedent’s cancerous condition became apparent.

In Victorson v Bock Laundry Mach. Co. (37 NY2d 395), we held that the cause of action termed strict products liability accrues as of the date of injury, and inasmuch as such theory of liability is grounded in tort rather than contract, a three-year Statute of Limitations is applicable. Nowhere did the court state, or even suggest, that the social policies upon which the holding in Victorson was predicated might prompt a change in the traditional principle that a cause of action grounded in tort commences as of the date of injury.

It is well established in this State that when chemical compounds are injected into a person’s body, the injury occurs upon the drugs introduction, not when the alleged deleterious effects of its component chemicals become apparent. (Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, cert den 374 US 808.) Here, plaintiff’s claim being interposed some 20 years after the decedent’s injection — the date of injury — the action is time-barred, irrespective of whether the cause of action is couched in terms of strict products liability.

Nor can we conclude that plaintiff may invoke the so-called "discovery” rule. While in the context of medical malpractice an action may be commenced after discovery of a "foreign object” in the body of a patient (CPLR 214-a; see Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427), it is important to note that, by statute, chemical compounds do not constitute "foreign objects”. We decline the invitation to extend judicially the discovery rule to strict products liability actions. Such matter is best reserved for the Legislature, and not the courts. (Cf. Becker v Schwartz, 46 NY2d 401, 412; Codling v Paglia, 32 NY2d 330, 344-345.)

Fuchsberg, J.

(dissenting). The plaintiff in this wrongful death action appeals from an order of the Appellate Division that struck those portions of the orders of Special Term that had granted leave to the plaintiff to replead in strict liability and had affirmed so much of the orders as, inter alia, had dismissed causes premised on negligence. The case is still at the pleading stage. The defendants, maintaining that the case is time-barred, have successfully moved for summary judgment. They argued that the alleged injury to the decedent occurred at the time Thorotrast, the defendant Testagar’s trade name for the chemical compound thorium dioxide, was injected into her body at the defendant Roosevelt Hospital back in 1954. In opposition, the plaintiffs took the position that no injury was sustained at the time of the injection, which was consensual and uneventful when given, but rather that, by reason of the product’s latent properties, its attack on the decedent’s body did not occur until late 1972 or early 1973, dates that bring the commencement of suit well within the statute. Confining myself to the issue so defined, certainly at this stage of the case and pending exploration of the facts, I believe the motions should have been denied.

The pleadings are not complex. The complaint tells us that the Thorotrast was injected into Susan Thornton’s left maxillary region during a diagnostic examination for chronic sinusitis. It also alleges that, ostensibly a harmless substance intended merely to enhance the visualization of the sinus cavity on X-ray examination, to the knowledge of the defendants but unknown and undisclosed to her as the patient, it is a radioactive salt with a potential for causing cancer. The plaintiff further asserts that, though this foreign body ultimately caused the undifferentiated squamous cell carcinoma to which Mrs. Thornton succumbed, it did not produce its cancerous consequences before 1972, as confirmed not only by the absence of earlier tell-tale symptoms but by the negative results of other examinations during the intervening years.

Because the decisions below were posited entirely on the limitations question, there is no point here in delving into the medical literature, hospital records and argumentation with which the parties also punctuated their respective positions on other underlying questions, such as whether the product— cost-utility considerations in mind — was safe; whether warnings were required; and whether warnings, if in fact given to ministering physician or to patient, were adequate. Instead, I proceed at once to the dispute over when the statute began to run.

I first observe that, while the court in effect has assumed that the choice is between the date when the Thorotrast was injected and the date when the cancer first developed, the latter date is not necessarily the same as the one on which the victim became aware of the injury. On this score, since the plaintiff pleads that the product was one whose deleterious activity could either occur belatedly or act slowly and insidiously over a long period of time, the accrual date could be one of three, i.e., (1) the date of ingestion, (2) the date when, regardless of whether Mrs. Thornton then became aware of it, the injury process first started to work on her body, and (3) the date when the injury manifested itself sufficiently to put her on notice that an injury had indeed occurred. The second and third alternatives would require a reversal of the order appealed from so that the proof as to when either of them took place could be developed.

Drugs with a latent or slowly evolving potential for harm are no longer unique. The bewilderingly broad spectrum of such products grows greater all the time. More and more, they compel their users to place blind reliance on the care with which they are designed, tested, fabricated, marketed and administered. Characteristically, the dangers they carry are hidden; as often as not, the earliest indication of harm may not turn up until a point remote in time, the adverse effect meanwhile being unknown and perhaps even nonexistent. Good sense and good law therefore require, it seems to me (and apparently to many courts), that the injured user not be foreclosed from having his day in court before he even has knowledge of any injury and certainly not before any injury has occurred.

Schmidt v Merchants Desp. Transp. Co. (270 NY 287) and Schwartz v Heyden Newport Chem. Corp. (12 NY2d 212), the cases upon which Special Term and the Appellate Division relied, are not insuperable obstacles. It is no impermissible slight to the rule of precedent to remember that, as with decisional law generally, what is Judge-made can be and, in appropriate cases, should be Judge-unmade. Stare decisis is a malleable rule, not one bound by bands of steel. As Roscoe Pound put it, "the law would break if it could not bend”. Indeed, in recent years, we have given recognition to the fact that the dynamic nature of personal injury law calls upon us to "readily re-examine established precedent to achieve the ends of justice in a more modern context” (People v Hobson, 39 NY2d 479, 489; see, e.g., Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; Barker v Parnossa, Inc., 39 NY2d 926; Micallef v Miehle Co., 39 NY2d 376; see, also, People v Miller, 39 NY2d 543; Gelbman v Gelbman, 23 NY2d 434; Millington v Southeastern Elevator Co., 22 NY2d 498; Gallagher v St. Raymond’s R. C. Church, 21 NY2d 554; Battalla v State of New York, 10 NY2d 237; Bing v Thunig, 2 NY2d 656).

In fact, Schmidt and Schwartz carry their own seeds of obsolescence. So, in Schmidt, a 1939 case in which a plaintiffs inhalation of dust (unlike the present case, an uninvited trauma) eventually produced a disease of his lungs, the statute was held to run from the time the dust was ingested rather than when the injury came to the fore, despite the court’s pronouncement (p 300) that "There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury” (emphasis mine). How to reconcile that statement with the Schmidt result? By remembering that 40 years ago products liability law still hearkened back to a norm of immediacy of cause and effect rather than consciousness of the temporal gap between consumption and injury that the advent of more complex and sophisticated products has made the frequent order of the day. It is no surprise that, before the decade following Schmidt was over, the United States Supreme Court, in a similar factual context, had occasion to comment that " 'inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time; consequently the afflicted employee can be held to be "injured” only when the accumulated effects of the deleterious substance manifest themselves’ ” (Urie v Thompson, 337 US 163, 170).

Our later decision in Schwartz did little to rebut Urie’s self-evident statement; a case close to the present one on its facts, it adhered to Schmidt slavishly. Doing so, it bucked the trend of products law across the country. It also drew a strong dissent from Chief Judge Desmond and Judge (later Chief Judge) Fuld, in which they minced no words in pointing out that "it would be unreasonable and perhaps unconstitutional to hold that [the] time to sue expired before it was possible for [the plaintiff] to learn of the wrong” (Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 219, supra [dissenting opn]). It is now more than high time we overrule these cases (see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of New York, Book 7B, CPLR 203, p 111, 203:1).

The policy to be applied is akin to the powerful one governing infants’ cases. We all recognize that it is wrong for a child too immature or too unaware of his or her right to act to be barred on that account. The adult victim of a drug whose injurious effect, like that of a time bomb, is either delayed or unknowable, is clearly as helpless to act as an infant. To the extent that there very well may be some awareness in the case of the infant, but none in the case of an adult in circumstances like those now before us, there may be even more reason for the law to extend its protection to the adult.

Finally, with due regard for separation of powers, this is hardly an appropriate matter on which to await legislative action. That a right to recover should run from the time it is discoverable is a matter of fundamental justice. It is an abdication of our own role in the scheme of government to defer to the Legislature for rescue from an unconscionable decisional law.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in memorandum; Judge Fuchsberg dissents and votes to reverse in a separate opinion.

Order affirmed.

        (Goodman v Meade Johnson & Co., 534 F2d 566; Karjala v Johns-Manville Prods. Corp., 523 F2d 155; Roman v Robbins Co., 518 F2d 970; Borel v Fireboard Paper Prods. Corp., 493 F2d 1076; Thrift v Tenneco Chem., 381 F Supp 543; Raymond v Lilly & Co., 117 NH 164; Gilbert v Jones, 523 SW2d 211 [Tenn]; see Reynolds Tobacco Co. v Hudson, 314 F2d 776, 785; Brush Beryllium Co. v Meckley, 284 F2d 797, 798-800; Ricciuti v Voltarc Tubes, 277 F2d 809, 813; Sylvania Elec. Prods. v Barker, 228 F2d 842, 847-848; Chrischilles v Griswold, 260 Iowa 453; Phillips, An Analysis of Proposed Reform of Products Liability Statutes of Limitations, 56 NC L Rev 663, 664; Products Liability-Accrual and Limitations of Actions, 35 Tenn L Rev 335, 340; Developments in the Law-Statutes of Limitations, 63 Harv L Rev 1177, 1204-1205.)


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    The People of the State of New York, Respondent, v Kenneth Johnson, Appellant.
    Argued March 22, 1979;
    decided May 10, 1979

      APPEARANCES OF COUNSEL

      James P. Harrington for appellant.

      Edward C. Cosgrove, District Attorney (Judith Blake Manzella of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Just as evidence of prior criminal conduct cannot be admitted as evidence-in-chief to establish a predisposition to commit the crime charged (People v Vails, 43 NY2d 364, 368; People v Fiore, 34 NY2d 81, 84; People v Molineux, 168 NY 264, 292), evidence tending to establish that a defendant did not commit uncharged crimes is, because of its irrelevancy, similarly inadmissible as evidence-in-chief to establish that the defendant did not commit the charged crime. Defendant maintains, however, that the evidence excluded — viz., the inability of a victim of a separate rape to identify defendant as her assailant — was relevant not because it tended to establish a "predisposition” not to commit crime, but because it was probative on the issue of whether the victim of the rape for which defendant was tried misidentified him.

As a general rule, evidence is relevant if it tends "to convince that the fact sought to be established is so.” (People v Yazum, 13 NY2d 302, 304; see, generally, McCormick, Evidence [2d ed], § 185; Richardson, Evidence [10th ed], § 4.) On the facts of the present case the evidence defendant sought to introduce was irrelevant to prove his claim of misidentification. In our view, the Appellate Division correctly concluded that "[testimony of another victim concerning another robbery and rape committed in a different manner at another location, and on a different date, that defendant was not the man who attacked her, had no probative value in determining whether defendant robbed, raped and sodomized complainant in this case.” (62 AD2d 555, 559.)

We would also agree that although the conduct of the prosecutor was not exemplary, it was not sufficiently egregious to deprive defendant of a fair trial. (People v Arce, 42 NY2d 179, 189-191; People v Alicea, 37 NY2d 601, 603.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


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    Jean H. Tuthill, as Suffolk County Treasurer, et al., Respondents, v Raymond C. Allmendinger, as Supervisor of the Town of Babylon, et al., Appellants.
    Argued April 24, 1979;
    decided May 10, 1979

      APPEARANCES OF COUNSEL

      Joseph F. Klein, Town Attorney, for Raymond C. Allmendinger and others, appellants.

      Francis G. Caldeira, Town Attorney (Edward S. Raskin of counsel), for Peter F. Cohalan and another, appellants.

      Howard E. Pachman, County Attorney (Anton J. Borovina of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (68 AD2d 885, decided March 5, 1979).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


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    In the Matter of Tessy Plastics Corporation, Appellant, v State Division of Human Rights et al., Respondents.
    Argued March 19, 1979;
    decided May 10, 1979

      APPEARANCES OF COUNSEL

      Roger Scott and Kenneth J. Bobrycki for appellant.

      Elaine Berger and Ann Thacher Anderson for respondents.
   OPINION OF THE COURT

Memorandum.

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

Consideration of two issues is dispositive of this appeal. In the first place we find no abuse of discretion or other error of law in the determination by the Appellate Division to vacate the default judgment at Supreme Court. We find no sufficient reason to reject the conclusions of the Appellate Division that there was such excusable default on the part of respondents and such merit to the contention that the State Division of Human Rights should not be precluded from further proceedings with respect to the complaint of Nancy Smith as to warrant opening the default in the interest of justice. It is immaterial that the basis for reversal of the disposition at Supreme Court was found by the Appellate Division to be the unavailability of the remedy sought rather than the entitlement of respondents to prevail on the merits, and that this basis was raised by the court on its own initiative rather than advanced by respondents.

In the second place, the default having been opened, we agree with the Appellate Division that the extraordinary remedy of prohibition does not indeed lie to interfere with proceedings before the State Division of Human Rights, at least in the circumstances presented in this record. While the employer claims that the division was precluded from proceeding further with respect to the complaint of Nancy Smith in consequence of its failure to observe the timetable prescribed by statute, such contention, if it be valid, is one of erroneous exercise of authority rather than of excess of jurisdiction, the prior use of the word "jurisdiction” in such a context to the contrary notwithstanding (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 381). The division is given jurisdiction by statute to investigate complaints of discrimination. Remedy for asserted error of law in the exercise of that jurisdiction or authority lies first in administrative review and following exhaustion of that remedy in subsequent judicial review pursuant to section 298 of the Executive Law. There is here tendered no predicate to warrant invocation of the "ancient and just” writ of prohibition (Matter of Board of Educ. v State Div. of Human Rights, 38 AD2d 245, affd 33 NY2d 946; cf. La Rocca v Lane, 37 NY2d 575).

In view of our conclusion that the Appellate Division properly determined that prohibition does not lie, we do not reach or consider the contentions of the parties as to the effect to be given the failure of the division to adhere to the statutory timetable.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


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    In the Matter of Hilda Lajara, Appellant, v Stephen Berger, as Acting Commissioner of the New York State Department of Social Services, et al., Respondents. In the Matter of Olga Rivera, Appellant, v Stephen Berger, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued March 29, 1978;
    decided May 10, 1978

      APPEARANCES OF COUNSEL

      Ralph Murphy, Lawrence Grosberg and John Falk for appellants.

      Robert Abrams, Attorney-General (Joseph F. Wagner, Samuel A. Hirshowitz and Herbert J. Wallenstein of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

In each case the determination of the Appellate Division should be modified, with costs to appellant, and the case remitted to Supreme Court, with directions to remand to the commissioner for a determination as to whether recoupment at the 10% rate will cause undue hardship.

The fair hearings on the welfare recipients’ claims were held in these cases and the commissioner’s determinations were made prior to the announcement of our decision in Matter of Reyes v Dumpson (40 NY2d 725). On the basis of that decision the Appellate Division has limited recoupment of the advances made to prevent eviction for nonpayment of rent under section 352.7 (g) (7) of the commissioner’s regulations (18 NYCRR 352.7 [g] [7]) to 10% of the household needs of the recipients. The commissioner concurs in the propriety of that limitation.

In Reyes, however, in holding that recoupment of advances made under section 352.7 (g) (7) is subject to the limitations set forth in section 352.31 (d) (4), we noted that, in addition to the ceiling of 10% of household needs (where there was a single recovery), section 352.31 (d) (4) requires a further determination, to be made on a case-by-case basis, that recoupment at the 10% rate will not cause undue hardship. In these cases, while the Appellate Division enforced the 10% limitation, there has been no determination in either that 10% recoupment will not cause undue hardship. Accordingly each case must be remanded for such a determination.

We reject the commissioner’s contention that there should be no such remand inasmuch as claimants have failed to make a record to support assertions of undue hardship. It was not clear at the time of the pre-Reyes fair hearings in these cases that recipients were entitled to undue hardship protection. Additionally, and perhaps of greater practical significance, because all recoupment has been stayed during the pendency of these proceedings and will commence only on their conclusion, a determination is now required that in the light of present benefits and current economic conditions, a 10% recoupment will not cause an undue hardship. One may surmise that a 10% deduction from benefits which might have been found acceptable in 1975 would not necessarily meet the standard in 1979 in view of the intervening inflation in the costs of living and the absence of parallel increases in welfare benefits.

We have examined appellants’ other contentions and conclude that there was no error of law in the denial of their claims for payments to correct prior alleged underpayments or in the denial of their claims for entitlement under the Emergency Assistance to Needy Families with Children Program (US Code, tit 42, §606, subd [e]; 45 CFR 233.120; Social Services Law, § 350-j; 18 NYCRR 372).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

In the Matter of Lajara v Berger: Order modified, with costs to petitioner, and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.

In the Matter of Rivera v Berger: Judgment modified, with costs to petitioner, and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Louis V. Verre et al., Appellants, v Jose Rosas, Respondent.
    Submitted March 30, 1979;
    decided May 10, 1979
    APPEARANCES OF COUNSEL

      Walter G. Evans and Eugene Guarneri for appellants.

      Francis J. Donovan for respondent.
   OPINION OF THE COURT

Memorandum.

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

Although plaintiffs satisfied the requirement that an affidavit of merit be submitted on an application to be relieved of their default, they offer no valid legal excuse for their delay. A summons was served just one week before the expiration of the three-year Statute of Limitations. Three and one-half months later defendants served a demand for a complaint. Plaintiffs ignored this demand for over 10 months and it was only when they were served with the present motion to dismiss that they were aroused to serve their pleading. As excuse for the default plaintiffs’ attorneys advance only the assertion that they are engaged mostly in defense practice and that "this plaintiffs file was inadvertently not timely diaried for a complaint”.

The absence of any reasonable excuse for plaintiffs’ delay is determinative; there is no requisite that prejudice be shown before a motion to dismiss is granted in a case of this nature. Accordingly we cannot say that it was error to grant defendant’s motion to dismiss the action as a matter of law.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in a memorandum.

Order affirmed.


text:
    Mortgagee Affiliates Corp. et al., Appellants, v Jerder Realty Services, Inc., et al., Defendants, and Murray Marcovitz, Respondent.
    Argued March 29, 1979;
    decided May 10, 1979

      APPEARANCES OF COUNSEL

      Martin I. Shelton and John B. Grant, Jr., for appellants.

      Julius Zizmor for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated by Mr. Justice Vincent D. Damiani in his opinion at the Appellate Division insofar as it relates to the defendant Murray Marcovitz. We would note, however, that when, as here, the statute (Real Property Actions and Proceedings Law, § 1371) and the show cause order expressly provide that the defendant be served within a specified time, unsuccessful attempts to locate the defendant in order to serve him within that period cannot be said to satisfy the requirements of the statute or the court’s order, even if the defendant had actual knowledge of the order or the plaintiffs alleged attempt to serve it.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed, with costs, in a memorandum.


text:
    Frances W. Hadersbeck, Appellant, v William D. Hadersbeck, Respondent.
    Submitted April 2, 1979;
    decided May 10, 1979
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the grounds that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]) and no substantial constitutional question is directly involved (CPLR 5601, subd [b], par 1). Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.


text:
    The People of the State of New York, Appellant, v Paul F. Voutsinas, Sr., Respondent.
    Argued April 30, 1979;
    decided May 10, 1979
   Appeal dismissed (see CPL 470.60, subd 3; People v Coppa, 45 NY2d 244, 247-248).


text:
    The People of the State of New York ex rel. Michael Boothe, Appellant, v David R. Harris, as Superintendent of Green Haven Correctional Facility, Respondent.
    Submitted April 2, 1979;
    decided May 10, 1979
   Motion for leave to appeal dismissed (CPLR 5602, subd [a], par 1, cl [i]; or CPL 450.90, subd 1).


text:
    The People of the State of New York, Appellant, v Harry Correa, Respondent.
    Argued April 27, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Claire Friedman of counsel), for appellant.

      Barry W. Agulnick for respondent.
   OPINION OF THE COURT

Order reversed for reasons stated in the dissenting memorandum by Mr. Justice James D. Hopkins at the Appellate Division (56 AD2d 935; see, also, People v McLaurin, 43 NY2d 902; and People v Kinlock, 43 NY2d 832), noting that if consent had been refused such fact should not be taken into consideration in determining whether there was probable cause; and the case remitted to the Appellate Division, Second Department, for review of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of Donna Mills, Appellant, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued April 25, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      Ivor R. Moskowitz and Bernard F. Ashe for appellant.

      Jean M. Coon, Robert D. Stone and James H. Whitney for Ewald B. Nyquist, respondent.

      Verner M. Ingram, Jr., Verner M. Ingram, Francis P. Cappello and Roger B. Linden for Board of Potsdam Central School District, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (63 AD2d 1060).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of Nancy G. Schlosser, Respondent, v Board of Education of the East Ramapo Central School District, Appellant. Sheri Alpert et al., Intervenors-Respondents; Cynthia Diamond et al., Intervenors-Appellants. In the Matter of Claire Greenwald et al., Respondents, v Board of Education of the East Ramapo Central School District et al., Appellants. Sheri Alpert et al., Intervenors-Respondents; Cynthia Diamond et al., Intervenors-Appellants. In the Matter of Ruth Elkind et al., Respondents, v Board of Education of the East Ramapo Central School District et al., Appellants. Sheri Alpert et al., Intervenors-Respondents; Cynthia Diamond et al., Intervenors-Appellants. In the Matter of Norma Kobb, Respondent, v Board of Education of the East Ramapo Central School District, Appellant. Sheri Alpert et al., Intervenors-Respondents; Cynthia Diamond et al., Intervenors-Appellants.
    Argued April 25, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      David Greenberg for appellants.

      Charles D. Maurer for intervenors-appellants.

      Eugene M. Kaufman for Nancy G. Schlosser and others, respondents.

      Stephen A. Perelson and Mark C. Rushñeld for Claire Greenwald and others, respondents.

      Joel L. Scheinert for Norma Kobb, respondent.

      Deborah A. Watarz and Paul E. Klein for intervenors-respondents.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs, for the reasons stated in the opinion by Mr. Justice James D. Hopkins at the Appellate Division, with a caveat. In light of our conclusion that the contractual provisions providing tenure rights to part-time teachers are not violative of any public policy or statute, we deem it unnecessary to reach and accordingly express no opinion as to the applicability, if any, of the statutory tenure scheme to such teachers. As to respondent’s belated attempt to object to petitioners’ alleged failure to comply with section 3813 of the Education Law, any such objection which might otherwise have been raised was waived by the failure to assert it before the court of original jurisdiction.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed, with costs, in a memorandum.


text:
    Eva Meyer, Individually and as Parent and Natural Guardian of Paul Meyer, Appellant, v City of Troy, Respondent.
    Argued April 27, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      Robert M. Jacon for appellant.

      Donald C. Bowes, Corporation Counsel (Donald J. Shanley of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (63 AD2d 757).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of Central Living, Inc., Appellant, v New York City Conciliation and Appeals Board, Respondent.
    Argued April 23, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      Daren A. Rathkopf for appellant.

      William E. Rosen and Ellis S. Franke for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (63 AD2d 606).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    The People of the State of New York, Appellant, v Angelo Quattrachi and Vincent Bilella, Respondents.
    Argued April 27, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      Thomas R. Sullivan, District Attorney (George E. Me Vay of counsel), for appellant.

      Myron G. Lasser and Anthony J. Crecca for respondents.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (63 AD2d 655).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of Irving Trust Company et al., Appellants, v President of the Borough of Manhattan of the City of New York et al., Respondents.
    Argued April 23, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      Meyer K. Sanoff and Norman Flitt for appellants.

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan of counsel), for Borough President of the Borough of Manhattan, respondent.

      J. Lawrence Blades and Alan M. Gelb for Orient Overseas Building Corp. and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

For many years the Borough President has exercised authority to approve applications by property owners for redesignation of building identifications as distinguished from changes of street names (Administrative Code of City of New York, § 82[3]-2.0). As in other instances of the exercise of such authority the change of designation here did not involve a street number within the literal language of the code. Nonetheless we agree with both courts below that the Borough President’s authority extends to changes in building designations, whether they be by street number of otherwise. In no view of the case can the change from ”88 Pine Street” to "Wall Street Plaza” be classified as involving a change of the name of a public street, authority for which is vested in the city council (Administrative Code of the City of New York, §§ B4-1.0 to B4-90.0).

Agreeing then, as we do, that the Borough President had authority to change the identification of this building, we find no predicate for concluding that the exercise of such authority in this instance was in violation of lawful procedure, was affected by an error of law, or was an abuse of discretion.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


text:
    Marvin S. Belsky, Appellant, v Ilona Lowenthal et al., Respondents.
    Argued April 24, 1979;
    decided May 31, 1979.

      APPEARANCES OF COUNSEL

      Lester J. Tanner, Anders R. Sterner and Lawrence S. Yee for appellant.

      Robert Markewich for respondents.
   OPINION OF THE COURT

Memorandum.

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

The first and third causes of action sounding in malicious prosecution were properly dismissed inasmuch as neither contains any allegation of interference with plaintiffs person or property (Drago v Buonagurio, 46 NY2d 778; Williams v Williams, 23 NY2d 592). The fourth cause of action, characterized by appellant in our court as alleging a claim for prima facie or intentional tort, was likewise properly dismissed by the Appellate Division for the reasons stated in the opinion of Mr. Justice Herbert B. Evans. (Cf. Drago v Buonagurio, supra; Fischer v Maloney, 43 NY2d 553, 557-558.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


text:
    In the Matter of Leonard Rosenblum, Appellant, v James A. Tully, Jr., et al., Constituting the State Tax Commission, Respondents.
    Argued April 26, 1979;
    decided May 31, 1979
    APPEARANCES OF COUNSEL

      Harvey M. Lifset for appellant.

      Robert Abrams, Attorney-General (George M. Thorpe and Jeremiah Jochnowitz of counsel), for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, inasmuch as there is substantial evidence in the record to support the determination of the commission.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    The People of the State of New York, Respondent, v Lenel Hutchinson, Appellant.
    Argued April 24, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      Barry C. Scheck and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Steven J. Greenblatt and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant and his companion were first seen by the police running into a busy intersection and frantically waving their arms and jumping in front of vehicles to stop either a passing car or taxicab. The police observed that the two men kept looking back towards the area they came from as they attempted to stop the cars. They soon succeeded in hailing a "gypsy” cab.

The officers had reason to suspect that the defendant and his companion were either victims or perpetrators of a recently committed crime by virtue of their hasty and singular manner of departure. Indeed the hearing court specifically found that the officers reasonably believed that the men were in distress.

As the officers in their car approached the cab to make inquiry, and while the cab was still moving, the defendant and his companion attempted to leave the cab but were unable to do so. The police then observed the defendant take off his coat and throw it toward and partially out of one of the open cab doors. Twice one of the police officers asked defendant’s companion what was happening and received no response; finally the companion said "Nothing, we didn’t do nothing.” The officer then picked up the coat which defendant had thrown partially out of the cab and was aware that one side was weighted. He touched the pocket and felt the outline of a gun which, it was subsequently determined, belonged to defendant.

We believe the Appellate Division was correct in its analysis that the stop by the police was permissible by virtue of the initial and frantic behavior of the defendant and his companion. The subsequent actions of the defendant in hastily exiting from the cab, in the throwing of his coat and the evasive answers of this companion provided police with further reason to pursue their search of defendant’s discarded jacket which resulted in the recovery of the weapon.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Samuel Vera, Appellant.
    Argued April 26, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      Edwin Ira Schulman for appellant.

      Eugene Gold, District Attorney (Reina Barcan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

It may be, as the District Attorney alleges in his brief, that the State and Federal indictments were the result of completely separate and independent investigations and that the Federal authorities were not informed of the sale which formed the basis of the State indictment. But whether the sale was alleged, proven or even known to the Federal authorities is of no consequence. If the sale was not actually a part of the Federal prosecutor’s case it was nevertheless an integral part of the crime to which the defendant pleaded because "conspiracy is an embracive crime. It embraces all of the overt acts and substantive crimes in the persisting criminal enterprise” (People v Abbamonte, 43 NY2d 74, 85). Thus the defendant’s conviction in Federal court for conspiracy to distribute cocaine precludes subsequent prosecution in this State for the sale which concededly was part of the conspiracy (CPL 40.20; People v Abbamonte, supra).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order reversed, etc.


text:
    John T. Stewart et al., Appellants, v Joel L. Scheinert et al., Respondents, et al., Defendants.
    Argued April 30, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      David Mac Rae Wagner and Robert G. Natelson for appellants.

      Marc L. Parris, County Attorney (Martin Hurwitz of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Section 51 of the General Municipal Law provides for personal liability of public officials who commit illegal acts in their official capacities "by collusion or otherwise”. We agree with the Appellate Division that under this statute personal liability arises only if the illegal acts were collusive, fraudulent, or motivated by personal gain (Daly v Haight, 170 App Div 469, affd 224 NY 726). Since there is no evidence in the record that the conduct of the defendant county legislators was of the nature contemplated by the statute, they may not be held personally liable for their allegedly wrongful acts. Having so held, we need not decide whether these acts, involving the use of county funds to produce and disseminate a pamphlet supporting adoption of a charter form of government, constituted an illegal waste of public funds. This is particularly true where it is the county legislature which is given the initiatory responsibility with respect to the subject legislation.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg, concur in memorandum.

Order affirmed.


text:
    Louis Di Bella, Appellant, v Maria L. Di Bella, Also Known as Maria L. Rivera, Respondent.
    Argued April 24, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      Michael M. Platzman and Louis Noah Forman for appellant.

      Murray Ramson for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed for the reasons stated in the memorandum of the Appellate Division. In addition, plaintiffs constitutional challenge to the statute on equal protection grounds, having been raised for the first time on this appeal, is not entitled to be reviewed by us. It has long been the settled rule that, unless a constitutional argument is properly raised for decision below, it will not be considered in this court (see National Organization for Women v State Div. of Human Rights, 32 NY2d 940; Cohen and Karger, Powers of the New York Court of Appeals, § 162, pp 630-631; § 169, p 641).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Van James, Appellant.
    Argued April 25, 1979;
    decided May 31, 1979

      APPEARANCES OF COUNSEL

      Erica Horwitz and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Jerrold Tannenbaum and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, motion to suppress granted, plea vacated and case remitted to Supreme Court, New York County, for further proceedings on the indictment for reasons stated in the dissenting memorandum by Mr. Justice Joseph P. Sullivan at the Appellate Division (64 AD2d 536-538).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    Nina Altman, Appellant, v IU International Corporation, Respondent, et al., Defendants.
    Submitted April 9, 1979;
    decided May 31, 1979
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Anthony Anastasio, Respondent, v Waterfront Commission of New York Harbor et al., Appellants.
    Decided May 31, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right (CPLR 5601).


text:
    In the Matter of Thomas L. Baasch, Appellant, v Supreme Court of the State of New York, Appellate Division, Second Judicial Department, et al., Respondents.
    Decided May 31, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous determination of the Appellate Division since no substantial constitutional question is directly involved.


text:
    In the Matter of the City of Amsterdam, Petitioner, v New York State Department of Transportation et al., Respondents. Edmund D. Calleo et al., Proposed Intervenors-Appellants.
    Submitted April 30, 1979;
    decided May 31, 1979
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied permission to intervene, dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    S. S. Silberblatt, Inc., Appellant, v American Pecco Corporation, Respondent, et al., Defendants.
    Submitted April 16, 1979;
    decided May 31, 1979
   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 (Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    Linda Stern, Respondent, v Michael Stern, Appellant.
    Submitted May 14, 1979;
    decided May 31, 1979
   Motion for a stay denied. Cross motion to dismiss the appeal denied.


text:
    Alfred Weissman et al., Respondents, v Dominick Di Noto, Appellant.
    Submitted April 30, 1979;
    decided May 31, 1979
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the Court of Appeals does not have power to entertain the motion (NY Const, art VI, § 3, subd b, par [7]).


text:
    The People of the State of New York ex rel. Gary King, by Steve Sandler, Appellant, v New York State Board of Parole et al., Respondents.
    Submitted April 23, 1979;
    decided May 31, 1979
   Motion for leave to withdraw appeal granted and appeal marked "withdrawn”.


text:
    University of Rochester, Respondent, v Wallace J. Wagner, as Assessor of the City of Rochester, et al., Appellants. (And Another Action.)
    Argued April 30, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Louis N. Kash, Corporation Counsel (James S. Grossman, Merwyn M. Kroll and Bette M. Gould of counsel), for appellants.

      G. Robert Witmer, Jr., John R. McQueen and Ruth B. Rosenberg for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice Reid S. Moule at the Appellate Division (63 AD2d 341).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of Arnold Weiss et al., Appellants, v Commissioner of the Office of Drug Abuse Services et al., Respondents.
    Argued May 2, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Robert D. Becker for appellants.

      Robert Abrams, Attorney-General (John Q. Driscoll and Jeremiah Jochnowitz of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (64 AD2d 768).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of Muriel Sturman, Doing Business as Dumont Nursing Home, Appellant, v Public Health Council et al., Respondents.
    Argued May 3, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Myron Beldock for appellant.

      Robert Abrams, Attorney-General (Arthur Patane and William J. Kogan of counsel), for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, on the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (58 AD2d 389). Application for a stay denied.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    The People of the State of New York, Respondent, v Cecilio Cruz, Appellant.
    Argued May 3, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Randolph Volkell and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Elyse Bohm of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s wife, who on direct examination had not testified as a character witness, was cross-examined regarding defendant’s prior criminal record. While this was concededly error, such questioning did not rise to the level of constitutional error depriving defendant of a fair trial. In such circumstances, and in view of the court’s efforts to give curative instructions, the overwhelming evidence against defendant, and the lack of significant probability of acquittal absent such testimony, this cross-examination constituted harmless error (People v Crimmins, 36 NY2d 230, 241-242).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Gary E. Bell, Appellant.
    Argued May 1, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Richard A. Kohn for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Not having raised the issue by motion to vacate or otherwise in the court of first instance, defendant’s contention that he should be relieved of his guilty plea has not been preserved for our review. (People v Warren, 47 NY2d 740; People v Adams, 46 NY2d 1047.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    In the Matter of American Management Associations, Respondent, v Assessor of the Town of Madison et al., Appellants, and Hamilton Central School District, Intervenor-Appellant. (And 25 Other Proceedings.)
    Argued April 30, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Leroy Hodge and Joe Schapiro for appellants.

      Frederick S. Dennin for respondent.

      Robert L. Beebe and Richard J. Sinnott for State Board of Equalization and Assessment, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (63 AD2d 1102).

Concur: Judges Jasen, Jones, Wachtler and Fuchsberg. Chief Judge Cooke and Judge Gabrielli dissent and vote to reverse for reasons stated in the dissenting memorandum by Mr. Justice Ellis J. Staley, Jr., at the Appellate Division (63 AD2d 1102, 1104-1106).