text:
    Mary Surdi, Appellant, v Jameco Operating Corp. et al., Respondents, et al., Defendants.
    Submitted April 17, 1978;
    decided May 11,1978
   Motions to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that no substantial constitutional question is directly involved, and upon the ground that the modification at the Appellate Division does not aggrieve appellant and is not substantial (CPLR 5601, subd [a], par [iii]) since Special Term, in its February 8, 1977 order on respondent Maspeth Federal Savings and Loan Association’s motion to renew, had previously dismissed plaintiff’s complaint as against Maspeth Federal Savings and Loan Association.


source: Caselaw Access Project

license: Public Domain

text:
    Connors-Haas, Inc., Appellant, v Board of Education of the City of Rochester et al., Respondents.
    Argued April 24, 1978;
    decided May 31, 1978

      APPEARANCES OF COUNSEL

      Percival D. Oviatt, Jr., for appellants.

      Louis N. Kash, Corporation Counsel (Joseph A. Regan of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

Order reversed, without costs, and order of Supreme Court granting plaintiff summary judgment reinstated. Plaintiff contractor and defendant city were entitled, unquestionably, to engage the Dean Company as a common agent (see Restatement, Agency 2d, § 392; 2 NY Jur, Agency, § 205). Indeed, according to the stipulation of agreed facts, the original proposal by Dean to plaintiff contemplated a common agency: Dean, with its own funds, was to purchase bonds on behalf of plaintiff and, in exchange for the cash retained by the city under the construction contract, deposit the bonds with the city (see, generally, General Municipal Law, § 106). Also according to the stipulation of agreed facts, however, the city subsequently changed the arrangement by designating Dean to hold, as well as purchase, the bonds. Having thereby extended the agency of Dean beyond the original arrangement, thus enabling Dean to convert the cash retainage to its own use, the city must bear the loss.

In an appropriate case it would be desirable, arguably, as commentators have suggested, to distribute equitably between principals the loss brought about by a common agent’s embezzlement (see Restatement, Agency 2d, § 313, Caveat, Comment on Caveat; Seavey, Embezzlement by Agent of two Principals: Contribution? 64 Harv L Rev 431, 433-436). But then the loss must arise from the agreed common agency, a conclusion the present stipulation of agreed facts does not permit.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Charles Conrad, Appellant.
    Argued April 28, 1978;
    decided May 31, 1978

      APPEARANCES OF COUNSEL

      Dan M. Walters for appellant.

      Lawrence T. Kurlander, District Attorney (Stephen M. Brent of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed on the opinion by Monroe County Judge Hyman T. Maas.

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


text:
    In the Matter of Metropolitan Bank of Syracuse, Respondent, v Department of Assessment of the City of Syracuse, Appellant.
    Argued April 28, 1978;
    decided May 31, 1978

      APPEARANCES OF COUNSEL

      David M. Garber, Corporation Counsel (Eleanor Theodore of counsel), for appellant.

      Charles E. Cooney, Jr., and Angela S. Cooney for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (57 AD2d 1055).

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


text:
    In the Matter of Sapolin Paints, Inc., et al., Respondents, v James H. Tully et al., Constituting the State Tax Commission, Appellants.
    Argued April 28, 1978;
    decided May 31, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Francis V Dow and Ruth Kessler Toch of counsel), for appellants.

      Robert F. Welch for respondents.
   OPINION OF THE COURT

Judgment modified, with costs to petitioners, and matter remitted to Supreme Court, Albany County, with directions to remand to the State Tax Commission for further proceedings in accordance with Matter of Montauk Improvement v Proccacino (41 NY2d 913) and, as so modified, affirmed.

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


text:
    The People of the State of New York, Respondent, v Angelo Garzia, Appellant. The People of the State of New York, Respondent, v Joanne Connolly, Appellant.
    Argued April 24, 1978;
    decided May 31, 1978

      APPEARANCES OF COUNSEL

      Richard S. Scanlan for appellants.

      Carl A. Vergari, District Attorney (Joseph Aviv and Anthony J. Severino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We cannot say that the Appellate Division erred as a matter of law in concluding that there was probable cause for the issuance of this search warrant. Proof was submitted to the issuing magistrate that an informer, without any marihuana on his person, had entered the premises in question in which one Basil Garzia resided, that the informer said that he had then purchased the alleged marihuana from Basil Garzia, and that the informer left the premises carrying a plastic bag which appeared on field examination to contain marihuana.

The source of this information was observations made by police officers of the Westchester County Sheriffs Office, not individually identified. For the protection of the informer, the day of the transaction was fixed with no greater particularity than to say that it occurred between the 3d and the 9th of July, 1975. The search warrant was issued and executed on the latter date.

While we agree with appellant that individual identification of the police observer or observers might have been preferable (as would have been specification of the date), such identification and verification of the proof would have been readily accessible to defendant — thereby to expose any fabrication of the evidence. Nor on any view was the proof stale. Again, we note the high desirability of the practice of obtaining warrants, and would, albeit reluctantly, rely on inferences reasonably to be drawn from an affidavit prepared by a draftsman concededly unskilled in legal matters to support conclusions reached at the Appellate Division.

The affidavits in this case provide no proper model, however, and similar occasions for litigation over inadequately or incompletely expressed ideas should be avoided.

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

Order affirmed.


text:
    Sterling National Bank & Trust Company of New York, Respondent, v Savings Banks Trust Company, Appellant, et al., Defendant.
    Argued April 27, 1978;
    decided May 31, 1978

      APPEARANCES OF COUNSEL

      David Burstein and Thorold J. Deyrup for appellant.

      Bertram Field, David M. Waldman and Jeffrey H. Zegen for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree that appellant breached its duty to respondent under the terms of their collection agreement when it failed to return the two checks erroneously sent to it. There is no merit to appellant’s contention that the provision of the applicable collection agreement requiring the prompt return of "missent” items refers exclusively to items eligible for presentment (i.e., those drawn on or payable at that bank) as distinguished from those physically capable of delivery to the receiving bank. We agree with both courts below that the term "missent” includes items neither drawn on nor payable to the signatory bank but mistakenly forwarded to that bank. Nor is there any substance to the further assertion that because it was the forwarding bank that made the initial mistake in forwarding the item to the wrong bank, the forwarder must be denied the benefit of the contract provision. To accept either argument would be effectively to render the contract provision nugatory.

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

Order affirmed.


text:
    Diesel Construction Company, a Division of Carl A. Morse, Inc., Appellant, v Chase Manhattan Mortgage and Realty Trust, Respondent.
    Argued April 24, 1978;
    decided May 31, 1978

      APPEARANCES of counsel

      Paul J. Bschorr and Burton T. Ryan for appellant.

      Robert A. Machleder for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 760).

Concur: Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Cooke. Taking no part: Chief Judge Breitel.


text:
    Barbara Barrett, Appellant, v State Mutual Life Assurance Company, Respondent.
    Argued April 25, 1978;
    decided May 31, 1978

      APPEARANCES OF COUNSEL

      Samuel Sherman and Leon Wasserman for appellant.

      William E. Kelly and C. Robert Prianti for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. We agree that the Appellate Division was not bound by its earlier determination, as the law of the case, because of the additional and persuasive evidence on the second trial. On the merits we find that the defendant was entitled to a directed verdict for the reasons stated in the Per Curiam opinion at the Appellate Division (58 AD2d 320; see, also, Process Plants Corp. v Beneficial Nat. Life Ins. Co., 42 NY2d 928, affg 53 AD2d 214).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Leon Harris, Appellant, v Justices of the Supreme Court, Kings County, Respondents.
    Argued April 26, 1977;
    decided May 31, 1978
    APPEARANCES OF COUNSEL

      David Otis Fuller, Jr., for appellant.

      Eugene Gold, District Attorney (Laura A. Brevetti and Richard A. Finkel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed. There is no merit to petitioner’s contention that retrial would violate double jeopardy principles and, thus, the application for an order prohibiting retrial was properly denied.

At the first trial petitioner and James Alonzo were tried together. Throughout the trial petitioner’s attorney repeatedly, but unsuccessfully, moved for a mistrial on various grounds. While the jury was deliberating Alonzo’s attorney also moved for a mistrial. The court then asked petitioner’s attorney if he joined in the motion to which the attorney responded "I stand on the record as it presently exists, Your Honor.” When repeatedly asked by the court to explain his response and inform the court as to whether he joined in the motion or did not, the petitioner’s attorney would only say that he had stated his position whereupon he was held in contempt. The court then questioned the prosecutor who stated that he had no objection to the motion for a mistrial and the motion was granted. Finally, after the court ordered that the jury be discharged, petitioner’s attorney objected to what had been done.

Thus before the mistrial was declared petitioner had not expressly objected and the court could reasonably have concluded that his attorney was willing to see the trial aborted since he stated that he stood on the record which was replete with his own requests for a mistrial. Under the circumstances it cannot be said that, in granting the motion, the court abused its discretion as a matter of law (Matter of Wiley v Couzens, 38 NY2d 731).

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

Judgment affirmed, without costs.


text:
    The People of the State of New York ex rel. John Bridges, Also Known as John Reynolds, Also Known as William Scott, Respondent, v Benjamin Malcolm, as Commissioner of the New York City Department of Corrections, Appellant, et al., Respondent.
    Argued April 25, 1978;
    decided May 31, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Laurence B. Jones and L. Kevin Sheridan of counsel), for appellant.

      Lewis I. Wolf for respondent.
   OPINION OF THE COURT

Memorandum.

When relator was arrested on September 27, 1974, there were three warrants outstanding against him — for a 1972 robbery, for a 1974 burglary, and for an unrelated 1974 misdemeanor. On November 25, 1974 he was sentenced to "time served” on the misdemeanor charge; on February 6, 1975 he received zero to three years on the robbery charge; on October 15, 1975 a sentence of one and a half to three years was imposed in satisfaction of the burglary charge (to run concurrently with the robbery sentence). When a prisoner is held under several charges, jail time must be credited against all of them until there is a commencement of imprisonment upon sentencing (Matter of Collins v Vincent, 42 NY2d 191, 200-202; Matter of Manning v Vincent, 37 NY2d 724). Thus the fact that the time already spent in custody was applied in full satisfaction of the sentence for the misdemeanor did not cause it to become a "previously imposed sentence” (Penal Law § 70.30, subd 3) so as to bar utilization of the days spent in custody between September 27 and November 25, 1974 as jail time credit against the robbery and burglary sentences as well (People ex rel. Davis v Arnette, 44 NY2d 877 [decided herewith]).

Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York ex rel. Karl Davis, Also Known as Alan Pickering, Respondent, v Jesse Arnette, as Superintendent of the Queensboro Correctional Facility, et al., Appellants.
    Argued April 25, 1978;
    decided May 31, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Laurence B. Jones and L. Kevin Sheridan of counsel), for appellants.

      Kenneth E. De Mario and Daniel J. Steinbock for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed.

Relator was arrested on a weapons charge on January 14, 1975 and still remained in custody on August 13, 1975. On that date he received a six-month sentence for a prior unrelated misdemeanor in connection with which a warrant had been lodged against him on January 20, 1975. Until August 13, 1975, no sentence on either charge having been imposed, no term of imprisonment can be said to have been commenced (Matter of Collins v Vincent, 42 NY2d 191, 200-202; Matter of Manning v Vincent, 37 NY2d 724).

Because of the time the relator had been held in custody by August 13, 1975, and after allowing for "good behavior time” (Penal Law § 70.30, subd 4), the six-month sentence for the misdemeanor was deemed to have already expired on June 10, 1975. Since, between January 20, 1975 and August 13, 1975 the relator was being held while awaiting the disposition of both charges, when, on April 19, 1976 a one and a half to three year’s sentence was imposed on the weapons charge, his 1975 jail time should have been credited to that sentence also. For, though already applied in complete satisfaction of the misdemeanor sentence, the jail time, not being a "previously imposed sentence” within the meaning of subdivision 3 of section 70.30 of the Penal Law (People ex rel. Bridges v Malcolm, 44 NY2d 875 [decided herewith]) was available for application towards the sentence imposed in the weapons case as well.

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

Order affirmed, without costs, in a memorandum.


text:
    R. Lyons Hickey, Inc., Appellant, v Commissioner of the Department of Rent and Housing Maintenance of the City of New York, Respondent.
    Argued May 1, 1978;
    decided May 31, 1978

      APPEARANCES OF COUNSEL

      Michael Mantell and Joel S. Sankel for appellant.

      Arthur Kass and Harry Michelson for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 773).

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


text:
    Evelyn R. Reisinger et al., Appellants, v Allstate Insurance Company, Respondent.
    Argued May 2,1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

      William E. McKnight for appellants.

      Walter Eves for respondent,
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 1028).

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


text:
    Bradley B. Davis et al., Appellants, v Ernest J. Williams et al., Respondents.
    Submitted May 1, 1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

      Bradley B. Davis, appellant pro se, and for Carol Rosenwald, appellant.

      Joseph D. Ahearn for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs.

The anonymous advertisement requesting persons with specified grievances against defendant Consolidated Edison Co. to make contact with plaintiff Davis, a lawyer, provided defendants with probable cause to request investigation by the Committee on Grievances of the Association of the Bar of the City of New York. The facts of justification for defendants’ actions, explicitly stated in the complaint, required dismissal of the complaint. None of plaintiffs’ purported causes of action may stand so long as defendants’ actions were justified. As the Appellate Division noted "no cause of action whatever has been spelled out, nor is anything shown in the motion papers demonstrating that it can be.”

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Samuel Rosa, Also Known as Shorty, Appellant.
    Argued April 25, 1978;
    decided June 6, 1978
    APPEARANCES OF COUNSEL

      Diana A. Steele and William E. Hellerstein for appellant.

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

Order affirmed on the memorandum at the Appellate Division (56 AD2d 820).

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


text:
    The People of the State of New York, Respondent, v Ronald Vaccaro, Appellant.
    Submitted April 24, 1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

      Arthur F. X. Henriksen and Otto F. Fusco for appellant.

      Carl A. Vergari, District Attorney (Joseph Aviv of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Although the elements of criminal possession of a weapon in the second and fourth degrees (Penal Law, §§ 265.03, 265.01) are identical in those circumstances where the culpable act is possession of a loaded firearm, the overlapping of elements does not render the statutes unconstitutional. (People v Eboli, 34 NY2d 281.) Since by statutory definition criminal possession of a weapon in the fourth degree is a lesser included offense of criminal possession of a weapon in the second degree (CPL 1.20, subd 37), the court correctly dismissed the charge of criminal possession of a weapon in the fourth degree because there was no "reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater.” (CPL 300.50, subd 1.)

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

Order affirmed in a memorandum.


text:
    In the Matter of the Claim of Reva Slotnick, Respondent, v Howard Stores Corp. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued May 2, 1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

      Alan R. Corn for appellants.

      Louis J. Lefkowitz, Attorney-General (Henriette Frieder, Ruth Kessler Toch and Daniel Polansky of counsel), for Workmen’s Compensation Board, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 959).

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


text:
    In the Matter of Alexander A. De Francis, Appellant, v Alphonse E. D’Ambrose, as Personnel Director of the City of New York and Chairman of the New York City Civil Service Commission, et al., Respondents.
    Argued May 4, 1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

      Roy Broudny for appellant.

      Allen G. Schwartz, Corporation Counsel (James P. Griffin and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (57 AD2d 804).

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


text:
    Board of Education of the New Paltz Central School District, Appellant, v New Paltz United Teachers, Respondent.
    Argued May 1, 1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

      Susanna E. Bedell, John M. Donoghue and Davis S. Shaw for appellant.

      Richard E. Casagrande and Bernard F. Ashe for respondent.
   OPINION OF THE COURT

Memorandum.

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

We have recently described the manner in which challenges to arbitration under agreements authorized by the Taylor Law (Civil Service Law, art 14) are to be resolved (Matter of Acting Superintendent of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509). Following that course we conclude that the application of the board of education to stay arbitration in this case was properly denied.

First, we reject as wholly without merit the contention of the board that it was foreclosed from submitting to arbitration any claim arising out of discontinuance of the school district’s prior practice of granting free tuition to the children of teachers in the school system who lived outside the school district, on the ground that that practice had been unconstitutional. There is no substance to the assertion that such practice was invalid as a denial of equal protection of the laws; there was a rational basis, despite the existence of grounds for disagreement with the wisdom of the practice, for treating children of nonresident teachers in the school system differently from the children of other nonresidents. Hence the subject matter of the controversy, involving lawful terms and conditions of employment, was within the permissible scope of arbitration under the Taylor Law.

Second, the particular arbitration agreement was a broad agreement extending to "any claimed violation, misinterpretation or inequitable application of the existing Professional Agreement”, and the union bases its claim on a provision of that agreement that "[a]ny District policies unaltered or unchanged by the language of this Agreement shall remain in force”. Accordingly we conclude that the authority granted the board under the Taylor Law was exercised in this instance and that the parties did agree by the terms of this particular arbitration clause to refer their differences in the specific area of this controversy to the arbitration forum.

This ends the judicial inquiry; resolution of the merits of the controversy must be left to arbitration (CPLR 7501).

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

Order affirmed.


text:
    Joseph V. Caltablano, Appellant, v State Bank of Long Island, Respondent.
    Submitted April 26, 1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

      Herbert Gordon for appellant.

      Gerald P. Rosenberg for respondent,
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (59 AD2d 752).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke. Taking no part: Judge Wachtler.


text:
    Nicholas Grello, Respondent, v Stanislaw Daszykowski, Defendant. Public Service Mutual Insurance Company, Appellant.
    Submitted May 1, 1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

      Nathan Cyperstein and James B. Reich for appellant.

      Norman H. Dachs for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the motion to vacate the workmen’s compensation lien denied.

We recently held in Matter of Granger v Urda (44 NY2d 91) that a workmen’s compensation carrier which has made payments for compensation and medical expenses to a claimant on a work-related injury may assert a lien against the proceeds of a judgment obtained by claimant against a third-party tort-feasor pursuant to article 18 of the Insurance Law. However since the claimant’s no-fault carrier was not a party to that proceeding, we did not reach or decide its liability to pay the claimant for amounts offset by the prior recovery of workmen’s compensation benefits. That poses no bar in this case since here the appellant also provided no-fault coverage. We therefore hold that if the workmen’s compensation carrier executes on the lien, the no-fault carrier must bear the loss because the amount recouped obviously cannot be offset as "amounts recovered or recoverable * * * under * * * laws providing * * * workmen’s compensation benefits” (Insurance Law, § 671, subd 2). We do not reach the question as to the ultimate rights of recoupment among the various carriers or parties themselves, we simply decide the rights and obligations of the parties now before us (Matter of Granger v Urda, supra).

Judges Gabrielli, Wachtler, Fuchsberg and Cooke concur in memorandum; Chief Judge Breitel and Judges Jasen and Jones concur in the memorandum and emphasize that, as they did in Matter of Granger v Urda (44 NY2d 91), they refrain from comment on or adjudication of the ultimate rights among the affected parties; and that, while it appears in this case that all such parties are technically before the court, cross claims among them were not asserted or tendered for judicial consideration or determination by the courts below.

Order reversed.


text:
    The People of the State of New York, Appellant, v Irving Ohlstein, Respondent.
    Argued May 2, 1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Richard H. Girgenti, Peter L. Zimroth and Robert M. Pitler of counsel), for appellant.

      Herald Price Fahringer and Barbara J. Davies for respondent.
   OPINION OF THE COURT

Order affirmed on the Per Curiam opinion at the Appellate Division (54 AD2d 109).

Concur: Chief Judge Breitel and Judges Jones, Wachtler and Fuchsberg. Judges Jasen, Gabrielli and Cooke dissent and vote to reverse on the dissenting opinion by Mr. Justice Harold Birns at the Appellate Division (54 AD2d,. at pp 114-118).


text:
    In the Matter of the Arbitration between Allstate Insurance Company, Respondent, and Ruth Frank et al., Appellants.
    Argued May 2, 1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

      Edward Wooster and Gerald P. Halpern for appellants.

      Philip H. Weinberg, Benjamin Purvin and John F. Morrison for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the order of Supreme Court, Nassau County, denying stay of arbitration reinstated (see Allstate Ins. Co. v Gross, 27 NY2d 263, 269-270).

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


text:
    In the Matter of Tony M., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted May 4, 1978;
    decided June 6, 1978

      APPEARANCES OF COUNSEL

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

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order should be reversed and the petition dismissed.

It is now settled that double jeopardy is applicable in juvenile proceedings (Breed v Jones, 421 US 519). That bar precludes appellate review of factual determinations which have been resolved in the accused’s favor by the original trier of facts (see United States v Ball, 163 US 662, 671; United States ex rel. Graham v Mancusi, 457 F2d 463, 469; cf. United States v Jenkins, 420 US 358, 366-367; People v Brown, 40 NY2d 381, cert den. 429 US 975). Thus, however it might have disagreed with it, the Appellate Division was bound by the Family Court’s determination that appellant was not guilty of robbery or assault. If appellant did not participate in or facilitate the robbery, there was insufficient proof on which to premise a finding that the defendant knew that the purse was stolen beyond that which had been offered in support of the unsuccessful prosecution on the robbery charge, or indeed that he had even taken possession of the purse. He could not be found guilty of acts which, if committed by an adult, would constitute the crime of criminal possession of stolen property.

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

Order reversed, without costs, and petition dismissed in a memorandum.


text:
    Frederick W. Cook et al., Respondents-Appellants, v City of Binghamton, Appellant-Respondent, et al., Defendants.
    Decided June 6, 1978
   Appeal and cross appeal transferred by the Court of Appeals sua sponte, to the Appellate Division, Third 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, § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    Leading Building Corporation, Respondent, v Joseph Segrete et al., Appellants.
    Decided June 6, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of the State of New York, by Louis J. Lefkowitz, as Attorney-General, Respondent, v ITM, Incorporated et al., Respondents, and Rubin Sterngass, Appellant.
    Submitted April 17,1978;
    decided June 6,1978
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from involves the exercise of discretion of a type not reviewable by the Court of Appeals.


text:
    Board of Education of Union Free School District No. 2, East Williston, Town of North Hempstead, Appellant, v New York State Division of Human Rights et al., on the Complaint of Susan Arluck, Respondents. Board of Education of Union Free School District No. 2, East Williston, Town of North Hempstead, Appellant, v New York State Division of Human Rights et al., on the Complaint of Rachel Curto, Respondents.
    Argued April 27, 1978;
    decided June 8, 1978

      APPEARANCES OF COUNSEL

      Gary N. Weintraub and Frank J. Faruolo, Jr., for appellant.

      Ann Thacher Anderson for State Division of Human Rights, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the motion to adjudge appellant in contempt dismissed.

Respondents, State Division of Human Rights and State Human Rights Appeal Board, seek to have appellant, board of education, held in contempt for violating an order of the Appellate Division- dated June 25, 1973 directing appellant, among other things, to cease and desist from discriminating against its employees on the basis of. sex. Although a motion to adjudge appellant in contempt might well be a proper means of attacking an alleged continued failure to obey that order, such a procedural vehicle is inappropriate where, as here, specific relief is sought for named individuals who were not parties to the proceeding out of which the order arose.

A claimant alleging an unlawful discriminatory practice under the State Human Rights Law has the option of filing a verified written complaint with the Human Rights Division (Executive Law, § 297, subd 1) or suing directly in a court of competent jurisdiction (Executive Law, § 297, subd 9). If the former course is followed, a verified written complaint "must be * * * filed [with the Human Rights Division] within one year after the alleged unlawful discriminatory practice.” (Executive Law, § 297, subd 5 [emphasis supplied].) This requirement should be regarded as a condition to be performed before the substantive right to the relief sought arises. Moreover, regardless of which course is pursued, in a case such as this where "only enforcement of private rights” as opposed to "vindication] [of] a public interest” is sought (Union Free School Dist. v New York State Human Rights Appeal Bd., 35 NY2d 371, 380), a verified written claim must be presented to the school board "within three months after the accrual of such claim” (Education Law, § 3813, subd 1). Noncompliance with this requirement likewise bars the right to the relief sought. Since none of the claimants have complied with either of the above statutory requirements, and since the prescribed time periods have expired, their claims are now barred and contempt does not lie.

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

Order reversed, etc.


text:
    In the Matter of New York City Department of Personnel, Respondent, v New York State Division of Human Rights, Appellant.
    Argued April 27, 1978;
    decided June 8, 1978

      APPEARANCES OF COUNSEL

      Elaine Berger and Ann Thacher Anderson for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Complainant did not file her complaint until after the list of eligibles from which she seeks appointment had expired. Hence, even though she might have been improperly passed over for appointment due to discrimination on the basis of age, she may not now seek appointment from that expired list (Matter of Cash v Bates, 301 NY 258, 261; Matter of Tanzosh v New York City Civ. Serv. Comm., 44 NY2d 906, decided herewith). This case is to be distinguished from one in which a proceeding to compel appointment is commenced prior to the expiration of the list (see Matter of Mena v D’Ambrose, 44 NY2d 428, decided May 11, 1978).

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

Order affirmed.


text:
    In the Matter of William Tanzosh, Appellant, v New York City Civil Service Commission et al., Respondents.
    Argued April 27, 1978;
    decided June 8, 1978

      APPEARANCES OF COUNSEL

      David Goldfarb, Marshall Green, Kalman Finkel, John Kirklin and Joan Mangones for appellant.

      Allen G. Schwartz, Corporation Counsel (Carolyn Demarest, Leonard Koerner and Ronald E. Sternberg of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Petitioner did not commence this article 78 proceeding seeking appointment until after the subject list of eligibles had expired. Accordingly, the courts may grant him neither appointment from that expired list (Matter of Cash v Bates, 301 NY 258, 261; Matter of New York City Dept. of Personnel v New York State Div. of Human Rights, 44 NY2d 907, decided herewith; cf. Matter of Mena v DAmbrose, 44 NY2d 428), nor the equivalent relief he now seeks of retroactive seniority in his subsequently obtained civil service position (cf. Matter of New York City Dept. of Personnel v New York State Div. of Human Rights, 58 AD2d 787, affd 44 NY2d 907, decided herewith). We express no view as to what would be the proper result had petitioner instead commenced a proceeding prior to the expiration of the list and that proceeding had been dismissed for a failure to exhaust his administrative remedies.

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

Order affirmed.


text:
    120 Bay Street Realty Corp., Appellant, v City of New York, Respondent.
    Argued May 1, 1978;
    decided June 8, 1978

      APPEARANCES OF COUNSEL

      Daniel Cohen for appellant.

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

Memorandum.

The order appealed from should be reversed, with costs, and summary judgment granted in favor of the plaintiff, declaring that defendant occupies the subject premises as a month-to-month tenant rather than as a tenant under a valid and existing lease. We find as a matter of law that the letter of June 2, 1975 was merely an expression of intent to exercise the option to renew the lease at some future time, and was not in and of itself an exercise of that option. Since no further steps were taken by defendant prior to the expiration of the option clause in the lease, the option was never exercised prior to its termination. In view of this conclusion, we do not reach any of the other issues argued by the parties.

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

Order reversed, with costs, and summary judgment granted in favor of plaintiff in accordance with the memorandum herein.


author: Wachtler, J.

text:
    In the Matter of Peninsula General Nursing Home, Respondent, v Jule M. Sugarman, as Commissioner of the Department of Social Services of the City of New York, Respondent, and Abe Lavine, as Commissioner of the Department of Social Services of the State of New York, et al., Appellants.
    Argued April 27, 1978;
    decided June 8, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Judith A. Gordon, Samuel A. Hirshowitz and Mark C. Rutzick of counsel), for appellants.

      Neil Goldman and John Sherman for petitioner-respondent.

      Charles Robert for Nassau Action Coalition, amicus curiae.

   OPINION OF THE COURT

Order reversed, with costs, and petition dismissed on the dissenting opinion by Mr. Justice Myles J. Lane at the Appellate Division (57 AD2d 268, 277-281; see also Matter of Wood v Fahey, 62 AD2d 86; contra Howe Ave. Nursing Home v Nafus, 54 AD2d 686, app dsmd 41 NY2d 901).

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

Wachtler, J.

(dissenting). I would affirm. The legal principles and reasoning articulated by Mr. Justice Lupiano for the majority at the Appellate Division as well as those set forth in Howe Ave. Nursing Home v Nafus (54 AD2d 686 [2d Dept]) are fully supportive of the conclusion that petitioner is entitled to a fair hearing as a matter of due process.

When a facility has met its obligation by providing services to an indigent, the failure of the indigent to challenge the denial of eligibility should not deprive the facility of the opportunity to review that determination. It seems totally irrational to preclude the provider, the real party in interest, from obtaining a fair hearing on the issue of whether the patient who is receiving care is eligible for medical benefits.

To suggest, as our court now does, that the facility can always resort to a plenary suit against the indigent patient seems an absurdity. As noted by the majority below this would be subversive of the legislative scheme set out in title 11 of the Social Welfare Law (L 1966, ch 256, eff April 30, 1966). The commencement of an action against an indigent patient determined ineligible, assuming this would have been reversed on a fair hearing, would require that patient — too impoverished to pay for medical assistance — to defend the lawsuit brought against him to recover the very charges he was too indigent to pay. The alternative available to the provider, of course, is to simply withdraw from participation in the medical assistance program by refusing services to indigent Medicaid applicants. This would be most unfortunate and destructive of the entire legislative purpose of the program.

Order reversed, etc.


text:
    Emery Roth & Sons, Appellant, v National Kinney Corporation et al., Respondents, and Richard Roth, Sr., et al., Appellants.
    Argued April 26, 1978;
    decided June 8, 1978

      APPEARANCES OF COUNSEL

      Jill C. Lesser, Michael A. Lacher and Joseph Heller for appellants.

      Colleen McMahon and Robert L. Laufer for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to the extent of providing that the third counterclaim be dismissed and, except as so modified, affirmed, with costs to appealing defendants. The question certified is answered in the negative.

In its third counterclaim, defendant seeks damages for counsel fees and other expenses incurred in connection with reobtaining possession of the demised premises, putting such premises in good order and preparing them for rerental. However, by failing to assert these claims in the prior summary proceeding based on nonpayment of rent, defendant has impermissibly split a cause of action and is barred from asserting them as a counterclaim in this action (930 Fifth Corp. v King, 42 NY2d 886, 887-888; Century Factors v New Plan Realty Corp., 41 NY2d 1040, 1041; Columbia Corrugated Container v Skyway Container Corp., 37 AD2d 845, affd 32 NY2d 818).

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

Order modified, with costs to appealing defendants, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.


text:
    A. Stephen Giannell, Appellant, v State of New York et al., Respondents.
    Submitted May 8, 1978;
    decided June 8, 1978
   Motion to dismiss the appeal herein granted to the extent that the appeal is transferred to the Appellate Division, Third Department, without costs, upon the ground that a direct appeal does not lie since questions other than the constitutional validity of a statutory provision are involved and no substantial constitutional question is involved (NY Const, art VI, § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    In the Matter of the Estate of Bernard Fiumara, Deceased. Bernard P. Fiumara, Appellant; Joseph Alesio et al., Respondents.
    Submitted May 8, 1978;
    decided June 8, 1978
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of the Estate of Harold H. Lefft, Deceased. Patricia Lenz et al., Appellants; Robert M. Leff, as Executor of Harold H. Lefft, Deceased, Respondent; In the Matter of the Estate of Harold H. Lefft, Deceased. Robert M. Leff, as Executor of Harold H. Lefft, Deceased, Respondent; Patricia Lenz et al., Appellants; Sheila Evans, Respondent.
    Argued April 25, 1978;
    decided June 13, 1978

      APPEARANCES OF COUNSEL

      Lloyd I. Isler and Sidney S. Rubin for appellants.

      Leon Malman for Robert M. Leff, respondent.

      Morris H. Halpern and Abraham J. Heller for Sheila Evans, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Although we agree with the result reached below, we find it necessary to add the following observations. Contrary to the conclusion of the Surrogate, we believe that the decedent, Harold Lefft, did create a valid trust. (See, generally, Brown v Spohr, 180 NY 201, 209; Matter of Frank, 52 AD2d 335, 338; Matter of Fontanella, 33 AD2d 29, 30; 1 Bogert, Trusts and Trustees [2d ed], § 1.) However, the life beneficiaries of that trust did not include appellants, the children of the decedent, but were limited to Harold and Geraldine Lefft. The only dispositive clause in the trust agreement provided that in the event of the sale of any property held in trust, Harold and Geraldine Lefft were to divide the proceeds equally. The decedent referred to appellants in the trust agreement only to state that "[i]t [was] the intention of Harold H. Lefft to retain said works of art for his children”. (Emphasis added.) Beyond stating his intention, however, the decedent never provided for any disposition, present or future, to appellants of either the trust corpus or proceeds derived from its sale.

Harold Lefft, as settlor, expressly reserved the power to revoke the trust with the consent of Geraldine Lefft and the third trustee, Silver. This he accomplished in a written separation agreement signed by himself and Geraldine Lefft, terminating the trust. Even were the consent of the third trustee held necessary to effectuate a revocation because of the unanimous consent provision in the trust agreement, the third trustee, absent proof to the contrary, must be deemed to have consented to the revocation by acting as Harold Lefft’s attorney in the separation action.

As to the competency of Geraldine Lefft to testify that the decedent made a gift of the paintings to appellants, it is our opinion that the Surrogate erred in holding Geraldine Lefft incompetent to testify because of the dead man’s statute (CPLR 4519). While it is true that Geraldine Lefft, by waiving her rights as a surviving spouse and creditor of the estate to any property that might be recovered by the estate from appellants, increased appellants’ share of the estate, she is not a person "from, through or under” whom appellant would take the contested paintings if her testimony were credited. In that event appellants would take the paintings by gift from the decedent and not through the estate, enlarged though it might have been by her waiver. (Cf. Loder v Whelpley, 111 NY 239; Matter of Wilson, 103 NY 374; Richardson, Evidence [10th ed], § 399.)

Although we view the Surrogate’s ruling on Geraldine Lefft’s competency to testify erroneous, we find it unnecessary to reverse and remand for consideration of her testimony. A gift must be established by clear and convincing proof. (Hemmerich v Union Dime Sav. Inst., 205 NY 366, 369; Matter of Kaminsky, 17 AD2d 690, app dsmd 12 NY2d 840.) In the present case, were Geraldine Lefft’s testimony accepted, appellants would have nonetheless failed to establish a gift because of the absence of proof of delivery. (Matter of Szabo, 10 NY2d 94, 98.)

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

Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate in a memorandum.


text:
    A. D. Walker & Co., Inc., Appellant, v Board of Education of Central School District No. 1 of the Towns of Mount Pleasant and North Castle, Defendant-Respondent and Third-Party Plaintiff-Respondent. Valridge Construction Corp., Third-Party Defendant-Respondent.
    Submitted May 3, 1978;
    decided June 13, 1978

      APPEARANCES OF COUNSEL

      Alan D. Singer for appellant.

      William F. Plunkett, Jr., for defendant-respondent.
   OPINION OF THE COURT

Memorandum.

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

In this motion to dismiss the complaint for failure to state a cause of action, treated as a motion for summary judgment, the proof submitted by appellant is insufficient, as a matter of law, to raise a triable issue of fact as to whether respondent, board of education, has waived or is estopped from asserting the defense that appellant has failed to serve a timely verified claim in accordance with subdivision 1 of section 3813 of the Education Law. Although respondent referred to appellant’s invoices as "claims”, respondent also stated that it would take no action until receiving advice from its attorney. Such communications, rather than waiving any rights or defenses, at least impliedly reserved them.

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

Order affirmed.


text:
    Lillian Spiegelberg et al., Appellants, v Aramis Gomez, as Commissioner of the Department of Relocation and Housing Maintenance, et al., Respondents.
    Argued May 2,1978;
    decided June 13, 1978
    APPEARANCES OF COUNSEL

      Peter M. Wendt and Nancy E. Le Blanc for appellants.

      Allen G. Schwartz, Corporation Counsel (Morris Einhorn and L. Kevin Sheridan of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs. Petitioners are residential tenants of premises which have been condemned by the city under exercise of the power of eminent domain on various dates between 1963 and 1970. Due to well-publicized and acknowledged city fiscal difficulties the properties have not been developed as originally planned but have remained residential under the control and maintenance of the city. The tenants’ rent has remained unchanged since title vesting, in some cases as long as 14 years and since the rents are totally inadequate to cover regular maintenance charges, the city notified the tenants of a rent increase.

Petitioners challenge the authority of the city to increase their rents above the level paid at the time of title vesting. Subdivision b of section B15-37.0 of the New York City Administrative Code provides that all persons in possession of condemned premises "at the time of the vesting of title thereto, shall at the option of the city become tenants at will of such city and shall, unless the parties otherwise agree in writing, pay the same rent in effect immediately prior to vesting of title”. This provision was enacted to establish an applicable rental at the time of title vesting in order to avoid an interim period during which tenants would remain in possession with no provision as to what, if any, rent they should pay. Prior to the enactment of this section the law had merely stated that such tenants at will were required to pay a reasonable rent, leaving open to dispute what constituted a reasonable rent in a given circumstance. Experience demonstrated that, pending the fixing of a reasonable rent, either judicially or by other means, the city incurred substantial rental losses, and section B15.37.0 (subd b) was enacted to prevent these losses by promptly fixing a rent at title vesting. No language in the Administrative Code expressly states that the rent in effect immediately prior to title vesting is to continue permanently or for any specific period of time. The present problem of being unable to complete the intended public purpose was not contemplated and therefore no time limitation was set. Since the statute fails to fix any duration period, it must be deemed to imply that the initial rents will remain in effect for a reasonable period of time. This reading of the statute is not only consistent with legislative intent (Abood v Hospital Ambulance Serv., 30 NY2d 295, 298; Matter of Meyer, 209 NY 386, 389-390), but also avoids an unreasonable and unintended, unnecessary result (Johanns v Ficke, 224 NY 513, 519). In the instances disclosed in the record in this case, the reasonable period contemplated by the Administrative Code has expired, and the city is no longer obligated to continue to accept the rent in effect immediately prior to vesting of title.

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

Order affirmed.


text:
    Robert Stigwood Organisation, Inc., Respondent, v Devon Company, Defendant, and Persky-Bright Productions, Inc., Appellant.
    Argued May 3, 1978;
    decided June 13, 1978

      APPEARANCES OF COUNSEL

      Elliott J. Solomon and A. Brian Savin for appellant.

      Thomas H. Baer and Dynda L. Andrews for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the stay of execution upon the partial summary judgment should be vacated.

The trial court, and thus the Appellate Division have wide discretion in imposing conditions upon the grant of partial summary judgment so as to avoid possible prejudice to the party against whom that judgment is granted (CPLR 3212, subd [e]). The device used in this case, a stay of execution pending resolution of the remaining claims and counterclaims, is an appropriate method of effectuating that objective (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:31, 3212:32). Such discretion, however, is not unlimited, and is to be exercised only if there exists some articulable reason for concluding that the failure to impose conditions might result in some prejudice, financial or otherwise, to the party against whom the partial summary judgment is granted should that party subsequently prevail on the unsettled claims (see Siegel, New York Practice, § 285). This is especially true where, as here, the counterclaims with respect to which partial summary judgment was granted are sufficiently independent of the plaintiff’s claim as to have allowed defendant to bring a separate action upon them had it so chosen (see Pease & Elliman v 926 Park Ave. Corp., 23 AD2d 361, affd without opn 17 NY2d 890).

The record in this case is completely bare of any indication that plaintiff would be in any way prejudiced if defendant is allowed to enforce its partial summary judgment. Under these circumstances, it was an abuse of discretion for the Appellate Division to impose a stay of execution upon that judgment.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur; Chief Judge Breitel taking no part.

Order, insofar as appealed from, reversed, with costs, and the stay of execution vacated in a memorandum.


text:
    The People of the State of New York, Respondent, v Hector Santiago, Appellant.
    Argued May 3, 1978;
    decided June 13, 1978

      APPEARANCES OF COUNSEL

      Lynn Fahey, William E. Hellerstein and William J. Gallagher for appellant.

      Robert M. Morgenthau, District Attorney (Ann Elizabeth Lewis and Peter L. Zimroth of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The asserted errors in the charge to the jury, if errors they were, have not been preserved by proper protest for our review. We find no error in the failure of the People to produce the informer-witness. The identity of the informer, who was not an eyewitness to the criminal transactions, was disclosed to defense counsel. His disappearance six months before trial had not been procured by the People, and the trial court found acceptable the efforts made by the People in response to defendant’s midtrial request that he be located.

We have examined defendant’s other contentions and find them to be without merit.

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

Order affirmed.


text:
    In the Matter of Jack A. Addesso, Individually and as Chairman of the Zoning Board of Appeals of the City of Mount Vernon, et al., Respondents, v Thomas E. Sharpe, as Mayor of the City of Mount Vernon, Appellant.
    Argued May 4,1978;
    decided June 13,1978

      APPEARANCES OF COUNSEL

      Ronald J. Meiselman, Corporation Counsel (Gregory P. Young and Daniel A. Nadborny of counsel), for appellant.

      Julius W. Cohn and Carl Stahl for respondents.
   OPINION OF THE COURT

Memorandum.

Having determined that the zoning board of appeals could no longer meet in closed session to deliberate on the evidence adduced at a public hearing on a variance application, the Mayor sought to remove the petitioners from office for "willfully and intentionally” disregarding the mandate of the newly enacted Open Meetings Law (L 1976, ch 511, eff Jan. 1, 1977). It is clear from the record, however, that the petitioners had met in executive session not in defiance of settled law but rather in the good faith belief that the proceeding was "quasi-judicial” in nature and was therefore exempt under the new law (Public Officers Law, §98, subd [a]). As was found by Special Term the board’s action was taken only after concluding that their right to deliberate in private remained intact under that exemption. The petitioners’ good faith was further exemplified by their continued efforts after the contested meeting to obtain legal opinions by the Attorney-General, the Corporation Counsel and the committee on public access to records regarding the legality of their action.

Under these circumstances we agree with the Appellate Division that the element of willfulness or wanton disregard for the new law’s mandate found by the Mayor was totally unsupported. For this reason it is unnecessary at this time to reach the broader issues presented under the "quasi-judicial” exemption of the Open Meetings Law.

The order of the Appellate Division should be affirmed.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Timothy Mitteager, Appellant.
    Argued April 28, 1978;
    decided June 13, 1978

      APPEARANCES OF COUNSEL

      Nancy S. Hobbs and William E. Hellerstein for appellant.

      Thomas R. Sullivan, District Attorney (George E. McVay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

There was sufficient proof to support defendant’s conviction of attempted burglary in the third degree. Defendant and another individual were observed within five feet of the doorway of a business building then closed for the night and located in a rather desolate area of Staten Island. They fled as the police approached, then hid across the street beneath a nearby car and were quickly apprehended. The officers next checked and found evidence of a breaking of the door of the premises. Based on the foregoing, there was ample circumstantial evidence from which the trier of the fact could infer that defendant and the person accompanying him were attempting a burglary of the building. In addition, the enumerated evidence was adequately independent of that relating to the possessory crimes so that the conviction, rendered by the trial court sitting without a jury, was not tainted by proof concerning possession of burglar’s tools and unlawful possession of radio devices, the convictions for the latter of which were reversed by the Appellate Division (see People v Almestica, 42 NY2d 222).

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

Order affirmed.


text:
    Created Gemstones, Inc., Appellant, v Union Carbide Corporation, Respondent.
    Submitted May 30,1978;
    decided June 13, 1978
   Motion for reargument granted and, on reargument, the decision and the order of this court dated May 11, 1978 are amended to read as follows: 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, insofar as it involves plaintiff’s causes of action, does not finally determine the action within the meaning of the Constitution and upon the further ground that with respect to the order appealed from, insofar as it involves defendant’s counterclaims, the dissent at the Appellate Division was not on a question of law in favor of appellant (CPLR 5601, subd [a], par [i]). Motion for a stay denied as unnecessary (CPLR 5519, subd [a], par 2). [See 44 NY2d 847.]


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 June 13, 1978
   Appeals from orders of Supreme Court, Nassau County, dated March 15, 1978 and March 22, 1978, transferred to the Appellate Division, Second Department, without costs and without determining whether all parts of the appeals are properly before the Appellate Division. Direct appeals do not lie since questions other than the constitutional validity of a statutory provision are involved and the March 22, 1978 order does not finally determine the proceeding (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    In the Matter of Margie Brissette, Appellant, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Submitted May 8, 1978;
    decided June 13, 1978
   Motion for leave to appeal dismissed as untimely (Schwartz v National Computer Corp., 38 NY2d 800; Matter of New York City Tr. Auth. v State Div. of Human Rights, 36 NY2d 872).


text:
    In the Matter of Eileen Bruso et al., Appellants, v Board of Education of the Clarkstown Central School District, Respondent.
    Submitted April 24, 1978;
    decided June 13, 1978
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601).


text:
    The People of the State of New York, Respondent, v Esther Dorta, Appellant.
    Submitted May 8, 1978;
    decided June 13, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed upon the ground that the appellant is not presently available to obey the mandate of the court in the event of an affirmance (see People ex rel. Mallin v Kuh, 38 NY2d 982; People v Del Rio, 14 NY2d 165; People v Genet, 59 NY 80).


text:
    The People of the State of New York, Respondent, v Irving Jerome Dunaway, Appellant.
    Submitted May 22, 1978;
    decided June 13, 1978
   Motion, treated as one for reargument, denied. [See 35 NY2d 741, 38 NY2d 812.]


text:
    The People of the State of New York, Appellant, v John J. Savino, Respondent.
    Submitted May 29, 1978;
    decided June 13, 1978
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended to read as follows: "Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein. All concur.” [See 44 NY2d 669.]


text:
    The People of the State of New York ex rel. Lawrence Brown, Appellant, v Eugene S. LeFevre, as Superintendent of Clinton Correctional Facility, Respondent.
    Submitted May 15, 1978;
    decided June 13, 1978
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground it does not lie as of right (CPLR 5601).


text:
    Maurice Willer, Respondent, v Arthur Cooperman, as Chairman of the Workmen’s Compensation Board of the State of New York, Appellant.
    Submitted May 22, 1978;
    decided June 13, 1978
   Motion for leave to appeal dismissed upon the ground that the nonfinal order sought to be appealed from was entered in an action, not a proceeding, and therefore is not one which comes within the provisions of CPLR 5602 (subd [a], par 2). (See, e.g., Ofenloch v Gaynor, 28 NY2d 806; Regenbogen v Rent Stabilization Assn. of N. Y. C., 31 NY2d 668.)


text:
    In the Matter of Barbara C. Gould, Appellant, v Joseph A. Hannan, Respondent.
    Argued May 5, 1978;
    decided June 15, 1978
    APPEARANCES OF COUNSEL

      Thomas F. Ryan for appellant.

      Burton I. Monasch and Arnold C. Stream for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, without costs. Dismissal under CPLR 5601 (subd [a], cl [iii]) is not required, for in this case the modification to deny increased child support raises points of law reviewable by the Court of Appeals: whether the marked increase in respondent father’s financial circumstances alone justifies disregard of the child support provisions in the separation agreement; and whether respondent father’s asserted failure to comply with certain provisions of the agreement entitles petitioner mother to seek the fixation of child support de novo.

True, by reason of the mother’s remarriage the child enjoys a higher standard of living than that provided in the separation agreement. So, too, by reason of the father’s present financial circumstances, it is likely that had the parents not divorced the child’s standard of living would likewise have improved. The concern with the future manifested in the meticulously detailed separation agreement is so pervasive, however, that it cannot be said that the change in the father’s circumstances in this case was so great as to be uncontemplated. Hence, the child support provisions in the agreement must govern. (See Matter of Boden v Boden, 42 NY2d 210, 213.)

Nor do the alleged breaches entitle the mother to repudiate the child support provisions in the separation agreement. Alleged failures to pay for music, art, and sports lessons or to make certain designations in a life insurance policy did not go to the heart of the arrangement, one intended to govern in all respects and for all relevant times the conduct of the parties in relation to their child. There is no contention that the father was delinquent in the basic child support payments, or that he failed to pay the child’s private day school tuition. Nor is there any contention that the mother suffered any noncompliance only because economic duress prevented her from rescinding or repudiating the agreement for substantial or total breach. (Cf. Restatement, Contracts, § 347, Comments b., e; 11 Williston, Contracts [3d ed], § 1292; Restatement, Contracts 2d [Tent Draft No. 8, 1973], § 268, subd [4], Comment d. While these authorities largely concern commercial transactions there is some analogy to the kind of agreement involved in this matrimonial context.) That is not to say, however, that in a proper proceeding enforcement of the breached provisions may not be sought. Concededly such enforcement was not sought in this proceeding.

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

Order affirmed.


text:
    Frank Fahey et al., Respondents, v County of Ontario et al., Defendants, and Sheriff of the County of Ontario, Appellant.
    Argued May 5, 1978;
    decided June 15, 1978

      APPEARANCES OF COUNSEL

      David G. Retchless, County Attorney (Max Cohen of counsel), for appellant.

      Michael R. McGee for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, appellant’s motion for leave to serve an amended answer granted, and the certified question answered in the negative.

Leave to amend the pleadings "shall be freely given” absent prejudice or surprise resulting directly from the delay. (CPLR 3025, subd [b]; Sindle v New York City Tr. Auth., 33 NY2d 293, 296-297.) Since the respondents cannot claim here such prejudice or surprise, the court below abused its discretion as a matter of law in denying appellant’s motion to amend the answer to plead the Statute of Limitations. (Murray v City of New York, 43 NY2d 400, 406.)

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant v Robert Jackson, Respondent.
    Argued May 5, 1978;
    decided June 15, 1978

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Thomas M. Russo of counsel), for appellant.

      David R. Kliegman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed.

By their verdict, the jury chose to discredit the testimony of the purse-snatching codefendant. True it is, of course, that the defendant did not physically participate in the actual purse-snatching, but the crucial question is whether the evidence sustains the jury’s verdict that defendant was guilty of aiding in the robbery because of his participation as the driver of the getaway car (Penal Law, § 20.00). The codefendants were seen to enter defendant’s car and, when the car immediately drove off, the codefendants promptly crouched down low in the back seat. More significantly, when the car was stopped the victim’s wallet was found on the front seat and the purse was jammed under the front seat. Thus, there was ample evidence to sustain the guilty verdict that defendant was a knowing accomplice.

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

Order reversed 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]) in a memorandum.


text:
    William J. Sokol, Respondent, v Estelle L. Sokol, Appellant.
    Argued May 5, 1978;
    decided June 15, 1978

      APPEARANCES OF COUNSEL

      S. A. Weingrad for appellant.

      Stephen Stackel and Leon E. Borden for respondent.
   OPINION OF THE COURT

Memorandum.

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

On this appeal challenging the Appellate Division’s reduction of child support, rather than pressing the more familiar contention that in ordering such reduction the court abused its discretion and made an erroneous determination on the facts before it, appellant wife here argues that there was not sufficient evidence before the trial court or the Appellate Division to make any determination as to the proper level of child support. We conclude that there is no merit to this contention. Similarly we reject appellant’s assertions that the present action for divorce was barred by laches on the part of respondent husband or by the disposition made in the prior action between the parties.

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

Order affirmed.


text:
    Cerrato, Sweeney & Cohn et al., Respondents-Appellants, v Midland Insurance Company et al., Respondents, and St. Paul Insurance Company, Appellant-Respondent.
    Argued April 25, 1978;
    decided June 15, 1978

      APPEARANCES OF COUNSEL

      Julius W. Cohn for respondents-appellants.

      Solomon M. Cheser for appellant-respondent.

      Richard C. Malone, John J. O’Donnell and Paul J. Clifford for Allstate Insurance Company, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by denying respondent Midland’s motion; the order should otherwise be affirmed and the certified question answered in the negative.

Crucial to the determination of this case is whether the $220,000 settlement was intended to include the claim for Blanche Mitchell’s medical expenses. Though Allstate’s New Jersey personal injury protection (no-fault) lien under section 39:6A-9 of the New Jersey Motor Vehicles and Traffic Law appears never to have been mentioned in the course of the discussions preceding the agreement to settle, on the entire record before us we agree with the Appellate Division that issues of fact remain.

It is not disputed that, in advance of the settlement, Midland, the primary liability carrier for the defendants in Mitchell’s negligence action, though served with a notice of lien for the medical expenses paid by Allstate, advised neither Mitchell, her attorneys nor St. Paul (the tort-feasors’ excess carrier) of its receipt. St. Paul, who, along with Midland, has been joined in the New Jersey arbitration proceeding in which Allstate is pursuing its subrogation rights (see Cirilli v Ohio Cas. Ins. Co., 72 NJ 380), is exposed thereby to a claim which may exceed $30,000, the sum Midland withheld from Mitchell. That sum was intended as an approximation of the amount of the lien, but in fact very well may reach or exceed $38,032.62, the amount of the expenditures itemized by Mitchell in her negligence action’s bill of particulars. In these circumstances, at this juncture it would be inappropriate to discharge Midland from liability either in whole or in part in the light of the plaintiffs’ assertions in their complaint against Midland, St. Paul’s cross claim against Midland and St. Paul’s counterclaim against the plaintiffs.

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

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


text:
    The People of the State of New York, Respondent, v Ronald Glenn Tucker, Appellant.
    Argued May 5,1978;
    decided June 15, 1978

      APPEARANCES OF COUNSEL

      Douglas P. Rutnick, Public Defender (Frank V. Bífera of counsel), for appellant.

      Sol Greenberg, District Attorney (Melissa L. Campbell of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and indictment dismissed on the dissenting memorandum by Mr. Justice Michael E. Sweeney at the Appellate Division (58 AD2d, at p 674).

Concur: Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke. Judge Jasen dissents and votes to affirm for the reasons stated in the memorandum by the majority at the Appellate Division (58 AD2d 673).


text:
    In the Matter of Jeanette P. Strongin, Respondent, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Appellants.
    Argued May 2, 1978;
    decided June 15, 1978

      APPEARANCES OF COUNSEL

      Louis H. J. Welch and Robert D. Stone for Commissioner of Education, appellant.

      Joseph R. Zibelli for Board of Education and another, appellants.

      Eugene M. Kaufman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the judgment of Special Term reinstated, without prejudice to an application by petitioner for back pay for the period of suspension to the time of discharge (see Matter of Bott v Board of Educ., 41 NY2d 265, 269; Matter of Meliti v Nyquist, 41 NY2d 183, 187-188; Matter of Jerry v Board of Educ., 35 NY2d 534, 543).

Petitioner, a tenured guidance counselor of the School District of the City of Mount Vernon, was charged with (1) "Inefficiency and Incompetency” and (2) "Insubordination, Neglect of Duty, and Conduct Unbecoming a Teacher” and was suspended on November 3, 1972, pursuant to subdivision 2 of section 3020-a of the Education Law, without pay pending a hearing on the charges and the final determination thereof (see L 1970, ch 717, eff July 1, 1970, as amd by L 1971, ch 703, eff July 1, 1971, and L 1973, ch 772, eff Sept. 1, 1973). There were three specifications in support of the first charge and nine as to the second. Following a lengthy hearing pursuant to said section, a hearing panel unanimously found that the charges against petitioner were unsubstantiated by the evidence presented, but the board of education thereafter determined that all of the charges and specifications were established by a preponderance of the credible evidence and discharged her. On November 28, 1973, the Commissioner 'of Education, upon an appeal to him, found no basis on which to set aside the board’s determination.

Petitioner then commenced this article 78 proceeding to annul the decision of the commissioner and the actions of the board of education. Special Term viewed the board’s determination as properly supported and dismissed the petition. The Appellate Division, however, found substantial evidence only as to the specifications of the first charge and as to specifications 3, 4 and 5 of the second charge and held that a finding of guilt as to those three specifications failed to support the board’s determination of guilt of the second charge. It modified the judgment so as to annul so much of the determination which found petitioner guilty of the second charge, reduced the penalty to a suspension of six months without pay, and remitted the matter to Special Term for a determination of the amount to be paid to petitioner in back salary, from the date of suspension to the date of reinstatement.

Petitioner was entitled to review the determination of the board either by appeal to the Commissioner of Education under article 7 of the Education Law or by a special proceeding under CPLR article 78 (Education Law, § 3020-a, subd 5). Instead of resorting to the courts in the first instance, petitioner chose to appeal to the commissioner, as she had a right to do, and having made that choice it is the commissioner’s decision upon that appeal that is to be reviewed here (Matter of Chapin v Board of Educ., 291 NY 241, 244, 245; Anken v Board of Educ., 42 AD2d 1031, 1032; Matter of Ross v Wilson, 284 App Div 522, 526; see Matter of Bokhair v Board of Educ., 43 NY2d 855).

By virtue of the amendment of section 310 of the Education Law in 1976 (L 1976, ch 857; see Governor’s Memorandum of Approval, NY Legis Ann, 1976, p 407), the test to be applied on this appeal is whether the commissioner’s determination, in supporting the board of education and in dismissing petitioner’s appeal to him, was arbitrary and capricious (Matter of Chauvel v Nyquist, 43 NY2d 48, 52). In view of the evidence supporting both charges and the serious nature of them, it cannot be said that the commissioner’s action was without rational basis and, therefore, it must be upheld (Matter of Pell v Board of Educ., 34 NY2d 222, 230-231).

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

Order reversed, without costs, and the judgment of Supreme Court, Albany County, reinstated without prejudice to an application by petitioner for back pay in accordance with the memorandum herein.

       By virtue of section 4 of chapter 82 of the Laws of 1977, effective April 15, 1977, several amendments to section 3020-a of the Education Law were enacted. Under subdivisions 4 and 5, as amended therein, the effect of the findings and recommendations of the hearing panel was altered materially.


text:
    In the Matter of the Claim of Anthony McGarry, Claimant, v Catapano & Grow Construction Co. et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workmen’s Compensation Board, Respondent.
    Argued April 27, 1978;
    decided June 15, 1978
    APPEARANCES OF COUNSEL

      John M. Cullen and George Cholet for appellant.

      William F. Fischer, Jr., for Catapano & Grow Construction Co. and another, respondents.
   OPINION OF THE COURT

Memorandum.

The Workmen’s Compensation Board considered this claim under a statute which provides that "testimony may be taken, either directly or through a referee and if an award is made it shall be against the special fund provided by this section” (Workmen’s Compensation Law, § 25-a, subd 1). The decision of the board, made following a hearing, that there had been no closing of the case and that liability was "that of the primary carrier, and not that of the Special Fund for Reopened Cases”, was final as to all questions of fact (Workmen’s Compensation Law, § 20), subject to judicial review only in the event there was no substantial evidence to support them (Matter of Bellini v Great Amer. Ind. Co., 299 NY 399, 403; Matter of Dennison v Peckham Rd. Corp., 295 NY 457, 461-462; Matter of Gilbert v Happy Hill Farm, 23 AD2d 931, mot for lv to app den 16 NY2d 484). Initially, the issue as to whether there had been a closing of the case was factual and we agree with the part of the Appellate Division opinion stating that the determination of the board that there had been no closing was not supported by substantial evidence.

The ultimate legal issue is the correctness of the board’s conclusion that the carrier’s failure to file a C-8 form (provided for under section 300.23 of the General Rules and Procedure of the Workmen’s Compensation Board, formerly rule 23) continued its liability. While generally the interpretation placed on a statute by the agency charged with its administration will be upheld if not irrational or unreasonable (cf. Matter of Union Free School Dist. v Nyquist, 38 NY2d 137, 142), nevertheless the ultimate question of law is subject to review in the courts (Matter of McCarter v La Rock, 240 NY 282, 285; Matter of Oddi v Cabaret Hurricane, 278 App Div 261, 264). On that distinction, the Appellate Division, it is concluded, was correct in not reading a requirement to file a C-8 form into section 25-a as a condition precedent to a closing of the case (see Matter of Casey v Hinkle Iron Works, 299 NY 382, 385; Matter of Dennett v Dennett Refrig. Equip., 38 AD2d 659, 660; see, also, Workmen’s Compensation Law, §§ 20, 23; Matter of Welz v Markel Serv., 270 App Div 15, 19).

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

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

Order affirmed, with costs, and order absolute directed against appellant on its stipulation in a memorandum.


text:
    Charles F. Day, Respondent, v Ronald G. Forbes, as City Manager of the City of Watertown, et al., Appellants.
    Submitted May 29, 1978;
    decided June 15, 1978
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from involves a question of discretion of the type not reviewable by the Court of Appeals.


text:
    The People of the State of New York, Appellant, v Paul Bryant, Respondent.
    Submitted May 29, 1978;
    decided June 15, 1978
   Motion to dismiss the appeal taken by appellant People herein denied.


text:
    William F. Palmer, Appellant, v New York State Department of Mental Hygiene et al., Respondents.
    Argued May 30, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      William F. Palmer, appellant pro se.

      Louis J. Lefkowitz, Attorney-General (Anne Marsha Tannenbaum and Samuel A. Hirshowitz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed, without costs. Although the time limit for challenges to involuntary commitment to a mental hospital does not begin to run until there has been "actual personal service of notice” on the patient, that rule was established in and is applicable to cases in which the patient seeks to prove that he is not, in fact, mentally ill or in need of commitment (see Matter of Coates, 9 NY2d 242, 252, app dsmd 368 US 34; cf. People ex rel. Stock v Terrence, 11 NY2d 362, app dsmd 371 US 206). Plaintiff, committed 25 years ago and released 23 Vi years ago, is no longer certified as mentally ill. Retrospective evaluation of his mental state 25 years ago would be difficult if not impossible. In addition, plaintiff can point to no concrete, as opposed to theoretical, disadvantages he now suffers as a result of his earlier commitment. And, while there may be incidental disabilities created under Federal law, in this State deprivation of rights by reason of receipt of services for a mental disability is now forbidden by statute (Mental Hygiene Law, § 33.01). Nothing the courts can do will change the fact that plaintiff was indeed treated for mental illness, whether the ground for such treatment was present or not. That burden is one he must always suffer even if his commitment was, in fact, tainted by procedural or substantive defects.

As for plaintiff’s additional prayer for relief, expungement of records generally is a matter of legislative concern, and no statute provides for the expungement sought (see Matter of Richard S. v City of New York, 32 NY2d 592, 595-596; cf. Matter of Molineux v Collins, 177 NY 395, 398-399). Instead, the Legislature has provided for sealing of records to protect patients from undue publication of certification and commitment (Mental Hygiene Law, § 15.31, subd [f|). Nor may statute or rule of law undo an event as if it had never occurred, whatever might be provided with respect to the expungement, destruction, or sealing of records of events. There are some consequences of wrongs, if that there were, which are irreversible.

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

Order affirmed.


text:
    City of Mount Vernon et al., Respondents, v State Board of Equalization and Assessment et al., Appellants. Town of Mount Pleasant, Respondent, v State Board of Equalization and Assessment et al., Appellants.
    Argued May 31, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Alan D. Gordon and Robert A. Machleder for Consolidated Edison Company of New York, Inc., appellant.

      Louis J. Lefkowitz, Attorney-General (Vernon Stuart, Ruth Kessler Toch and Joseph P. McCale of counsel), for State Board of Equalization and Assessment, appellant.

      Henry J. Smith and Gerald Nolan for respondents.
   OPINION OF THE COURT

Memorandum.

Order reversed, without costs, and the actions, more properly proceedings under CPLR article 78, dismissed. The issue is not one of standing; it is whether plaintiff municipalities have a justiciable cause of action. Article 7 of the Real Property Tax Law is the exclusive avenue for judicial review of real property tax assessments "unless otherwise provided by law” (Real Property Tax Law, § 700). Yet, neither article 7 nor any other statute authorizes a municipality to seek judicial review of a special franchise assessment made by the State Board of Equalization and Assessment. Plaintiffs’ attempt to circumvent article 7 by allegations that the challenged assessments are illegal is unavailing. All errors of undervaluation, or even overvaluation, result, in a sense, in illegal assessments. To permit an article 78 proceeding or a declaratory judgment action whenever such errors, however caused, are alleged would eviscerate the exclusivity provision of the Real Property Tax Law.

Moreover, permitting judicial proceedings by a municipality seeking an increase in the State board’s special franchise assessment could create a morass of conflicting judicial decisions. Any adjudication in a taxpayer’s article 7 proceeding against the State board to reduce a special franchise assessment is binding on the local assessors "as though they had been parties to the proceeding” (Real Property Tax Law, § 740, subd 3). Hence, a contrary adjudication in litigation between the State board and the municipality would produce either peculiar problems of collateral estoppel or else a judgment that could be of no practical effect.

To illustrate, an action or proceeding brought by a municipality against a State board might result in a determination that the property had been undervalued. But that determination, at least if the taxpayer were not made a party, could not bar a subsequent adjudication of overvaluation in an article 7 proceeding brought by the taxpayer against the State board. Such an adjudication is, by statute, made binding on the municipality, thus leaving the first adjudication without practical effect (Real Property Tax Law, § 740, subd 3). This difficulty, it might be argued, dubiously, could be mitigated in part by requiring joinder of the taxpayer in any proceeding by the municipality. Other problems, however, are not resolved by such a device. For instance, an adjudication in an article 7 proceeding that the State board’s assessment was correct, binding on the municipality by statute, might be a bar to the municipality’s contention in a separate proceeding that the property was undervalued, even though there was no opportunity to litigate that issue in the article 7 proceeding. The permutations are many, and the solutions, if there be any, not easily ascertained.

The short of the matter is that the Real Property Tax Law does not, it appears, contemplate or permit independent litigation over special franchise assessments between the local assessors and the State board. The State board performs functions with regard to special franchises that the local assessors themselves perform with regard to other real property. Disputes over the board’s assessments are to be resolved before final assessments are made, at hearings before the State board as provided by statute (Real Property Tax Law, §§ 610, 612). Plaintiffs in this case made no appearance at the hearing on the complaint of the taxpayer. Once the board made its final assessment, that assessment was to be treated as if the assessors had made it themselves, subject only to judicial review under article 7 at the instance of the taxpayer, but final as to the taxing entity, the municipality.

True, this conclusion leaves the State board’s final assessment of a special franchise effectively immune to attack for undervaluation, however great. But the potential for abuse is no greater than with other real property, where an assessment made by the local assessors is similarly insulated from attack for undervaluation. If, in justice, there be a need, and there appears to be, to eliminate this potential for abuse, the remedy is with the Legislature.

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

Order reversed, without costs, and the actions dismissed in a memorandum. Question certified answered in the negative.


text:
    In the Matter of Crossman Cadillac, Inc., Respondent, v Board of Assessors of the County of Nassau et al., Appellants.
    Argued June 1, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (Matthew A. Tedone and William S. Norden of counsel), for appellants.

      George B. Costigan, Jr., and Stephen G. Limmer for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs. The privately owned telephone system installed in petitioner’s business premises is not assessable as real property under section 102 (subd 12, par [d]) of the Real Property Tax Law, aimed principally at expanding the definition of real property with respect to utility companies (see Matter of Crystal v City of Syracuse, 47 AD2d 29, 31, affd 38 NY2d 883). The telephone system, which includes 26 telephone instruments, an apparatus cabinet, and 10 trunk relays, is removable without significant injury to the premises and is capable of reinstallation elsewhere. Hence, the movable equipment does not raise the issue reserved in the caveat in Matter of Crystal with reference to systems "incorporated as part of the real estate” (Matter of Crystal v City of Syracuse, 38 NY2d 883, affg 47 AD2d 29, supra; see Matter of Metropolitan Bank of Syracuse v Department of Assessment, 44 NY2d 864, affg on mem at 57 AD2d 1055). If equipment such as that involved in this case should be assessable as real property the remedy is legislative rather than by strained or distortive judicial decisional analysis.

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

Order affirmed.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property for a Project Known as York College Urban Renewal, Stage I, in the Borough of Queens. Allied Stores of New York, Inc., Appellant. In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property for a Project Known as York College Urban Renewal, Stage II, in the Borough of Queens. Allied Stores of New York, Inc., et al., Appellants.
    Argued June 5, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Alan Ditchik and Arthur A. Segall for appellants.

      Allen G. Schwartz, Corporation Counsel (Leonard Olarsch and Morris Einhorn of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs.

It is not necessary in this case to determine how rigid should be the standards of contiguity, unity of use, and unity of ownership in allowing to the owner or lessor of satellite property taken in eminent domain consequential damages sustained to adjacent principal property not involved in the taking. Even if those standards were to be extended, and perhaps in a proper case they might be, the occasion for such extension does not arise when, as in this case, the claimant was able by purchasing or leasing other properties to duplicate practicably the function previously served by the properties taken. It is not material that the replacement property was somewhat more costly, especially if it were a replacement of higher quality and value, inasmuch as the new acquisition remains an asset of the condemnee. It is evident that too flexible a standard would expose the condemnor unjustly to underwriting uncontrollable risks of business judgment and economic events of the future.

Concretely applied to this case, if in fact the claimant’s department store were deprived of any automobile parking facilities for its customers and employees, in this day of shifting of commerce away from urban commercial districts to less urban shopping centers, then an argument for consequential damages applying more flexible standards would have been presented. Since, however, claimant was able, practicably, even at some greater capital investment, to replace the parking lots with a parking garage even closer to its department store, the more traditional standards should apply.

The thoughtful dissenting opinion at the Appellate Division relied on authorities which in large measure involved takings which inferentially left the uninvolved property deprived of substantial economic value because of irreplaceable loss of satellite properties (see, e.g., Di Bacco v State of New York, 46 AD2d 461; Erly Realty Dev. v State of New York, 43 AD2d 301, 303-305; Guptill Holding Corp. v State of New York, 23 AD2d 434, mot for lv to app den 16 NY2d 484). That, as noted, was not the situation here.

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

Order affirmed.


text:
    In the Matter of the Arbitration between Triborough Bridge and Tunnel Authority, Appellant, and District Council 37 of the American Federation of State, County and Municipal Employees, AFL-CIO, et al., Respondents.
    Argued May 30, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Gerald H. Horowitz and Joseph Bulgatz for appellant.

      Judith P. Vladeck and Thomas M. Kennedy for respondents.
   OPINION OF THE COURT

Memorandum.

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

The question of whether the procedural requirements of the collective bargaining agreement for seeking arbitration were followed is for the arbitrator to resolve. (Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie Public School Teachers Assn.], 35 NY2d 599, 607). This principle applies regardless of whether the grievant took any action on the grievance prior to the expiration of the agreement where, as here, the grievance arose prior to the expiration of the agreement.

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

Order affirmed.


text:
    Daro Industries, Inc., et al., Respondents, v RAS Enterprises, Inc., et al., Appellants.
    Submitted June 5, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Herbert Monte Levy for appellants.

      William L. Finger and Stephanie Graff Stavin for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division. We would only add that the powers of a temporary receiver are limited to those enumerated in the appointing order. (CPLR 6401, subd [b].) Since the temporary receiver in this case was not expressly granted the power to sue for claims of the corporation arising before his appointment, that power is retained by the corporation.

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

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.


text:
    In the Matter of White Plains Properties Corp., Respondent, v Tax Assessor of the City of White Plains et al., Appellants. In the Matter of W. P. Properties Corp., Respondent, v Tax Assessor of the City of White Plains et al., Appellants.
    Argued June 7,1978;
    decided July 6,1978

      APPEARANCES OF COUNSEL

      Paul B. Bergins, Corporation Counsel (John P. MacArthur of counsel), for appellants.

      Frederick J. Martin and Hugh D. Fyfe for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 871).

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


text:
    In the Matter of Williams & Eberley, Inc., Respondent, v Kenneth I. E. MacLeod, as Commissioner of Health of Oneida County, et al., Appellants.
    Argued June 2,1978;
    decided July 6,1978

      APPEARANCES OF COUNSEL

      Donald E. Keinz, County Attorney (Stephen D. Gerling of counsel), for appellants.

      Richard O’C Kehoe for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 984).

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


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for Phase II of Stage III of the Fulton Park Urban Renewal Project, in the Borough of Brooklyn. Abraham Kerievsky et al., Doing Business as Thatford Cabinet Co., Respondents.
    Argued June 5, 1978;
    decided July 6, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (James P. GrifRn, L. Kevin Sheridan and Morris Einhorn of counsel), for appellant.

      M. Robert Goldstein for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (57 AD2d 954).

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