text:
    In the Matter of Clifford E. Wilson et al., Appellants, v New York City Board of Elections et al., Respondents. (And Another Proceeding.) In the Matter of Frank Sansivieri, Jr., et al., Appellants, v Board of Elections of the City of New York et al., Respondents. (And Another Proceeding.)
    Submitted September 3, 1986;
    decided September 9, 1986
   Motion for reargument of motions for leave to appeal granted and, upon reargument, decisions dated August 28, 1986 denying motions for leave to appeal adhered to. [See, 68 NY2d 605, 606.]


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Plato’s Cave Corporation, Appellant, v State Liquor Authority et al., Respondents.
    Decided September 11, 1986

      APPEARANCES OF COUNSEL

      Monroe I. Katcher, II, for appellant.

      Gloria M. Dabiri for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner argues that the State Liquor Authority (SLA) improperly relied upon definitions in the Penal Law in holding that it permitted "gambling” on its premises in violation of Alcoholic Beverage Control Law § 106 (6) and that the evidence was, in any event, insufficient to establish that it "suffered or permitted” gambling.

The first argument is predicated upon the fact that, although the Joker Poker machine played by the SLA investigator gave nothing else by way of a prize, it permitted a winning player to play additional games without charge. Alcoholic Beverage Control Law § 106 (6) does not define gambling, but Penal Law §225.00 (2) defines "gambling” as engaging in a contest of chance from which something of value is received. Section 225.00 (6) defines "something of value” as "any form of credit * * * involving * * * a privilege or playing at a game or scheme without charge”, and the award of a free play has been held gambling in violation of the Penal Law in a number of cases (People v Swartz, 282 NY 596; People v Antonelli, 17 AD2d 1033; People v Raziano, 268 App Div 798).

The Appellate Division’s conclusion was correct, therefore, unless reliance upon the Penal Law for the definition of gambling as used in the Alcoholic Beverage Control Law was improper. It has, however, long been held that statutes which relate to the same or to cognate subjects are in pari materia and to be construed together unless a contrary intent is clearly expressed by the Legislature (Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298, 304; Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 39 NY2d 1029, affg on opn at 79 Misc 2d 438; Betz v Horr, 276 NY 83, 88; McKinney’s Cons Laws of NY, Book 1, Statutes § 221). The Alcoholic Beverage Control Law contains no evidence of such a contrary intent, but petitioner argues that Penal Law § 5.10 (3) is such a proscription. We disagree, for both the language of that provision and its legislative history establish that the purpose of the subdivision was to make clear that notwithstanding provisions of the Penal Law other forms of prosecution or recovery continued to coexist and were not preempted.

The crux of petitioner’s "suffered or permitted” argument is that the only one in attendance when the SLA investigator played the machine was a barmaid and no evidence was presented to establish that she had supervisory or managerial authority. The evidence established, however, that petitioner’s license to maintain the machine on its premises was issued on April 6, 1983, that on December 1, 1983 the investigator obtained $10 in quarters from the barmaid to enable him to play the machine, and that when free play credit was won a light on the machine so indicating went on. From the licensing of the machine, its presence on the premises and the availability of quarters for use in playing it, the period of time (eight months) that the machine had been on the premises and the existence of the credit light on the machine, it may reasonably be inferred that petitioner’s managerial personnel were aware that free plays were provided and, therefore, that they "suffered or permitted” gambling.

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

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

      . It argues also that the penalty imposed was excessive. Because the second charge of permitting the premises to become disorderly was dismissed, the Appellate Division remitted to the Authority for imposition of a revised penalty. Therefore, the penalty issue is not properly before us. Nor, the Authority not having sought leave to appeal, do we consider its argument that the disorderly premises charge was improperly dismissed (Hecht v City of New York, 60 NY2d 57; see, Matter of City School Dist. v Tonawanda Educ. Assn., 64 NY2d 645).

      . To the extent that the dictum in Matter of WNEK Vending & Amusements Co. v City of Buffalo (107 Misc 2d 353) is to the contrary, it is not to be followed.

      . The staff notes of the Temporary State Commission on Revision of the Penal Law and Criminal Code (at 252) state that section 5.10 of the present Penal Law "substantially restates existing Penal Law §§ 23, 24, 37, 39 and 41.” Those provisions of the 1909 Penal Law maintained preexisting civil rights and remedies and other forms of remedy, civil or military, and made clear that the Penal Law did not affect criminal procedure. They had no bearing on whether provisions of the Penal Law were to be considered in construing statutes in pari materia.


text:
    In the Matter of Brown-Forman Distillers Corporation, Appellant, v State Liquor Authority, Respondent.
    Decided September 11, 1986

      APPEARANCES OF COUNSEL

      Macdonald Flinn for appellant.

      Robert Abrams, Attorney-General (August L. Fietkau of counsel), for respondent.
   OPINION OF THE COURT

Upon reargument, following remand by the Supreme Court of the United States, judgment reversed, with costs, and determination of the State Liquor Authority annulled (Brown-Forman Distillers Corp. v New York State Liq. Auth., 476 US —, 106 S Ct 2080).

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


text:
    Harold Crow, Respondent, v 83rd Street Associates et al., Appellants.
    Decided September 11, 1986
    APPEARANCES OF COUNSEL

      Jeffrey R. Metz for appellants.

      David Ng for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Special Term and the Appellate Division properly concluded that section 41 of the Omnibus Housing Act (L 1983, ch 403), which amended the New York City Rent Stabilization Law (Administrative Code of City of New York § YY51-3.0 [a] [1] [f]) does not alter the requirement of section 60 of the Code of the Rent Stabilization Association of New York City, Inc. (Rent Stabilization Code), that a landlord notify the tenant of the renewal or nonrenewal of a lease not more than 150 days and not less than 120 days prior to the expiration date. Section 41 of the Omnibus Housing Act does not purport to repeal or amend the notice requirement of section 60 of the Rent Stabilization Code. Indeed, section 9 of the Omnibus Housing Act also amended the New York City Rent Stabilization Law to provide expressly that the Rent Stabilization Code continue in force (Administrative Code § YY51-6.0 [b]). The two notice provisions in question, moreover, apply to different events and serve different purposes. Section 60 of the Rent Stabilization Code requires the landlord to give notice to the tenant of his intention to renew or not renew the tenant’s lease. The amended section YY51-3.0 (a) (1) (f) requires that a landlord give 30 days’ notice to a tenant of his intent to commence an action to recover possession of a rent-stabilized housing accommodation on the ground of nonprimary residence. The two notice provisions are not inconsistent. Section 41 of the Omnibus Housing Act, in amending the New York City Rent Stabilization Law, therefore, does not effect an implied repeal of the unrelated and different notice requirement of section 60 of the Rent Stabilization Code (see, Matter of Board of Educ. v Allen, 6 NY2d 127, 141-142; McKinney’s Cons Laws of NY, Book 1, Statutes § 391). Because the landlord failed to serve notice pursuant to section 60 of the Code, the tenant is entitled to a renewal lease by operation of sections 50 and 54 (E) of the Code (see, Elwick Ltd. v Howard, 65 NY2d 1006; Golub v Frank, 65 NY2d 900). Appellate Term and nisi prius decisions stating that the 1983 amendment eliminates the section 60 notice requirement (see, e.g., Continental Towers v Jahss, NYLJ, Oct. 10, 1985, p 11, col 2 [App Term, 1st Dept]; Warhit Real Estate v Krauss, 131 Misc 2d 429; Seagrave Establishment v Goldberg, 130 Misc 2d 467) should not be followed.

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

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


text:
    In the Matter of M. Danon et al., Appellants, v Department of Finance of the City of New York, Respondent.
    Decided September 11, 1986
   Judge Alexander taking no part.


text:
    Elena Skibinski, Appellant, v M. J. Raynes, Inc., Respondent.
    Submitted June 16, 1986;
    decided September 11, 1986
   Motion for leave to appeal dismissed upon the ground that this court does not have jurisdiction to entertain the motion (NY Const, art VI, § 3 [b] [6], [7]; CPLR 5602 [a] [1] [i]).


text:
    In the Matter of Craig V., Respondent, v Mia W., Appellant.
    Submitted August 18, 1986;
    decided September 11, 1986
   Motion for leave to appeal dismissed upon the ground that the order of Family Court sought to be appealed from does not finally determine the proceeding within the meaning of CPLR 5602 (a) (1) (ii). Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Appellant, v Sherman Morris, Respondent.
    Argued September 5, 1986;
    decided September 16, 1986
    APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Elizabeth Clifford of counsel), for appellant.

      Timothy W. DeJohn for respondent.
   OPINION OF THE COURT

Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]). The conviction of criminal possession of a weapon was reversed "on the law and as a matter of discretion in the interest of justice”. Reversal of the conviction of assault and dismissal of that count of the indictment, while termed a reversal "on the law”, was necessarily based on a determination of repugnancy of the verdict, an issue not preserved for review as a question of law (CPL 470.05 [2]).

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


text:
    In the Matter of Midan Restaurant, Inc., Respondent, v Morris Tarshis, as Director of the Bureau of Franchises, Board of Estimate of the City of New York, et al., Appellants.
    Decided September 16, 1986

      APPEARANCES OF COUNSEL

      Frederick. A. O. Schwarz, Jr., Corporation Counsel (Noreen M. Giusti of counsel), for appellants.

      John M. Barth for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the Board of Estimate reinstated.

Special Term erred in holding that the Board of Estimate’s denial of petitioner’s application to renew a revocable consent to operate an enclosed sidewalk cafe was arbitrary and capricious. Our reading of the applicable New York City Charter provisions indicates that it is only a community or borough board that is proscribed from considering issues other than land use impact in determining whether to approve an application for a revocable consent to operate a sidewalk cafe (NY City Charter § 366-a [b]). The Board of Estimate’s scope of review is broader and includes the authority to review the character and fitness of applicants seeking a revocable consent franchise (NY City Charter § 67 [4]; § 197-c [f]; cf. Abco Bus Co. v Macchiarola, 52 NY2d 938, revg for reasons stated in dissenting mem at App Div 75 AD2d 831, 833-834; Matter of Barton Trucking Corp. v O’Connell, 7 NY2d 299, 312).

The Board was entitled to conclude, on the basis of the information before it, that Thomas Lydon was at least a de facto corporate principal of Midan Restaurant, Inc. In addition to other evidence, a sidewalk cafe occupancy contract was signed by "Thomas Lydon, V.P.” for Midan Restaurant, Inc., and two checks were signed by Thomas Lydon on behalf of Midan Restaurant, Inc. There is also support in the record indicating that Thomas Lydon had been convicted of assaulting a tenant. This conviction, together with public hearing testimony pointing to the conclusion that Lydon was seeking to force tenants out of apartments, some of which were located in buildings adjoining the restaurant, provided the Board with a rational basis for denying the application to renew the revocable consent to operate the enclosed sidewalk cafe.

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

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


text:
    Fresh Pond Road Associates, Appellant, v Estate of James S. Schacht, Deceased, et al., Respondents.
    Submitted July 7, 1986;
    decided September 16, 1986
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division’s order dismissing the appeal taken from the order denying plaintiff’s motion for reargument dismissed upon the ground that it does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal from the balance of the Appellate Division’s order denied.


text:
    In the Matter of Thomas Larocco et al., Appellants, v Leslie C. Snyder, as Justice of the Supreme Court of the State of New York, Respondent.
    Submitted September 12, 1986;
    decided September 16, 1986
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Long Island Lighting Company, Respondent, v County of Suffolk et al., Appellants.
    Decided September 16, 1986
   Chief Judge Wachtler taking no part.


text:
    Milsay Leasing and Parking Corp., Appellant, v New York City Department of General Services et al., Respondents. (Action No. 1.) City of New York, Respondent, v Milsay Leasing and Parking Corporation et al., Appellants. (Action No. 2.)
    Decided September 16, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right pursuant to CPLR 5601 (d) to review a prior unanimous order of the Appellate Division [see, 111 AD2d 659] absent the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1), and upon the ground that the judgment appealed from does not finally determine the consolidated action within the meaning of the Constitution.


text:
    Anna Raschel, Also Known as Annemarie Raschel, Appellant, v Benito Rish, Respondent, et al., Defendant.
    Submitted June 23, 1986;
    decided September 16, 1986
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.


text:
    David Reeves, Appellant, v Manufacturers Hanover Trust Co. et al., Defendants, and Community Mutual Savings Bank of Southern New York, Also Known as Community Savings & Loan Association, et al., Respondents.
    Submitted July 7, 1986;
    decided September 16, 1986
   Motion for leave to appeal dismissed for failure to demonstrate the timeliness of the motion as required by section 500.11 (d) (1) (C) (22 NYCRR 500.11 [d] [1] [C]) of this court’s rules of practice. Motion for poor person relief dismissed as academic.


text:
    Charles R. Robinson, Respondent, v Mary L. Robinson, Appellant.
    Submitted August 18, 1986;
    decided September 16, 1986
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see, Lizza Indus. v Long Is. Light. Co., 36 NY2d 754; Behren v Papworth, 30 NY2d 532; Cohen and Karger, Powers of the New York Court of Appeals, at 81, 84-93).


text:
    In the Matter of James P. Shipp, Respondent, v Andrea Shipp, Appellant.
    Decided September 16, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right pursuant to CPLR 5601 (d) to review a prior unanimous order of the Appellate Division [see, Shipp v Gaglia, 97 AD2d 945] absent the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    In the Matter of Walkbroadway Realty, Inc., Appellant, v New York City Board of Standards and Appeals, Respondent.
    Submitted June 23, 1986;
    decided September 16, 1986
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Charles M. Ward, Appellant, v Dolores J. Ward, Respondent.
    Decided September 16, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right pursuant to CPLR 5601 (d) to review a prior unanimous order of the Appellate Division [see, 101 AD2d 1006] absent the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, §1).


text:
    In the Matter of Franklin C. D’Ornellas, Jr., Respondent, v Juan U. Ortiz, as Personnel Director of the Department of Personnel of the City of New York, et al., Appellants, et al., Respondents.
    Decided September 18, 1986
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the judgment appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Jeffrey Witherspoon, Appellant.
    Argued September 8, 1986;
    decided September 18, 1986
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]). The reversal, while termed one "on the law”, was necessarily a determination by the Appellate Division of a mixed question of law and fact.


text:
    Mary Sansiviero, Appellant, v Alan Sanders, Defendant, and Richard G. Lawless, Respondent.
    Submitted July 14, 1986;
    decided September 18, 1986
   Motion for leave to appeal dismissed for failure to demonstrate timeliness of the motion as required by section 500.11 (d) (1) (C) of this court’s rules of practice (22 NYCRR 500.11 [d] [1] [C]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Jerome D. Cohen.
    Decided October 6, 1986
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Jerome D. Cohen is suspended, with pay, effective immediately, from his office of Justice of the Supreme Court of the State of New York, Second Judicial District, pursuant to NY Constitution, article VI, § 22 (f), (g) and Judiciary Law § 44 (8) (b), (c).

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


text:
    Cristo Brothers, Inc., Appellant, v Troy Urban Renewal Agency, Defendant, and City of Troy et al., Respondents.
    Argued September 2, 1986;
    decided October 7, 1986

      APPEARANCES OF COUNSEL

      Eugene R. Spada for appellant.

      John D. Chestara, Corporation Counsel (Donald J. Shanley of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (116 AD2d 793).

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


text:
    In the Matter of AT&T Information Systems, Inc., Respondent, v William J. Donohue, as Commissioner of Commerce of the State of New York, et al., Appellants.
    Argued September 4, 1986;
    decided October 7, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Wayne L. Benjamin, O. Peter Sherwood and Peter H. Schiff of counsel), for appellants.

      Stuart A. Summit and Ira G. Greenberg for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and judgment of Supreme Court, Albany County, reinstated for the reasons stated in the dissenting opinion of Justice Paul J. Yesawich, Jr., at the Appellate Division (113 AD2d 395, 400-402).

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


text:
    In the Matter of Lawrence L. Rater.
    Decided October 7, 1986
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Lawrence L. Rater is suspended, with pay, effective immediately, from his office of Justice of the Sherman Town Court, Chautauqua County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    Robert D. Zona, as Administrator of the Estate of Margaret P. Zona, Deceased, and as Legal Guardian of Amy Zona, an Infant, Plaintiff, v Oatka Restaurant and Lounge, Inc., Defendant and Third-Party Plaintiff-Appellant. Robert, D. Zona, as Administrator of the Estate of Thomas P. Zona, Deceased, Third-Party Defendant-Respondent.
    Argued September 4, 1986;
    decided October 7, 1986

      APPEARANCES OF COUNSEL

      Charles A. Hall for appellant.

      Thomas G. Collins for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the third-party defendant’s motion to dismiss the third-party complaint should be denied.

The policy of the law, as declared by the Legislature in CPLR 1401, is to allow contribution "unless it is clear that the legislative policy which led to the passage of the statute would be frustrated by the granting of contribution in favor of the person who violated the statute” (12th Ann Rep of NY Judicial Conference on CPLR, reprinted in 20th Ann Rep of NY Judicial Conference, 1975, at 216, and in 1974 McKinney’s Session Laws of NY, at 1808). Contribution from a vendee to a vendor for injury to a third person does not violate the Dram Shop Act (General Obligations Law § 11-101) (Herrick v Second Outhouse, 64 NY2d 692, affg 100 AD2d 952; Smith v Guli, 106 AD2d 120; Weinheimer v Hoffman, 97 AD2d 314). Nor is it violative of the policy of that act to allow contribution from the estate of a vendee who dies after the accident as to causes of action for the pain and suffering of a deceased injured person and the loss of means of support of her daughter, notwithstanding that the deceased vendee was the husband of the deceased injured person and the father of the means-of-support plaintiff. Although allowing contribution may reduce the total dollars otherwise available to the daughter of the vendee, that stems from the fortuitous circumstance of his later death, and because it is indirect does not violate the policy of the Dram Shop Act.

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

Order reversed, etc.


text:
    Vincent R. Valicenti, Individually and as Parent and Natural Guardian of Margaret Valicenti and Others, Infants, Respondents, v Albert M. Valenze and Another, Doing Business as the Brass Ring, Appellants.
    Argued September 4, 1986;
    decided October 7, 1986

      APPEARANCES OF COUNSEL

      Nathaniel F. Knappen for appellants.

      Peter C. Buckley for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to grant defendants’ motion for summary judgment to the extent of dismissing the claim for "economic” loss of consortium, and as so modified, affirmed, with costs to appellant.

Plaintiff’s wife, Judy H. Valicenti, was killed in an automobile accident while driving home from the defendants’ bar in the City of Elmira. Plaintiff’s complaint, in a single cause of action, sought recovery on behalf of himself and his minor children for Mrs. Valicenti’s death under two theories. First, it alleged negligence by defendants for their sale of alcoholic beverages to decedent "in that they knew or should have known that [she] was intoxicated and under the influence of intoxicating liquors at the time.” Second, the complaint sought recovery under the Dram Shop Act (General Obligations Law § 11-101) for their loss of "support, maintenance, care, nurture, love, guidance, training and education.” Defendants subsequently moved for summary judgment, relief that was denied by Special Term. The Appellate Division modified by dismissing plaintiff’s negligence cause of action and so much of plaintiff’s claim as sought noneconomic damages for loss of consortium under the Dram Shop Act.

Defendants’ principal contention was that no factual question of the husband’s or children’s loss of "means of support” had been raised because the deceased left her family about 11 months before her death and had been supported during that time, at least in part, by her husband. Indeed, defendants argued, decedent’s excessive life-style had caused a drain on the family’s financial resources. Alternatively, defendants sought partial summary judgment by striking that part of the plaintiffs’ complaint claiming damages for loss of parental consortium. Plaintiff responded to the motion with evidence of decedent’s earnings before her death and her potential earnings in the future as a real estate salesperson. He also alleged her strong interest in the training and education of the children to support his claim that she would have undertaken full employment in the future and contributed to the financial support of the children, had she lived.

Defendants contend that in order to maintain an action under the Dram Shop Act, a plaintiff must show that in consequence of the intoxication or the acts of the intoxicated person, the plaintiff has suffered a diminution in the actual support he or she was receiving at the time of the injury, and that such a diminution has reduced the plaintiff to a state of dependence. The statute was originally entitled "An Act to suppress intemperance, pauperism and crime” (L 1873, ch 646) and in an early case, relying heavily on that expressed legislative purpose, we construed its provisions narrowly (see, Volans v Owen, 74 NY 526, 530). Subsequently, however, the statute’s title was changed by the Legislature, it is now entitled "Compensation for injury caused by the illegal sale of intoxicating liquor” (emphasis added), and we recognized that the Legislature, by creating a new cause of action through the Dram Shop Act, did not alter the rules concerning recovery "but left them subject to the existing rules of damages, and to the facts established upon the trial” (Reid v Terwilliger, 116 NY 530, 533-534). Under those rules, as the Appellate Division correctly held, the husband and children in this case are entitled to have the jury weigh all the direct and inferential evidence relating to their loss of "means of support”. The jury may consider both the evidence of the support decedent provided to the plaintiffs before her death and evidence of the support the plaintiffs could reasonably have expected but for her death (see, Matalavage v Sadler, 77 AD2d 39, 44; Scatorchia v Caputo, 263 App Div 304, 305; Peters v Baron, 204 Misc 422; Didocha v State of New York, 54 AD2d 786 [wrongful death]; cf. McNally v Addis, 65 Misc 2d 204).

The order must be modified, however, because, as the concurring Justice at the Appellate Division noted, the phrase "or otherwise” in the Dram Shop Act does not include damages resulting from loss of consortium, either economic loss or noneconomic loss. Loss of consortium is not allowed under the common law (De Angelis v Lutheran Med. Center, 58 NY2d 1053) and "[i]f a change should be made, it is for the Legislature, and not the courts, to make” (Liff v Schildkrout, 49 NY2d 622, 634).

Because the Appellate Division erred by not dismissing so much of the complaint as sought "economic” loss of consortium damages under the Dram Shop Act, we answer the question certified to us in the affirmative.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to appellants. Question certified answered in the affirmative.


text:
    The People of the State of New York, Respondent, v Vincent D. Cardone, Appellant.
    Argued September 3, 1986;
    decided October 7, 1986

      APPEARANCES OF COUNSEL

      Charles R. Katz and Richard L. Baumgarten for appellant.

      Robert C. Noonan, Special Prosecutor, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be affirmed.

We agree that the Trial Judge did not err in refusing to charge the defense of justification pursuant to Penal Law § 35.05 (1). That statute provides in part that conduct which would otherwise constitute an offense is justifiable and not criminal when "[s]uch conduct is required or authorized by law or by a judicial decree”. Defendant’s belief that his conduct was authorized does not warrant submission of a justification charge to the jury (compare, Model Penal Code §3.03 [3] [a]).

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

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Donald Cook, Appellant.
    Argued September 5, 1986;
    decided October 7, 1986

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Janet C. Somes of counsel), for appellant.

      Howard R. Relin, District Attorney (Melvin Bressler and Michael J. Nelson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The officers’ observations upon arriving at the scene were sufficient to sustain the finding below of probable cause. Inasmuch as that finding has support in the record, further review is beyond our power (see, People v Harrison, 57 NY2d 470, 477-478).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Ronald Benedict, Appellant.
    Argued September 3, 1986;
    decided October 7, 1986

      APPEARANCES OF COUNSEL

      Albert J. Millus, Jr., for appellant.

      Patrick H. Matthews, District Attorney (Rita Connerton of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. The only issue raised by appellant cannot be reviewed by this court because not preserved (CPL 470.05 [2]).

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


text:
    Wolf Street Supermarkets, Inc., Doing Business as Jim’s Big M, Appellant-Respondent, v Francis McPartland et al., Respondents-Appellants.
    Submitted August 18, 1986;
    decided October 7, 1986
   Motion and cross motion for leave to appeal dismissed (Parker v Rogerson, 35 NY2d 751).


text:
    Manhattan & Queens Fuel Corp., Respondent, v County of Nassau, Appellant.
    Argued September 9, 1986;
    decided October 9, 1986

      APPEARANCES OF COUNSEL

      Edward, T. O’Brien, Acting County Attorney (Robert O. Boyhan of counsel), for appellant.

      Carl S. Levine and Kenneth L. Robinson for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by the late Justice David T. Gibbons at the Appellate Division (113 AD2d 595). Question certified answered in the affirmative.

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


text:
    Town of Tonawanda et al., Appellants, v Merilyn H. Ayler et al., Respondents.
    Argued September 10, 1986;
    decided October 9, 1986

      APPEARANCES OF COUNSEL

      Peter D. Cook, Town Attorney, for appellants.

      Lewis B. Oliver, Jr., and Harriet B. Oliver for respondents.

      Robert Abrams, Attorney-General (John Q. Driscoll, O. Peter Sherwood and Peter H. Schiff of counsel), in his statutory capacity under Executive Law § 71.
   OPINION OF THE COURT

Memorandum.

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

As we have many times declared, classifications made by taxing statutes do not require precise, scientific uniformity, are presumed constitutional, and will be upheld if rationally related to a legitimate governmental purpose and though uneven in application are not palpably arbitrary (Trump v Chu, 65 NY2d 20; Foss v City of Rochester, 65 NY2d 247; Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529).

Here there can be no question that the differentiation between owners of one-, two- and three-family residences and other property owners is rationally related to a legitimate governmental purpose. As noted in the sponsor’s memorandum and in the Governor’s approval message, prior to enactment of title 1-A of the Real Property Tax Law the procedure for review of tax assessments was so complex and expensive as to be prohibitive for the owners of such properties, thus imposing upon them an undue burden (1981 NY Legis Ann, at 528-529).

Nor can it be said that the classification results in a differentiation that is arbitrary. It establishes a small claims procedure which is limited to those seeking a reduction not in excess of $750 (RPTL 730 [1]), and while it provides for the preparation by the State Board of Equalization and Assessment of a residential assessment ratio (RPTL 738) which is not used in other than small claims review proceedings, the same data may be presented by taxpayers involved in such other proceedings. Just as the restriction in Matter of Colt Indus. v Finance Administrator (54 NY2d 533) based on population and geographic area was not violative of equal protection, so also the differentiation between the owners of one-, two- and three-family residential property and other property owners is not. The fact that some of those others will be owners of multiple residences for more than three families rather than commercial property does not require a different conclusion, for plaintiffs have not shown that the Legislature could not properly conclude that the difference in return from such properties warranted exclusion of them from the small claims procedure.

Plaintiffs’ remaining contentions relate to the requirement of RPTL 305 (2) that "[a]ll real property in each assessing unit shall be assessed at a uniform percentage of value”. This provision, they argue, bars classification except as to an assessing unit which has adopted RPTL article 19 under which varying rates within an assessing unit are permissible. The short answer is that the small claims procedure which contemplates the possibility of a correction in assessment (RPTL 733 [2]), not rates (and, incidentally, makes clear that the small claims procedure has no precedential value [RPTL 735]), is not in conflict with the town’s article 19 option. Quite evidently the Legislature did not intend to make a property owner’s use of the small claims procedure turn on whether the assessing unit had so opted (cf. Matter of Farash v Jacobs, 120 Misc 2d 284, 288-289), for that could result in complete frustration of its purpose in enacting that procedure.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Goverl Consulting Corporation et al., Appellants, v New York Temporary State Commission on Lobbying, Respondent.
    Argued September 11, 1986;
    decided October 9, 1986

      APPEARANCES OF COUNSEL

      Larry Hutcher for appellants.

      Robert Abrams, Attorney-General (John Q. Driscoll, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and order of Supreme Court, Albany County, reinstated for the reasons stated in the dissenting opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (113 AD2d 611, 614-615).

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


text:
    The People of the State of New York, Appellant, v David C. Shepherd, Respondent.
    Argued September 9, 1986;
    decided October 9, 1986

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Joan A. Psaila of counsel), for appellant.

      Stephen M. Brent for respondent.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Lisa Margaret Smith, Robert Hermann and Peter H. Schiff of counsel), for Division of State Police, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the County Court should be reversed, the order of the Town Court granting defendant’s motion to suppress vacated, and the case remitted to Brighton Town Court for further proceedings on the motion.

The Brighton Town Court could not lawfully exercise its jurisdiction outside the Town of Brighton (UJCA 106 [1]; Siegel, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Part 2, UJCA 106, 1986 Cum Ann Pocket Part, p 168). Although the People consented to holding the proceeding outside the town, UJCA 106 (1) is a jurisdictional limitation which is not susceptible to waiver.

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

Order of the County Court reversed, etc.


text:
    The People of the State of New York, Respondent, v Wayne Robinson, Appellant.
    Argued September 5, 1986;
    decided October 9, 1986

      APPEARANCES OF COUNSEL

      Karen M. Kalikow and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Elisa F. Spatola and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The court properly denied defendant’s motion to suppress evidence found on his person following an arrest for unlawful possession of a handgun.

As stated in the undisturbed findings of the suppression court, when the arresting officers saw defendant enter a laundromat, they had information from a reliable informant, based on his personal observations, that defendant, who was said to be armed with a weapon and carrying drugs, would enter the laundromat that day for the purpose of secreting drugs. The informant had been supplying information about this defendant for some time and, on the day of the arrest, described him and his clothing for the police. Under the circumstances the initial intrusion of the police, in entering the laundromat and identifying themselves with guns drawn, was reasonable (see, People v Chestnut, 51 NY2d 14, 21; cf. People v Benjamin, 51 NY2d 267). When defendant, on seeing the police, reached for his belt, the conduct of the police in grabbing defendant’s hand and removing the gun was justified. Defendant’s subsequent arrest for unlawful possession of a weapon and the search of defendant’s person incident to that arrest were proper.

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

Order affirmed in a memorandum.


text:
    Gilbert DiLucia, Individually and as Announced Candidate for Mayor of the City of New York, Appellant, v Lawrence A. Mandelker, as Treasurer of New Yorkers for Koch 1985, Respondent, et al., Defendant.
    Argued September 10, 1986;
    decided October 9, 1986

      APPEARANCES OF COUNSEL

      Bernard Kenny and Barry K. Myrvold for appellant.

      Barry H. Garfinkel, Edward J. Yodowitz and Joseph Guglielmelli for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in so much of the opinion by Justice Arnold L. Fein at the Appellate Division as held that campaign contributions are not gifts within the meaning of New York City Charter § 2604 (110 AD2d 260).

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


text:
    In the Matter of the Arbitration between Co-Op City PBA, Respondent, and Riverbay Corporation, Appellant.
    Argued September 11, 1986;
    decided October 9, 1986

      APPEARANCES OF COUNSEL

      Michael R. Sonberg and Ellen A. Schwartz for appellant.

      Harry D. Hersh for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (114 AD2d 768; see also, De Paulo v City of Albany, 49 NY2d 994; Matter of Sprinzen [Nomberg], 46 NY2d 623; Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23).

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


text:
    In the Matter of Jonathan T. Gardiner, Deceased. Bank of New York et al., Respondents; Olney M. Gardiner et al., Respondents-Appellants; John P. Campbell, Guardian ad Litem, Appellant-Respondent.
    Argued September 11, 1986;
    decided October 9, 1986
   Reargument ordered and case set down for submission during the session of this court commencing on November 10, 1986.


text:
    Roseanna M. Kordana, Appellant, v Frank N. Pomellito, Respondent.
    Submitted August 4, 1986;
    decided October 9, 1986
   Motion to dismiss the appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that it does not lie as of right from the unanimous Appellate Division order of reversal absent the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    In the Matter of James J. Lack et al., Appellants, v William J. Canary et al., Constituting the Suffolk County Board of Elections, Respondents, and Thomas J. Downey et al., Intervenors-Respondents.
    Decided October 9, 1986
   Appeal transferred to the Appellate Division, Second Department, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Kenneth P. La Valle et al., Appellants, v William J. Canary et al., Constituting the Suffolk County Board of Elections, Respondents, and Ira P. Costell, Intervenor-Respondent.
    Decided October 9, 1986
   Appeal transferred to the Appellate Division, Second Department, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Margarita Rosa, Respondent, v Daniel J. Shapiro, Appellant.
    Submitted August 11, 1986;
    decided October 9, 1986
   Motion for leave to appeal dismissed upon the grounds that the order of the Appellate Division sought to be appealed from does not finally determine the action within the meaning of the Constitution and the order of the Associate Justice of the Appellate Division is not an appealable order (CPLR 5602 [a] [l] ED.


text:
    Badem Buildings, Respondent-Appellant, v Robert Abrams, as Attorney-General of the State of New York, Respondent. State of New York, Appellant-Respondent, v Louise Dembeck et al., Respondents, et al., Defendants.
    Submitted July 28, 1986;
    decided October 9, 1986
   Motion for leave to appeal by the State of New York granted. Cross motion for leave to appeal by Badem Buildings denied.


text:
    The People of the State of New York, Respondent, v Jose Castro, Appellant.
    Argued September 5, 1986;
    decided October 14, 1986
    APPEARANCES OF COUNSEL

      Nancy Feldman and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Ralph Fabrizio and Joyce P. Adolfsen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant argues on this appeal that the police acted unreasonably in conducting a pat-down search based on a tip supplied by an informant during a face-to-face encounter with police that defendant had a gun and said that he intended to "rip off a 'queen’ ”.

Resolution of this question turns primarily on an assessment of the credibility of the officer who testified before the suppression court. Thus, in view of the undisturbed finding that the police possessed reasonable suspicion to frisk defendant, his contention presents a mixed question of law and fact, which we will review only to the extent of determining whether there was evidence at the suppression hearing to support the hearing court’s determination (People v Van Lucen, 64 NY2d 625; People c Vincente, 63 NY2d 745). Because such record support exists, we conclude that the motion to suppress was properly denied.

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

Order affirmed in a memorandum.


text:
    In the Matter of Berkeley Kay Corp., Appellant, v New York City Conciliation and Appeals Board, Respondent.
    Argued September 10, 1986;
    decided October 14, 1986

      APPEARANCES OF COUNSEL

      Arthur Richenthal for appellant.

      Cullen S. McVoy and Edward Chazin for respondent.

      Judah Gribetz, Douglas M. Parker, Paul G. Burns, Gary M. Rosenberg and Blaine Z. Schwadel for Metropolitan Hotel Industry Stabilization Association, amicus curiae.

      Jeffrey R. Metz for Ansonia Associates, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, New York County, with directions to remand to the Division of Housing and Community Renewal (DHCR) for further proceedings in accordance with this memorandum.

Petitioner owns the Hotel Berkeley, a residential building located in the City of New York which is classified as a hotel and which is subject to the rent stabilization laws for hotels. Between June 30, 1982 and November 10, 1982, 26 tenants filed individual complaints with the New York Conciliation and Appeals Board (CAB) claiming variously that though the building was classified as a rent-stabilized hotel the tenants were not receiving required hotel services or that the premises had been let to them as apartments. In its answer, the owner did not deny that it had not been furnishing typical hotel services, e.g., mail, linen, furniture, maid services, to its tenants as required.

On January 26, 1984, CAB, concluding that the Berkeley Hotel was not a "hotel” as defined by section 3 (h) of the Amended Code of the Metropolitan Hotel Industry Stabilization Association, Inc. (Amended Hotel Code), ordered the owner to cancel its membership in the Metropolitan Hotel Industry Stabilization Association (METHISA) and reclassified the hotel as an apartment building pursuant to section 43 of the Omnibus Housing Act of 1983 (L 1983, ch 403). Additionally, CAB directed "that the rents for all the stabilized units in the premises be rolled back to the rent charged and paid on June 30, 1982” and ordered Berkeley Kay Corporation to refund to the tenants, on a building-wide basis, "any and all guidelines increases or market rent increases collected on or after [June 30, 1982]” and to refund the excess security deposits it held, if any.

Petitioner commenced this article 78 proceeding challenging the retroactive reclassification of the premises. Supreme Court partially granted the petition by annulling the rent rollback to 1982 as an improper retroactive reclassification. The Appellate Division modified Special Term’s order and dismissed the petition, finding that the CAB rent rollback to 1982 was authorized by section 33 (g) of the Amended Hotel Code and did not constitute a reclassification.

Section 43 of the Omnibus Housing Act (L 1983, ch 403), effective June 30, 1983, amended the Administrative Code of the City of New York § YY51-3.1. Subdivision (b) states that "[u]pan application by a tenant or owner, the conciliation and appeals board, and on or after April first, nineteen hundred eighty-four, the division of housing and community renewal, shall determine if such building is a hotel covered by this law, based upon the services provided and other relevant factors. If it is determined that such building is not a hotel, it shall thereafter be subject to this law pursuant to subdivision b of section YY51-3.0” (emphasis added). The statute clearly allows the CAB, or its successor DHCR, to reclassify a building prospectively from the date on which the statute became effective (see, Schick v Park Royal Assoc., 65 NY2d 1031). Petitioner challenges the Board’s power to reclassify the property and to order rollbacks to a date before it does so or before the statute became effective in 1982.

We agree that the Board improperly nullified all the hotel guidelines increases which had accrued from June 30, 1982 to the effective date of the Omnibus Housing Act, June 30, 1983. The Omnibus Housing Act is prospective and it cannot affect the substantive rights of landlords that accrued prior to effective date by authorizing retroactive reclassification of the premises or rollback of the rents.

In seeking to sustain its action, respondent contends that authority may be found to remedy the rents erroneously charged in 1982 and the first six months of 1983 in Amended Hotel Code § 33 (g) and to make them building-wide, notwithstanding the fact that only 26 of the 93 tenants filed complaints, by the holding in Matter of Ansonia Holding v New York City Conciliation & Appeals Bd. (61 AD2d 1140, affg NYLJ, Aug. 11, 1977, p 6, col 3 [Sup Ct, Hughes, J.]). Amended Hotel Code § 33 (g) does not authorize rent rollbacks, however. It enables the CAB or its successor, the DHCR, "[u]pan application of any tenant, to adjust the stabilization rent where it determines such rent to be inconsistent with this Code”. Under this section, the Board could order the owner to refund to the complaining tenants that portion of the past rents which reflect the value of services not provided by the owner, but section 33 (g) adjustments could not be made to noncomplaining tenants who did not seek administrative relief nor could it be used to justify a pre-1983 reclassification of the property and rollback of the rents. The Ansonia Holding case is not to the contrary. In that case, the deficiencies in service were to the common areas of the building and applied alike to all tenants. In this case, the deficiencies were to the individual tenants.

Inasmuch as the remedy respondent fashioned was unauthorized, the matter should be remitted to its successor for consideration of the individual complaints and whether the tenants are entitled to adjustments in their rent for 1982 and the first six months of 1983 because they were not furnished hotel services.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Jerry Ruiz, Appellant.
    Decided October 14, 1986

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Donald J. Siewert of counsel), for respondent.

      Robert S. Dean and Philip L. Weinstein for appellant.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum of the Appellate Division (120 AD2d 437).

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


text:
    The People of the State of New York, Respondent, v Winston Coaye, Appellant.
    Argued September 9, 1986;
    decided October 14, 1986
    APPEARANCES OF COUNSEL

      Steven J. Hyman and Paul H Levinson for appellant.

      Elizabeth Holtzman, District Attorney (Anthea H Bruffee and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing so much of the order as reversed the trial court’s order of November 3, 1983 and by reinstating the judgment of Supreme Court, Kings County, and, except as so modified, the order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of attempted murder in the first degree, criminal possession of a weapon, and assault. Upon defendant’s motion pursuant to CPL 330.30, on August 22, 1983, the trial court, in an order announced on the record, reduced the attempted murder conviction from first to second degree and proceeded immediately to impose sentence. Within 30 days, defendant filed his notice of appeal from the judgment. On November 3, 1983, the People submitted an order modifying the verdict "pursuant to the Court’s decision of August 22.” The order was entered that day, apparently unsigned, and the People the next day filed an appeal from that order. The Appellate Division, having consolidated the People’s appeal with defendant’s appeal, reversed the order insofar as appealed from, vacated the judgment of conviction, reinstated the jury verdict, and remitted the case to Criminal Term for reimposition of sentence in accordance with the verdict. Urging among other grounds that the People’s appeal should not have been heard by the Appellate Division because it was taken more than 30 days from August 22, 1983, defendant seeks reversal of the Appellate Division order.

The narrow question is whether, in the particular factual circumstances presented, the People’s time to appeal the trial court’s modification of the conviction ran from August 22, the date it was announced and judgment immediately rendered thereon, or from November 3, the date the People submitted the written order. There is no compelling answer in the CPL; it neither defines an "order” nor unambiguously specifies the time for taking an appeal from an order. The People point to CPL 460.10 (1) (a) in support of their contention that the time to appeal an order commences only upon service or entry of that order. In the case of an oral order immediately followed by sentence and the entry of judgment, however, that contention produces an anomaly: the order and sentence are subsumed in the judgment triggering defendant’s time to appeal, yet the People’s time to appeal from that same disposition would be indefinitely enlarged until a written order were served or entered, with the appeals conceivably proceeding independent of each other. In the circumstances, CPL 460.10 must be read to require that an appeal from the order modifying defendant’s conviction be taken at the latest "within thirty days after imposition of the sentence” (CPL 460.10 [1] [a]).

We have considered defendant’s remaining contentions and conclude they are without merit.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed.

       In this respect the CPL lacks the desired clarity of the CPLR (compare, CPLR 2219, 5513, with CPL 460.10). The statutory omission creates an ambiguity which is at the root of the present dispute, and should be addressed by the Legislature.


text:
    The People of the State of New York, Respondent, v Frank Santos, Appellant.
    Argued September 10, 1986;
    decided October 14, 1986

      APPEARANCES OF COUNSEL

      Oren Root, Jr., and Patrick M. Wall for appellant.

      Robert M. Morgenthau, District Attorney. (Jeffrey Scott Sarokin and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to the extent of remitting the case to Supreme Court, New York County, for a hearing on the branch of defendant’s motion to dismiss the indictments based on CPL 30.30, and for further proceedings in accordance with this memorandum. As so modified, the order should be affirmed. In the event defendant prevails on the motion following the hearing, the indictments should be dismissed. If, however, the People prevail, the judgment of conviction should be amended to reflect the denial of defendant’s motion.

Defendant was arrested on December 6, 1978. Two weeks later he was arraigned on two indictments and charged with criminal sale of a controlled substance in the second and third degrees, and criminal possession of a controlled substance in the third, fifth and eighth degrees. Nearly two years later, on October 31, 1980, defendant moved to dismiss both indictments on the ground that he had been deprived of his right to a speedy trial (CPL 30.20, 30.30). Defendant’s motion was denied summarily, without a hearing, after which he was tried before a jury, convicted of criminal sale of a controlled substance in the second and third degrees, and sentenced on both counts. The Appellate Division affirmed, without opinion.

Defendant now urges that, based on the trial court submissions — here summarized — the indictments should have been dismissed pursuant to CPL 30.30. Defense counsel, in his affidavit in support of the motion, set out a chronology of events beginning with defendant’s arrest in December 1978 and concluding that "the prosecution has not been ready for trial, nor has it made diligent efforts to secure the production of the defendant for a period which totals approximately two (2) years, most of which is attributable to delay caused by the prosecution.” The Assistant District Attorney responded in his affidavit that none of the adjournments from defendant’s arraignment to November 9, 1979 — the date a detainer was lodged against him by the State of New Jersey — should be included, as it was his understanding that the defendant was interested in a plea. No dates of adjournment with relevant exclusions were specified. The affidavit concluded that CPL 30.30 (4) (b) excused all delays (but one) before defendant’s waiver of extradition to New Jersey and since his return, and that CPL 30.30 (4) (e) was applicable to the period of defendant’s detention in New Jersey.

In denying defendant’s motion, the court found all but seven days subsequent to November 1979 chargeable to defendant and denied his motion to dismiss. Noting however that both parties in their submissions had exerted little effort to present the necessary facts, the court declined to hold a hearing. We conclude that summary denial of defendant’s motion was error.

Where a defendant moves to dismiss an indictment on the grounds specified in CPL 30.30 and includes in the moving papers sworn allegations that there has been unexcused delay in excess of the statutory maximum, the motion must be granted summarily unless the People controvert the factual basis for the motion (CPL 210.45 [4]; People v Lomax, 50 NY2d 351, 357; People v Berkowitz, 50 NY2d 333, 349; People v Gruden, 42 NY2d 214, 217-218). Thus, once a defendant has shown the existence of an unexcused delay greater than three or six months, the burden of showing that time should be excluded falls upon the People (People v Kendzia, 64 NY2d 331, 338; People v Berkowitz, 50 NY2d, at p 349, supra). Where the papers submitted by the prosecutor show that there is a factual dispute, there must be a hearing (People v Gruden, 42 NY2d, at p 217, supra).

Here, the affidavit submitted for defendant asserted a delay of nearly two years, mostly attributable to the People. Although the affidavit omitted the date the People’s time began to run, the Assistant District Attorney furnished that date in his own affidavit, thereby curing the alleged insufficiency (see, People v Lomax, 50 NY2d, at p 357, supra). The burden thus shifted to the People to show that specific periods within the two years should be excluded. The People, however, failed to set forth the particular dates they claim should be excluded and the factual and statutory basis for each exclusion. The People did not in their submission establish compliance with their speedy trial obligations, which continue independent of any obligations under the Agreement on Detainers (see, CPL 580.20) and the Uniform Criminal Extradition Act (see, CPL 570.50); particular periods of time involved in proceedings in other jurisdictions may of course be excludable under CPL 30.30. Here, the trial court had no factual basis on which to make the necessary findings as to each alleged period of delay between December 1978 and October 1980, including the length and the reasons for each exclusion under CPL 30.30 (4) (b) or (e). The affidavit of the Assistant District Attorney was sufficient to raise a factual dispute as to alleged exclusions, but it did not satisfy the People’s burden as a matter of law.

Defendant’s remaining contentions are without merit.

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

Order modified by remitting the case to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Westledge Nursing Home, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants.
    Decided October 14, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert Hermann, Peter H. Schiff and Alan W. Rubenstein of counsel), for appellants.

      Salvatore D. Ferlazzo for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division insofar as appealed from should be reversed, with costs, and the determination of the Commissioner of Health directing recoupment of overpayments due to labor costs reinstated.

[I] The conclusion by the Appellate Division that the Commissioner’s determination to readjust retroactively the respondent Westledge Nursing Home’s reimbursement rates and recoup the labor cost overpayments was not supported by substantial evidence, appears to be based upon that court’s finding that there was a binding agreement to use Westledge’s annualized labor costs incurred under their new union contract in order to determine a new reimbursement rate and a finding that the Department of Social Services had exercised its judgment in arriving at the labor cost component of Westledge’s increased rate. By so concluding, the Appellate Division erroneously effected an estoppel against the Department despite the "strong, defined public policy of this State to recover public funds improperly received” (Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 182; Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 34).

The rates at which health care facilities are reimbursed for costs incurred in the delivery of Medicaid services are provisional until the Department performs and completés the required audits (Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, supra; 10 NYCRR 86-2.7 [a]), and where a facility’s reimbursement rates were based upon mathematical miscalculation, computer error, or the submission of false information, the Department may retroactively adjust the rates and recoup overpayments (Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, supra; Matter of Mayflower Nursing Home v Office of Health Sys. Mgt., 59 NY2d 935). While it is recognized that the "right of recoupment does not extend to payments made under a statute which predicates determination of the amount to be paid upon judgmental considerations involving expertise” (Matter of Daleview Nursing Home v Axelrod, 62 NY2d, at p 34, supra), and while the Department may have exercised its judgment in deciding to use annualized labor costs as a basis upon which to increase Westledge’s reimbursement rate mid-term, the record clearly establishes that the reimbursement rates were improperly inflated because, as the parties agree, a mistake was made in treating the month of July 1971 as a representative month from which to annualize costs. This was a mistake of fact which the Department may rectify and the Commissioner therefore was correct in readjusting the rates retroactively and recouping the overpayments.

Moreover, the characterization of the Department’s acceptance and use of Westledge’s submitted cost data, including annualized labor costs, as a binding "agreement” is wholly unwarranted on this record (cf. Matter of Beekman-Downtown Hosp. v Whalen, 44 NY2d 124). Here, the Department, during the course of an appeal from previously set reimbursement rates, used Westledge’s cost projections to determine an increased rate. To characterize such use as creating an "agreement” binding upon the Department would compel the acceptance of unaudited cost data submitted by a facility regardless of the accuracy of that data. Such a construction would patently contravene the statute and the various regulations providing for postsubmission audit of cost reports, retroactive adjustment to rates based on error, and recoupment of over-payments and would impermissibly operate to estop the Department from recouping erroneously made overpayments.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment insofar as appealed from reversed, etc.


text:
    Benjamin Sanabria et al., Respondents, v American Home Assurance Company, Respondent, and Public Service Mutual Insurance Company, Appellant.
    Decided October 14, 1986

      APPEARANCES OF COUNSEL

      Arthur N. Seiff for appellant.

      Steven J. Ahmuty, Jr., for American Home Assurance Company, respondent.

      Gerald Orseck for Benjamin Sanabria and others, respondents.

      William Rosen, County Attorney, for Muriel O’Connor, as Sullivan County Commissioner of Social Services, respondent.

      Stephen L. Oppenheim, Village Attorney, for Village of Monticello, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and all claims against Public Service Mutual Insurance Company dismissed.

"[CJourts bear the responsibility of determining the rights or obligations of parties under insurance contracts based on the specific language of the policies” (State of New York v Home Indem. Co., 66 NY2d 669, 671) and unambiguous provisions must be given their plain and ordinary meaning (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232). Here, the insurance contract issued by Public Service to the Village of Monticello named as insureds the "Village of Monticello, New York and Board of Water Commissioners”, and although various additionally named and described persons and organizations are designated additional insureds, the policy does not name, describe or otherwise refer to individual police officers employed by the village as insureds. Under the terms of the policy, therefore, Public Service had no obligation to defend or indemnify the individual police officers. Nor would the principle enunciated in Schiff Assoc. v Flack (51 NY2d 692) have any applicability here since these officers, having retained their own counsel promptly, cannot be said to have "suffer[ed] the detriment of losing the right to control [their] own defense” (Schiff Assoc. v Flack, supra, at p 699).

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

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

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


text:
    In the Matter of Deborrah Sypniewski, Appellant, v Benjamin Ward, as Police Commissioner of the City of New York, et al., Respondents.
    Submitted August 25, 1986;
    decided October 14, 1986
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]X


text:
    Thomas Blando et al., as Trustees of the New York State Teamsters Council Health and Hospital Fund, et al., Appellants, v I. & O. A. Slutzky, Inc., Respondent.
    Argued September 5, 1986;
    decided October 16, 1986

      APPEARANCES OF COUNSEL

      Frederick W. Murad and Rocco A. DePerno for appellants.

      Roger S. Markowitz for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Supreme Court and the prior nonfinal order of the Appellate Division brought up for review should be affirmed, with costs.

The Appellate Division majority correctly concluded that there were factual issues requiring that plaintiffs’ motion for summary judgment be denied. In the context of the entire agreement the phrase "all of the employees covered by this Agreement” is ambiguous, for it may be understood as either referring only to employees who are members of the signatory locals or to any employee performing work within the territorial jurisdiction of such locals of a character listed in appendix A, whether or not a member of such local.

We disagree, however, with the Appellate Division’s conclusion that the agreement specifically provided that questions or disputes arising thereunder should be negotiated with the union representatives. The Appellate Division majority did not indicate the provision or provisions of the agreement which, in its view, invested the union representatives with such power. The only provisions of the contract for either period that are conceivably germane are article 8 relating to jurisdictional disputes and article 12 establishing an arbitration and grievance procedure. The latter is clearly inapplicable for section 12.5 specifically provides that "[violations concerning * * * Pension, Health and Welfare payments shall not be subject to the grievance procedure.” Moreover, article 8 by its reference to "the crafts involved” in a "jurisdictional dispute” makes clear that it deals only with who can perform work within the Teamsters’ jurisdiction, not with payments to pension or health and welfare funds. The more particularly is this so in view of the limitation with respect to payments in section 12.5 quoted above.

Inasmuch as there was an issue of fact concerning whether the employees in question were covered by the agreement, summary judgment was properly denied.

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

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


text:
    Kristian A. Miller, an Infant, by His Guardian ad Litem, Susan S. Miller, et al., Respondents, v Andrew F. Miller, Appellant.
    Decided October 16, 1986

      APPEARANCES OF COUNSEL

      Jonathan D. Katz for appellant.

      Duncan W. Clark for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division appealed from and the prior nonfinal order of the Appellate Division brought up for review should be reversed and the case remitted to that court for its review of the facts presented on the original appeal to the Appellate Division (CPLR 5613).

By failing to move for a directed verdict on the question whether plaintiff had sustained a "serious injury” under the No-Fault Insurance Law (Insurance Law §5102 [d]), plaintiff conceded the question to be one for the jury (Gutin v Mascali & Sons, 11 NY2d 97, 98; People v Davis, 231 NY 60, 63; Hopkins v Clark, 158 NY 299, 304-305; Hecla Powder Co. v Sigua Iron Co., 157 NY 437, 441; see, Thompson v City of New York, 60 NY2d 948, 949-950). The Appellate Division, therefore, exceeded its power of review when it determined that "as a matter of law” plaintiff’s unrebutted proof established that he had sustained a "permanent loss of use of a body function” (100 AD2d 577, 578) (e.g, People v Davis, 231 NY, at p 63, supra; see, Thompson v City of New York, 60 NY2d, at p 950, supra). Its prior order of reversal "on the law” was, therefore, erroneous.

As the prior nonfinal Appellate Division order necessarily affected its final order, reversal of the prior nonfinal order requires reversal of the final order. In any event, however, we would here have no occasion to consider the excessiveness issue raised by the appeal from the order affirming the later judgment. Should the Appellate Division reverse the judgment for defendant after reconsideration of the facts on the prior appeal, the result must be a new trial. Otherwise, the original judgment for defendant must be affirmed.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals .(22 NYCRR 500.4), order appealed from and prior order brought up for review reversed, with costs, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    The People of the State of New York, Respondent, v William Mercado, Appellant.
    Decided October 16, 1986
    APPEARANCES OF COUNSEL

      Bertrand J. Kahn and Philip L. Weinstein for appellant.

      John J. Santucci, District Attorney (Marc Resnick of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On March 4, 1981, Port Authority Police Officer William Gray was on duty at a passenger screening station inside the Pan American building at Kennedy Airport. An unidentified man came out of the men’s rest room near the screening station and informed the officer that there were two men in a toilet stall in the rest room. Officer Gray entered the rest room to investigate. He saw only one stall with a closed door; from a distance he looked beneath the stalls and observed only one pair of feet. Coming closer to the occupied stall, Officer Gray could hear two low male voices in conversation, but could not tell what was being said. He then attempted to peer through the space between the door and the frame. On the first side the door was blocked, as if someone were leaning against it; on the other side he could see defendant sitting on the top of the flushing unit with his feet resting on the toilet bowl. The officer then entered the adjoining stall, stood on the commode and looked down into the occupied stall. Kevin Jackson was standing inside, his back to the door, with an open glossine envelope containing white powder in his hand, and defendant was in the same position as before. Upon seeing Officer Gray, defendant dropped the envelope into the toilet. Both men were ordered out of the stall and to the rear of the rest room. A pat-down search of defendant revealed 19 "nickel bags” of heroin. Defendant was indicted for criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09). After denial of his suppression motion, he pleaded guilty to that crime and was sentenced to five years’ probation. The Appellate Division affirmed, without opinion.

The question presented is whether defendant’s Fourth Amendment rights were violated when the officer looked into the stall.

The Fourth Amendment protects all citizens "from unreasonable government intrusions into * * * legitimate expectations of privacy” (United States v Chadwick, 433 US 1, 7). It does not protect every subjective expectation of privacy, but only those that society recognizes as reasonable (Oliver v United States, 466 US 170, 177; Katz v United States, 389 US 347, 361 [Harlan, J., concurring]). Once it is resolved that the particular locale is one in which there is a cognizable expectation of privacy, the invasion of that privacy interest — including a visual one — will be a search subject to constitutional strictures (see, Smith v Maryland, 442 US 735, 740). Of course, since the Fourth Amendment protects against only unreasonable intrusions, a search may be justified by the existence of probable cause to believe that a crime has occurred, is occurring or is about to take place.

Persons have a reasonable expectation of privacy, for example, in their homes. The Supreme Court has also recognized a reasonable expectation of privacy in places that are nominally public, such as the interior of a public telephone booth; although available for general use, the Supreme Court recognized the booth as a place where an occupant’s expectation of privacy regarding auditory transmission is reasonable (see, Katz v United States, 389 US, at p 361 [Harlan J., concurring], supra). By the same token, an expectation of privacy in a public rest room toilet stall is reasonable. The enclosure exists precisely to insure privacy and to shield its occupant from public view (see, 1 LaFave, Search and Seizure § 2.4). Once the door is closed, an individual is entitled to assume that while inside he or she will not be viewed by others. (See also, Kroehler v Scott, 391 F Supp 1114; People v Triggs, 8 Cal 3d 884, 506 P2d 232; Buchanan v State, 471 SW2d 401 [Tex], cert denied 405 US 930; State v Bryant, 287 Minn 205, 177 NW2d 800; Brown v State, 3 Md App 90, 238 A2d 147; State v Briggar, 716 P2d 493 [Hawaii]; Commonwealth v Demchak, 251 Pa Super Ct 253, 380 A2d 473). The expectation of privacy, however, forecloses only unreasonable government intrusion.

Suspicion of criminal conduct does not negate one’s privacy interest, but particular circumstances may give rise to cause for permissible intrusion (see, People v De Bour, 40 NY2d 210, 223). Here we conclude that the circumstances present gave Officer Gray the requisite basis for looking into the stall.

Officer Gray was working in airport security. While investigating a tip, without any illegal conduct, and through application of his experience and senses, he ascertained that two men were using a single toilet stall in a manner that indicated to him that the stall was not being used for its intended purpose. There was no evidence of a wheelchair, crutches or other device that might have suggested occupancy by a handicapped person in need of assistance, and the sight of only one pair of feet rendered it unlikely that one of the occupants was ill and being helped. Officer Gray first pursued his investigation from afar, but based on what he could see and hear, he testified he suspected that the men were engaged in "a drug crime” or a "sex crime”. Such activity within the stall could abruptly terminate, and evidence disappear, upon announcement of his presence.

Human imagination might conjure up possible innocent behavior within that toilet stall — defendant has suggested only the presence of an ill or handicapped person — but that cannot be the test of probable cause justifying an intrusion upon one’s privacy interest. Probable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt. Based on the articulated, objective facts before Officer Gray, and the reasonable inferences to be drawn therefrom, it was "more probable than not” that criminal activity was taking place inside that stall (People v Carrasquilla, 54 NY2d 248, 254). His suspicions heightened by what he saw and heard from afar, the officer was not compelled to turn heel and leave the rest room, but could properly look through the spaces at the sides of the door in an effort to learn what was going on inside. When those observations served only to enhance his suspicion of illicit activity, he properly entered the adjoining stall and looked over the partition.

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

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


text:
    John Fritz, Respondent, et al., Plaintiff, v Consolidated Rail Corporation, Appellant.
    Argued September 11, 1986;
    decided October 16, 1986

      APPEARANCES OF COUNSEL

      James N. Blair and Catherine H. Stockell for appellant.

      Brian J. Shoot, Ivan S. Schneider and Charles J. Nolet, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and a new trial, limited to the issues of damages, granted.

Plaintiff was an engineer employed by defendant. Stepping off the locomotive at the end of his run, plaintiff was injured when the ground gave way beneath him. As a result, his feet and ankles were immersed in boiling water which was used to heat switches in cold weather. Plaintiff sustained severe burns and suffered medical complications.

Defendant admitted liability on plaintiff’s claim under the Federal Employers’ Liability Act (FELA; 45 USC § 51 et seq.) and the parties proceeded to trial solely on the issue of damages. The trial court refused defendant’s request to charge the jury that any award would not be subject to taxation. The jury awarded plaintiff $450,000 for loss of future earnings, $50,000 for loss of past earnings and $750,000 for general damages, pain and suffering and permanent injury. The Appellate Division reversed and ordered a new trial unless plaintiff agreed to a reduction in the award for future lost earnings to $360,000, which was the amount counsel suggested in summation. Plaintiff so stipulated. We now reverse.

In a case arising under FELA, the Trial Judge is required to instruct the jury that any recovery is not taxable (Norfolk & Western Ry. Co. v Liepelt, 444 US 490). Here, the jury awarded the plaintiff a sum in excess of that which counsel requested in summation. As in Liepelt, here "[i]t is surely not fanciful to suppose that the jury erroneously believed that a large portion of the award would be” taxable (id., p 497; see also, O’Byrne v St. Louis Southwestern Ry. Co., 632 F2d 1285).

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Manuel Astor, Appellant.
    Decided October 16, 1986

      APPEARANCES OF COUNSEL

      Anthony J. Murphy for appellant.

      Sol Greenberg, District Attorney (Paul A. Clyne of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. Defendant’s arguments based upon People v Bethea (67 NY2d 364) are not preserved. The other issues raised are without merit.

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


text:
    The People of the State of New York, Appellant, v Joseph Bronston, Respondent.
    Argued September 8, 1986;
    decided October 16, 1986

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Mark Dwyer and Norman Barclay of counsel), for appellant.

      Julian A. Hertz for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

As found by the majority at the Appellate Division, Officer Sheffler, in responding at 4:30 a.m. to a 911 report of a burglary in progress at 155th Street and 8th Avenue, in Manhattan, ordered defendant down from a fire escape at gunpoint, put him against the wall, and frisked him without first inquiring about his reasons for being there. The majority properly held that this conduct was unjustified. We agree with the dissent, however, that the nature and location of the area where a suspect is detained may be one of the factors considered in determining whether, in a given case, the police acted reasonably (see, People v De Bour, 40 NY2d 210, 220; People v Oden, 36 NY2d 382, 385). Nevertheless, this factor, if considered here together with the circumstance that defendant’s clothing and his presence on the fire escape were consistent with information transmitted in the report, would not warrant the degree of intrusion employed.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Robert Mosley, Appellant.
    Decided October 16, 1986

      APPEARANCES OF COUNSEL

      Karen M. Kalikow and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Michael R. Gordon of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress granted, and the indictment dismissed.

At 10:15 p.m. on December 22, 1983, plain-clothed police officers in The Bronx observed defendant Mosley and two companions, Mackie and another, walking about 25 yards behind an elderly woman around three sides of a block before the woman crossed the street to enter an apartment. Defendant and his companions began to cross the street after her, but had turned back and continued on their way when the police officers pulled their cars in front of and behind the three and stopped them on the sidewalk. When a frisk of the trio revealed a starter pistol on Mackie, but nothing on the other two, the police arrested all three for possession of Mackie’s weapon. A subsequent search of defendant at the police station yielded a .22 caliber pistol in defendant’s pocket, not found in the earlier frisk. Following denial of a motion to suppress the weapon, defendant pleaded guilty to criminal possession of a weapon in the third degree.

The conduct observed by the arresting officers was equivocal, at best, and could not constitute the type of specific articulable facts necessary to justify the stop and frisk (see, People v De Bour, 40 NY2d 210; People v Cantor, 36 NY2d 106; People v Chapman, 95 AD2d 782). Thus, no probable cause existed for the subsequent arrest of defendant and the station house search that led to discovery of the pistol, and the motion to suppress this weapon should have been granted. Inasmuch as the People rely on the discovery of the starter pistol on Mackie as the basis for the arrest of defendant — that defendant constructively possessed the weapon concealed on Mackie’s person — defendant has standing to contest the frisk of Mackie.

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

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


text:
    Theresa Amodio, Appellant, v Michael P. Amodio, Respondent.
    Submitted October 1, 1986;
    decided October 16, 1986
   Motion for leave to appeal granted. Motion for a stay pending appeal granted.


text:
    In the Matter of Brooklyn Union Gas Company, Respondent, v State Board of Equalization and Assessment, Respondent, and City of New York, Intervenor-Appellant.
    Submitted August 25, 1986;
    decided October 16, 1986
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not an order of the type provided for in CPLR 5602 (a) (2) (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    In the Matter of Sharon Fulton and Others, on Behalf of Themselves and Their Minor Children, Appellants-Respondents, and Patricia Cossley, Intervenor-Appellant, v James Krauskopf, as Commissioner of the Human Resources Administration of the City of New York, and of the New York City Department of Social Services, et al., Respondents-Appellants, and Cesar Perales, as Commissioner of the New York State Department of Social Services, Respondent.
    Submitted August 18, 1986;
    decided October 16, 1986
   Motion by respondents Krauskopf and Burdick, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed that part of an order granting petitioners’ motion for a preliminary injunction, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the article 78 proceeding against Perales, dismissed upon the ground that Krauskopf and Burdick are not aggrieved by the dismissal against Perales (CPLR 5511).


text:
    Meyer Weckstein, Respondent, v Sheldon L. Breitbart et al., Appellants.
    Submitted September 29, 1986;
    decided October 16, 1986
   Chief Judge Wachtler taking no part.


text:
    In the Matter of George P. Scaringe, as Chairman of the Albany County Republican Committee, et al., Appellants, v F. Stanton Ackerman et al., Respondents.
    Argued October 15, 1986;
    decided October 17, 1986

      APPEARANCES OF COUNSEL

      William F. Ryan, Jr., for appellants.

      Raymond A. Kelly, Jr., and Joseph R. Cannizzaro for F. Stanton Ackerman, respondent.

      Stanley L. Zalen for New York State Board of Elections, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the opinion by Justice John T. Casey at the Appellate Division (119 AD2d 327). We add that our decision does not preclude a future challenge to respondent Ackerman’s qualifications in the appropriate forum (see, NY Const, art III, § 9; Matter of Harwood v Meisser, 41 AD2d 531, affd 31 NY2d 1000).

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


text:
    In the Matter of Margaret A. Azria, Respondent, v George D. Salerno et al., Constituting the New York State Board of Elections, Respondent, and Thomas J. Lowery, Jr., Appellant.
    Argued October 16, 1986;
    decided October 17, 1986

      APPEARANCES OF COUNSEL

      John W. Tabner for appellant.

      Thomas J. Spargo for Margaret A. Azria, respondent.

      Stanley L. Zalen for New York State Board of Elections, respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that the ratio established by Election Law § 6-124 indicates the Legislature’s desire for proportional representation and that ideally this would require in each instance that the districts with the most party votes in the last election be accorded proportionally more representation than districts with less. However, the statute does not require strict compliance but more generally provides that delegates be chosen "substantially in accordance with the ratio”. In addition, as the Appellate Division noted, there are practical difficulties to achieving full proportional representation in this case.

Under all the circumstances we conclude that the statutory requirement was met. The courts below indicated, and we agree, that the party chose a proper number of delegates and that a sufficient number of delegates was available to provide a quorum. Although one district was unrepresented and another underrepresented most districts were properly represented in proportion to their voting strength.

We therefore conclude that there was compliance with the statutory requirement of substantial proportionality. We note that a contrary result would deprive all districts of an opportunity to vote for a party candidate because of a failure to achieve full proportional representation with respect to two of those districts.

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

Order reversed, without costs, in a memorandum.


text:
    In the Matter of Dorothy C. Brandt, Appellant, v Louis York et al., Respondents.
    Argued October 15, 1986;
    decided October 17, 1986

      APPEARANCES OF COUNSEL

      Michael S. Feldberg for appellant.

      Douglas A. Kellner and Judith Bader-York for Louis York, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Terrance Real of counsel), for Board of Elections in the City of New York, respondent.
   OPINION OF THE COURT

Order affirmed, without costs. Because the proceeding was not commenced in compliance with Election Law §§ 16-102 and 16-116, Supreme Court never acquired jurisdiction. The petition was, therefore, properly dismissed.

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


text:
    In the Matter of Abraham Agosto, Respondent, v Tax Commission of the State of New York, Appellant.
    Decided October 21, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Peter G. Crary of counsel), for appellant.

      Paul Ivers and T. Kevin Murtha for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed with costs, and the petition seeking to require respondent to reissue notices of deficiency dismissed.

Tax Law § 681 (a) provides, in pertinent part, that a notice of deficiency "shall be mailed by certified or registered mail to the taxpayer at his last known address”. In this case, notwithstanding the minor error in petitioner’s address, respondent determined that there was actual receipt in sufficient time to file a petition for redetermination of the deficiencies. This determination may not be disturbed where reasonable inferences from the facts sustain it (Matter of Liberman v Gallman, 41 NY2d 774).

Tax Law § 681 was enacted to bring New York in conformity with the comparable Federal provision (26 USC § 6212 [a], [b]; 1962 McKinney’s Session Laws of NY, Memorandum of State Department of Taxation and Finance, at 3536-3537, Executive Memoranda, at 3681-3682). The Federal cases hold that actual notice within the statutory period establishes compliance with the notice requirement (see, Pugsley v Commissioner of Internal Revenue, 749 F2d 691; Goolsby v Tomlinson, 246 F Supp 674). Therefore, by analogy, where, as here, the respondent Commissioner of Taxation and Finance offers evidentiary proof of both mailing and actual receipt, the notices of tax deficiency are valid despite an error in a taxpayer’s mailing address.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and petition dismissed in a memorandum.


text:
    Maria F. Egol, Appellant, v David Egol, Respondent.
    Decided October 21, 1986

      APPEARANCES OF COUNSEL

      Herbert L. Finkelstein for appellant.

      John A. Vassallo for respondent.
   OPINION OF THE COURT

Memorandum.

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

The arbitration clause in the parties’ separation agreement expressly, directly and unequivocally covered the issue of downward support modification (see, Bowmer v Bowmer, 50 NY2d 288, 293; Gangel v DeGroot, 41 NY2d 840, 841). Thus, whether the particular dispute involving arrears is proper subject matter for arbitration is a question for the arbitrator (Stillman v Stillman, 80 AD2d 356, 359, affd on opn below 55 NY2d 653).

Furthermore, the use of the phrase “either party may submit such dispute to arbitration” should be interpreted to limit the aggrieved party to a choice between arbitration and abandonment of the claim (Matter of Elliot v City of Binghamton, 94 AD2d 887, affd 61 NY2d 920; Bonnot v Congress of Ind. Unions, 331 F2d 355, 359). The ongoing negotiations and agreements to postpone arbitration signal defendant’s continuing perseverance.

Moreover, once it is decided that arrears may be covered by the arbitration clause, the arbitrator is empowered to consider arrears even though they accumulated before the arbitration clause was invoked (Stillman v Stillman, supra). Plaintiff argues that pursuant to Domestic Relations Law § 244, these arrears are a sum certain impervious to challenge. However, even under section 244, defendant is allowed to show that his failure to seek relief earlier was motivated by “good cause.” Defendant should be allowed to make such a showing before the arbitrator.

In view of the arbitrability of this dispute, defendant effectively commenced arbitration with his cross motion to compel arbitration (CPLR 7503 [a]).

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

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