author: Jasen, J. Jones, J.

text:
    In the Matter of Cohoes Memorial Hospital, Appellant, v Department of Health of the State of New York et al., Respondents.
    Argued October 11, 1979;
    decided November 20, 1979

      POINTS OF COUNSEL

      Michael M. Emminger for appellant.
    I. Article 28 of the Public Health Law created an administrative procedure in which physicians could contest the denial, curtailment or diminishment of their professional privileges by a hospital. (Matter of Fritz v Huntington Hosp., 39 NY2d 339; Matter of Moss v Albany Med. Center Hosp., 61 AD2d 545; Fried v Straussman, 41 NY2d 376.) II. The Public Health Council lacks jurisdiction to review complaints of physicians dealing with their administrative positions within a hospital. (Leider v Beth Israel Hosp. Assn., 11 NY2d 205; Van Campen v Olean Gen. Hosp., 210 App Div 204; Jacobson v New York Racing Assn., 33 NY2d 144; Matter of Salter v New York State Psychological Assn., 14 NY2d 100; Matter of Shiffman v Manhattan Eye, Ear & Throat Hosp., 35 AD2d 709; Halberstadt v Kissane, 31 AD2d 568; Martin v Catholic Med. Center of Brooklyn & Queens, 43 AD2d 540, 35 NY2d 901; Weed v Tucker, 19 NY 422; Astor v Mayor of City of N. Y., 62 NY 567.) III. The lower court erred in dismissing the article 78 proceeding for lack of finality. The hospital’s petition is in the nature of prohibition and there is no requirement of finality in such cases. (Matter of Civil Serv. Employees Assn. v Helsby, 31 AD2d 325; Matter of Hecht v Monaghan, 307 NY 461; McGraw v Shapiro, 56 AD2d 624; Matter of De Lia v McMorran, 56 Misc 2d 205.) IV. In the event that this court determines that the essential nature of this article 78 proceeding is not prohibition but rather certiorari, then the Supreme Court Special Term erred in dismissing the hospital’s petition because the Public Health Council’s determination is a final order within the scope of CPLR 7801. (Matter of Albini v Board of Appeals of Inc. Vil. of Great Neck Plaza, 41 Misc 2d 783; Matter of Love Securities Corp. v Berman, 31 AD2d 612.) V. The determination of the Public Health Council is reviewable as a final order because the decision terminated the administrative process. (Matter of Local 373 United Assn. of Journeymen & Apprentices v State Comm. for Human Rights, 40 Misc 2d 440.) VI. The determination of the Public Health Council is final and reviewable because section 2801-b does not require any further action to determine the rights of the parties involved.

      Robert Abrams, Attorney-General (George M. Thorpe and Shirley Adelson Siegel of counsel), for the Department of Health and another, respondents.
    I. The determination of the Public Health Council is not a "final” determination within the meaning of CPLR 7801 and therefore is not subject to review under article 78. (Matter of Fritz v Huntington Hosp., 39 NY2d 339; Guibor v Manhattan Eye, Ear & Throat Hosp., 56 AD2d 359, 46 NY2d 736; Matter of Feldman v Department of State of State of N. Y., 28 AD2d 106; Matter of Bianchi v McCoy, 32 AD2d 871; New York Urban League v Speer, 40 AD2d 689; Matter of Baker-Firestone v Bowman, 43 AD2d 738; Matter of Oliver v Lavine, 53 AD2d 616.) II. In any event the determination of the Public Health Council was within its authority, followed proper procedure, was free of error of law, was not arbitrary or capricious and was not an abuse of discretion. (Fried v Straussman, 41 NY2d 376; Guibor v Manhattan Eye, Ear & Throat Hosp., 46 NY2d 736; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677; Matter of Howard v Wyman, 28 NY2d 434; Matter of Hirschfeld v Feuer, 35 NY2d 176; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Bullock v Cooley, 225 NY 566.)

      David W. Morris for Robert C. Yates and another, respondents.
    I. Petitioner’s action on January 25, 1977 diminished individual respondents’ professional privileges. (Guibor v Manhattan Eye, Ear & Throat Hosp., 46 NY2d 736; Martin v Catholic Med. Center of Brooklyn & Queens, 43 AD2d 540, 43 NY2d 901.) II. The Public Health Council decision was not arbitrary or capricious, and the court should not substitute its opinion for that of the council. (Matter of Fritz v Huntington Hosp., 39 NY2d 339; Berkey v Downing, 68 Misc 2d 595; James v Board of Educ., 42 NY2d 357.) III. The order of respondent Public Health Council is not final and not subject to appellate review. (Matter of Fritz v Huntington Hosp., 39 NY2d 339.)
   OPINION OF THE COURT

Jasen, J.

The issue presented on this appeal is whether a determination of the Public Health Council pursuant to section 2801-b of the Public Health Law is subject to direct judicial review.

The pertinent facts may be briefly stated. In 1971, Dr. Robert C. Yates and Dr. Edward L. Schwartz were appointed to the active professional staff of Cohoes Memorial Hospital. During the course of their association with the hospital, Dr. Yates became chairman of the executive committee of the medical-dental staff and president of the staff and Dr. Schwartz became chairman of the department of medicine. However, on January 25, 1977, the board of directors of the hospital removed Drs. Yates and Schwartz from their administrative positions and reduced their staff rank from "active” to "courtesy”. The hospital gave no reason for its action.

Thereupon, the physicians filed a verified complaint with the Public Health Council alleging that the hospital had reduced their professional privileges in violation of section 2801-b of the Public Health Law. The council promptly investigated the complaint and offered the parties an opportunity to be heard. On April 22, 1977, the Public Health Council found "cause to credit the complaint” of the physicians on the ground that "the hospital acted to curtail or diminish the professional privileges of Doctors Yates and Schwartz without giving reasons related to standards of patient care, patient welfare, the objectives of the institution or the character or competency of the physicians.” The council later noted that the diminution of privileges which was found to be improper was the reduction in the physicians’ staff rank from "active” to "courtesy”. As a result of these findings, the council directed the hospital "to review the action taken in diminishing or curtailing the professional privileges of Doctors Yates and Schwartz” and to undertake that review "in accordance with section 2801-b of the Public Health Law.”

In May, 1977, the hospital commenced the instant proceeding pursuant to CPLR article 78, seeking judicial review of the council’s decision. Supreme Court dismissed the petition holding that a determination of the Public Health Council is not a final order within the meaning of CPLR 7801. The Appellate Division affirmed, characterizing the council’s determination as "a preliminary, nonfinal step to be taken prior to seeking remedial relief by means of an injunctive action.” From this order the hospital appeals. There should be an affirmance.

We begin our analysis by noting that at common law a private hospital’s actions were immunized from judicial scrutiny inasmuch as physicians served at the pleasure of the hospital. A hospital could terminate a physician’s professional privileges for any reason, even an arbitrary one, or for no reason at all. (Leider v Beth Israel Hosp. Assn., 11 NY2d 205, 208-209; Van Campen v Olean Gen. Hosp., 210 App Div 204, 209, affid 239 NY 615; see, generally, Exclusion of or Discrimination Against Physician or Surgeon by Hospital, Ann., 37 ALR3d 645, 659-661.) In 1972, the Legislature tempered the common-law rule by enacting section 2801-b of the Public Health Law which created an appeal mechanism for physicians who claim that they have been discriminated against or unjustly denied professional privileges or staff membership at a hospital. (Guibor v Manhattan Eye, Ear & Throat Hosp., 46 NY2d 736; Fried v Straussman, 41 NY2d 376; Matter of Fritz v Huntington Hosp., 39 NY2d 339.)

The statutory procedure created by the Legislature through which a physician may challenge a termination or diminution of hospital privileges is a two-step process. The first step is a review of the physician’s claim by the Public Health Council, an administrative body with professional expertise in the health-care field. It is the duty of the council to undertake a prompt investigation of the action complained of and to allow the parties to the dispute to submit, in a strictly confidential setting, any relevant information in support of their respective positions. Should the council find that there is cause to credit the physician’s complaint, its power to grant remedial relief is limited to directing an offending hospital to reconsider its earlier actions. On the other hand, if no improper practice is found, the council simply informs the parties of that fact. In either case, we believe that the Legislature intended the task of the council to be at an end at this point, for it has given the council no further statutory purpose or power.

If the parties, with the assistance of the Public Health Council, are unable to resolve their differences amicably, then, and only then, may the aggrieved physician, if he be so advised, invoke step two of the statutory procedure by commencing an action pursuant to section 2801-c of the Public Health Law to enjoin the hospital from discriminating against or unjustly denying professional privileges or staff membership in violation of section 2801-b of the Public Health Law. (See Guibor v Manhattan Eye, Ear & Throat Hosp., 46 NY2d 736, supra.)

In the injunction action, the court undertakes a de novo review of the issues involved in the dispute: (See Matter of Fritz v Huntington Hosp., 39 NY2d 339, supra.) The court is not bound by the prior determination of the council and is not limited to a consideration of the information previously submitted to that body. While the resulting determination of the council is admissible in the injunction action, it is admissible only to the extent that it serves as prima facie evidence of any fact or facts found therein. (Public Health Law, § 2801-c.)

At the conclusion of the injunction hearing, the court renders a final judgment. Only after the two-step process is complete and the court has ruled in favor of the physician is the physician entitled to any remedial relief. It is at this point that the merits of the physician’s claim have been finally determined and, thus, are subject to appellate review.

Petitioner contends, however, that the determination of the Public Health Council ought to be subject to separate judicial review apart from the possibility of review in an injunction action. We cannot agree.

In our view, the Legislature, by enacting section 2801-b of the Public Health Law, intended to provide the physician and the hospital with a professionally competent forum in which to resolve their disputes in an effort to avoid litigation, if possible. It seems obvious that the Public Health Council was never intended to mete out a separate administrative sanction, distinct from the enforcement procedure embodied in section 2801-c. Rather, it functions in an advisory capacity only, using its professional expertise to identify and discourage groundless claims, to mediate and to conciliate disputes between health-care professionals, and to offer the court some aid in resolving such disputes, should the parties fail to come to agreement on their own.

This conclusion is supported by the failure of the Legislature to provide the Public Health Council with any means whatever of enforcing its advisory determinations. Clearly, had the Legislature intended the council’s determination to have any punitive effect in and of itself, it could easily have given that body the power to impose a sanction directly upon a hospital or to dismiss the complaint of a physician. The Legislature’s failure to do so can only indicate its desire to vest the authority to grant remedial relief in the courts.

We also reject petitioner’s contention that the determination of the Public Health Council must be considered final because it is the only administrative agency with jurisdiction over a physician’s claim of termination or diminution of hospital privileges. Although it is true that the exhaustion of administrative proceedings normally culminates in a final order, it does not follow that the creation by the Legislature of but a single administrative body with jurisdiction in a given area compels the conclusion that the determination of that agency is a final order within the meaning of CPLR 7801 (subd 1) so as to be reviewable in an article 78 proceeding. This is especially true where the Legislature intended that the agency serve in an advisory capacity only, without power to order any remedial relief. Where, as here, the agency’s determination is only a procedural predicate for further judicial proceedings at which the rights of the parties will be ultimately resolved, the administrative ruling is in the truest sense nonfinal for purposes of judicial review.

The dissenters in this court, however, urge that Public Health Council’s finding of an "improper practice” stigmatizes the hospital and note that, in a case where the physician fails to bring an injunction action, the hospital is left without any means of challenging an adverse determination of the council. We fail to see how such a situation aggrieves the hospital. There is no social stigma attached to a determination of the Public Health Council. Its deliberations are held in the strictest confidence. Indeed, the record of the proceedings before the council may not be made public and is not even admissible in any subsequent judicial proceeding. (Public Health Law, § 2801-b, subd 3.) Further, the decision of the council is rendered by letter to the governing board of the hospital. Thus, the decision is likely to become public only when and if an aggrieved physician institutes an injunction action.

If the physician does bring such an action, the hospital will be afforded a complete de novo hearing on the physician’s claim (Matter of Fritz v Huntington Hosp., 39 NY2d 339, supra), including a full review of the issues which it now urges should be separately reviewed in an article 78 proceeding. If the physician fails to institute an injunctive action, the hospital certainly has no cause to complain, for its termination or diminution of the physician’s privileges will remain undisturbed.

The dissent also urges that the council’s determination aggrieves the hospital inasmuch as it serves as prima facie evidence, in any subsequent judicial action, of any fact or facts found therein. However, the procedural advantage which attaches to the council’s ruling would seem to aggrieve the hospital no more than it aggrieves a physician inasmuch as the determination is accorded such status without regard to whether it is favorable or unfavorable to the physician. In any case, the evidentiary burden upon the hospital is far from overwhelming. The hospital need only show that it had a reason to terminate or diminish the physician’s privileges, that the reason related to the legitimate concerns set forth in the Public Health Law, and that it acted in good faith. (Fried v Straussman, 41 NY2d 376, supra.) In view of the minimal showing required to support the hospital’s action and noting, as we do, that the statute involved was enacted primarily for the benefit of physicians, we see no need for a separate article 78 review of the council’s determination merely because it may be of some procedural value to a physician in a later judicial action.

For all of the above reasons, we hold that a determination of the Public Health Council was not intended by the Legislature to be subject to review pursuant to CPLR article 78. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Jones, J.

(dissenting). I cannot agree with today’s holding that the determination by the Public Health Council — that the hospital, in changing the staff ranks of Drs. Yates and Schwartz from "active” to "courtesy”, diminished their professional privileges without giving reasons permitted by subdivision 1 of section 2801-b of the Public Health Law — was not a final determination within the meaning of CPLR 7801 (subd 1). I would therefore deny the motion to dismiss and remit the case to Supreme Court for further proceedings on the petition.

The majority’s conclusion rests on the premise that the council’s determination was, in the words of the Appellate Division whose order is being affirmed, "a preliminary, nonfinal step to be taken prior to [the physicians’] seeking remedial relief by means of an injunction action [pursuant to Public Health Law, § 2801-c]” (64 AD2d 737, 738). That the determination — or, more precisely, the filing of the complaint which activated the process that culminated in the determination— was a prerequisite to an application for injunctive relief in the judicial forum, there is no doubt (Guibor v Manhattan Eye, Ear & Throat Hosp., 56 AD2d 359, affd 46 NY2d 736); it does not follow, however, that that requirement, applicable to the physicians, destroys the finality of the determination, which represented the ultimate disposition made, and which might be made, in the proceeding that had been instituted before the Public Health Council.

When the council, after receiving the complaint filed on behalf of Drs. Yates and Schwartz, had conducted its investigation, concluded that there had been an improper practice committed by Cohoes Memorial Hospital, and so advised the governing body of the hospital, directing that that body review the action taken with respect to the professional privileges of the named physicians, the council had exhausted the authority conferred on it by subdivision 3 of section 2801-b of the Public Health Law and thus had brought to a close the proceeding which had been pending before it. What remained to be done was only action by the hospital — the re-examination of the change of staff rank of the physicians; nothing further was to be or could be done by the council.

The fact that the relief available from and granted by the council did not produce the restoration of former staff status desired by the physicians, perhaps by reason of the failure of the hospital’s governing body to comply with the council’s directive, as a consequence of which the doctors saw fit to petition Supreme Court for injunctive relief, simply reflects the limited extent of the council’s authority and the inadequacy of the proceeding before that body as a means for securing restoration of status. The purpose that the administrative proceeding was to serve — an appraisal of a hospital’s claimed improper practice in an informal, confidential setting by a professionally qualified body with the prospect of a direction for re-examination by the hospital itself — was fully accomplished, and the proceeding before the council terminated exactly in one of the ways contemplated by the statute. That further action was necessary to secure a mandate of restoration (if the physicians should be successful in their litigation pursuant to Public Health Law, § 2801-c), and that the authority for such further action is to be found in an adjoining statutory section, does not destroy the discrete and self-contained nature of the administrative proceeding authorized by subdivisions 2 and 3 of section 2801-b of the Public Health Law; nor does it detract from the eligibility of the council’s pronouncement and directive as a final determination for judicial review through this article 78 proceeding.

While not necessary to the resolution of the question of the finality of the Public Health Council’s determination that the hospital had been guilty of an improper practice, the substantial aggrievement to the hospital in consequence of that determination cannot be overlooked. As a practical matter, the hospital has been publicly held to have been guilty of an improper practice by the citizens body officially charged with authority and responsibility for making such determinations— not an inconsiderable aggrievement in these days of the importance of public relations. Further, in the injunction action that the physicians have instituted in Supreme Court the finding by the council "shall be prima facie evidence of the fact or facts found therein” (Public Health Law, § 2801-c). By its determination which the hospital seeks to challenge in this article 78 proceeding the council has found that an improper practice was committed by the hospital. Although the ultimate issue of improper practice is one of the issues for resolution in the pending injunction action, the finding by the council will be accorded particular weight, and the burden of going forward and rebutting it will rest on the hospital (Matter of Fritz v Huntington Hosp., 39 NY2d 339, 347). The hospital’s recourse to the present proceeding is recourse to a vehicle by which, in advance of shouldering that burden, it may have determined its claims that the finding by the council was in excess of authority and was arbitrary and capricious. Those questions — addressed to the council’s determination, which assumes a pre-eminent position in the injunction action — will not be the grist of the pending action under section 2801-c. To say that the council’s determination is not final for purposes of article 78 review because in the injunction action there will be litigation of the issue of improper practice is to blend together in a single proceeding the two, separate though related proceedings provided by sections 2801-b and 2801-c of the Public Health Law and to ignore the difference in ultimate remedies which the two offer and, equally significant, the consequence in the injunction action of an adjudication in this article 78 proceeding with respect to the validity of the council’s finding of improper practice.

Additionally, it may be observed that, because the institution of an injunction action under section 2801-c is an option of the physician, an article 78 proceeding might be said to be the only device available to a hospital by which it may obtain review of a Public Health Council determination and direction issued under subdivisions 2 and 3 of section 2801-b. The cases cited by the Appellate Division are not dispositive of the present appeal and indeed only serve to highlight the distinction between the positions of a complaining physician and a hospital. Each of the authorities cited confirms the availability to a physician who believes he has been the object of an improper practice as defined in subdivision 1 of section 2801-b of the Public Health Law of access to the courts for effective restoration of professional privileges through an action under section 2801-c by which, if he succeeds, he will be able to accomplish a practical nullification of an adverse determination by the Public Health Council in those instances when such a determination had been rendered (Matter of Fritz v Huntington Hosp., 39 NY2d 339, supra; Matter of Moss v Albany Med. Center Hosp., 61 AD2d 545; Yates v Cohoes Mem. Hosp., 64 AD2d 726). None treats the predicament of a hospital against which a council finding of improper practice has been made; under today’s decision such a hospital is foreclosed from judicial review of the propriety of such finding. Even if the physician exercises his option to invoke the judicial process, while the hospital will be able to resist the claim of improper practice, it will never be able to eradicate the unfavorable determination of the Public Health Council. Moreover, if the physician does repair to the courts, the hospital will be confronted with the council’s determination as prima facie evidence of the facts found therein, bereft of a prior opportunity to challenge such determination and denied the opportunity to defend the injunctive action without an initial handicap.

In the case before us the council’s finding of improper practice and its directive for reconsideration by the hospital’s governing body has finally terminated the proceeding instituted before it pursuant to section 2801-b of the Public Health Law and review of its determination by a special proceeding under article 78 is now appropriate. The existence of some other remedy to an aggrieved physician, provided by section 2801-c of the statute — which might or might not be resorted to —does not alter this result. I would therefore reverse the order of the Appellate Division dismissing the hospital’s article 78 proceeding.

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

Order affirmed.

L

       The procedures set forth in section 2801-b of the Public Health Law are analogous to the conciliation procedures which were at one time required as a prerequisite to an action for divorce, separation or annulment. (See former Domestic Relations Law, art 11-B [repealed L 1973, ch 1034, § 2, eff July 1, 1973].) These conciliation procedures provided an informal forum for the resolution of marital disputes. No remedial relief, however, could result from the conciliation and no appeal was available from any determination of the conciliation commissioner.

      . That this proceeding is discrete is underscored by the fact that the proceedings authorized by sections 2801-b and 2801-c of the Public Health Law did not come into the statute at the same time. Section 2801-b, providing the procedure for filing a complaint of improper practice before the Public Health Council, was enacted by chapter 284 of the Laws of 1972, whereas the injunctive remedy provided by section 2801-c for violations of any provision of article 28 of the statute had been in existence since adoption of chapter 617 of the Laws of 1970. When the council procedure was enacted in 1972 as section 2801-b, the injunctive remedy section, which had theretofore been numbered 2801-b, was renumbered section 2801-c.

      . Nothing stated above should be read as suggesting that, insofar as the physician is concerned, a determination by the Public Health Council adverse to him would not likewise be final. The special statutory proceeding before the council would similarly have been concluded.
      Additionally, he, too, would be aggrieved thereby and should be afforded an opportunity to challenge such a determination by the council. He should not be required in an injunctive action to shoulder the burden of overcoming the prima facie effect of the council’s rejection of that claim without a prior, or indeed any, opportunity for judicial review of its action.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Barbara J. Struble et al., Respondents, v V. James Chiavaroli et al., Constituting the Board of Elections of Monroe County, Respondents, and John Stanwix, Appellant.
    Argued August 29, 1979;
    decided August 30, 1979

      APPEARANCES OF COUNSEL

      James T. Townsend for appellant.

      William H. Bristol for petitioners-respondents.

      John D. Doyle, County Attorney (Nira T. Kermisch of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Harold Brown, Appellant, v Ulster County Board of Elections et al., Appellants, and Peter J. Savago, Respondent.
    Argued August 29, 1979;
    decided August 30, 1979

      APPEARANCES OF COUNSEL

      Robert G. Lyman for petitioner-appellant.

      William A. Kelly, County Attorney (William C. Mullany of counsel), for Ulster County Board of Elections, appellant.

      Douglas Rutnik for John J. Hogan, appellant.

      H. Clark Bell and Francis T. Murray for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, to the extent of reinstating so much of the judgment of Special Term as directed the Ulster County Board of Elections to provide the enrolled Democratic voters of the 9th Legislative District of Ulster County with the opportunity to write in the names of candidates for the office of county legislator. As so modified, the order of the Appellate Division should be affirmed.

While we agree with the Appellate Division that the objector was an indispensable party to this proceeding insofar as it sought to validate the designating petitions of the four enrolled Democrats seeking the Democratic nomination for the four seats in the Ulster County Legislature from the 9th Legislative District and that the failure to serve him precludes the court from entertaining that phase of the proceeding (Matter of Butler v Hayduk, 37 NY2d 497), we are of the opinion that due to the failure of all pending designations of the Democratic Party for said office, Special Term was empowered here under section 16-100 of the Election Law to grant the request in the petition for alternative relief, to wit: an opportunity to ballot on primary day in the 9th Legislative District of the County of Ulster (Matter of Hunting v Power, 20 NY2d 680; Matter of Ramos v Alpert, 41 AD2d 1012, affd 32 NY2d 903). In so doing, Special Term afforded members of the Democratic Party, who would be otherwise without a designated candidate for the office of county legislator, an opportunity to express their choice as to their candidate and to present a candidate to voters in the general election.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli dissents in part and votes to affirm for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Lana R. Connor, Appellant, v Anthony Sadowski et al., Constituting the Board of Elections of the City of New York, Respondents, and Gregory W. Faulkner et al., Appellants. (And Another Proceeding.)
    Argued August 29, 1979;
    decided August 30, 1979

      APPEARANCES OF COUNSEL

      Hyman Silverglad and Lawrence A. Mandelker for appellants.

      John C. Klotz for petitioner-respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of B. A. Rittersporn, Jr., et al., Respondents, v Anthony Sadowski et al., Constituting the Board of Elections of the City of New York, Respondents, and Thomas Venturini, Appellant.
    Argued August 29, 1979;
    decided August 30, 1979

      APPEARANCES OF COUNSEL

      William F. Larkin and Alvin E. Heutchy for appellant.

      Lloyd R. Larger for petitioners-respondents.
   OPINION OF THE COURT

Memorandum.

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

We have examined appellant’s challenges to the designating petition based on several specified grounds and find them to be without merit. In particular we reject his contention that the presumption of regularity which attaches to the acts of a commissioner of deeds as a public officer should be inapplicable as a matter of law to statements of a commissioner of deeds who is the candidate named in the designating petition on which his statements appear (see Election Law, § 6-132, subd 3).

Appellant’s general challenge to the petition grounded in principles of permeation in consequence of claimed irregularities or fraud or both presented questions of fact which, having been determined against appellant at Special Term and affirmed in the Appellate Division, are now beyond the scope of our review.

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

Order affirmed.


author: Gabrielli, J.

text:
    In the Matter of Edwin Suarez et al., Respondents, v Anthony Sadowski et al., Constituting the Board of Elections of the City of New York, et al., Respondents, and Jose A. Cruz, Appellant.
    Argued August 29, 1979;
    decided August 30, 1979

      APPEARANCES OF COUNSEL

      Jose Cruz, appellant pro se.

      Lorenzo Padilla for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Supreme Court was correct in holding that the respondents were not entitled to submit evidence to refute the findings of the Board of Elections that a large number of the signatures on the petition were invalid.

The candidates submitted 1,366 signatures and the Board of Elections held that 472 were valid. Since a total of 346 valid signatures was needed the Board of Elections declared the respondents as candidates for certain Democratic Party positions. The petitioners commenced this proceeding by order to show cause supported by a verified petition with specifications seeking to invalidate a number of signatures which the Board of Elections had held to be valid. The referee filed a report, confirmed by the court, concluding that only 333 of the signatures found to be valid by the board were in fact valid. During the hearing before the referee respondents sought for the first time to show that a number of signatures which the Board of Elections had found to be invalid (and which had not been placed before the court by any petition to validate, by order to show cause, or in other manner, and thus were not before the court) were actually valid. In view of the. fact that no cross petition to validate had been filed and the petitioners were not otherwise alerted by way of notice in the proceeding that respondents intended to seek validation of these signatures, it would be manifestly unfair to suddenly confront them with the necessity of meeting whatever proof the respondents sought to offer. This is particularly true considering the necessity of speedy disposition in cases of this sort. Under these circumstances, the respondents were not entitled to the affirmative relief sought.

The proposal made by the dissenters is simply false economy. They would require less procedural orderliness than the minimum needed to ensure an efficient and expeditious resolution of election matters. Under the approach they suggest no one could ever be sure whether the proceeding would finally be terminated when the court rules on the specific objections raised in the petition. There would always be the possibility that the respondent could raise new issues without any prior notice and thus require full resumption of the proceeding on points which neither the parties nor the court were previously prepared to consider. This may save the time of one party but it would not promote judicial economy or ensure fairness to all of the litigants.

Gabrielli, J.

(dissenting). I respectfully dissent. By its decision today, this court needlessly complicates that speedy process for the resolution of disputes concerning the validity of designating petitions which is contemplated by article 16 of the Election Law. The court now mandates the use in such proceedings of certain procedural devices more appropriate in the context of a full-blown action at law than in an abbreviated special proceeding. It has done so, moreover, in the absence of any authority, statutory or otherwise, for such a rule.

The majority suggests that in order to bring before the court the question of the validity of those signatures deemed invalid by the Board of Elections, the candidates were required either to commence a proceeding to validate their petitions or to serve a responsive pleading of some undisclosed nature. Neither procedure is contemplated or authorized by the Election Law. Nowhere in the Election Law is there any requirement that a prospective candidate commence any court proceeding in order to validate his petitions. A proceeding concerning the nomination or designation of a candidate may only be commenced "by any aggrieved candidate, or by the chairman of any party committee or by a person who shall have filed objections” (Election Law, § 16-102, subd 1). Respondents are candidates, not party chairmen, and it is certainly unlikely that they would file objections to their own petitions. Nor were they "aggrieved candidates” following the determination of the Board of Elections, since that body refused to invalidate their petitions. I find it difficult to comprehend how a candidate who is on the ballot could be considered aggrieved by the decision that placed him there. Hence, these respondents were without standing to commence a proceeding to validate their petitions.

Nor does the Election Law call for any responsive pleadings in a proceeding such as this. Due to the obvious and sometimes painful time constraints which necessarily govern these proceedings, special procedures have been developed to expedite the resolution of such disputes. Thus, section 16-116 of the Election Law provides that such a proceeding "shall be heard upon a verified petition and such oral or written proof as may be offered, and upon such notice to such officers, persons or committees as the court or justice shall direct, and shall be summarily determined”. There is ordinarily no opportunity in such a proceeding for the service of any responsive pleadings, for time is plainly of the essence. Indeed, although the majority blithely speak of the possibility of some type of responsive pleadings, the court nowhere suggests any authority or source mandating such a device nor does it indicate what sort of time span it would deem appropriate for the service of such papers. Presumably the majority is speaking in terms of an answer of some sort. Short of a provision in an order to show cause bringing on the matter specifying the time for filing of such a pleading and the nature of its content the procedure suggested by the majority is simply unworkable within the context of an election proceeding; and is a step backwards in the early resolution of election cases, especially since in a number of instances, as here, the respondents are required by financial considerations to appear pro se.

Finally, I note that the majority erroneously considers this to be a proceeding brought to invalidate certain specific signatures, and concludes that accordingly the court is precluded from considering any signatures other than those challenged. This is not an accurate description of the proceeding. A proceeding such as this seeks to invalidate the petition of the candidate, not merely some of the signatures on it. By commencing this proceeding, petitioners themselves put in issue the validity of all signatures on the petitions. Nevertheless respondents were improperly foreclosed by both the referee and Supreme Court from defending the validity of all the signatures on the petition. In order to determine whether a petition is to be invalidated and so deprive the supporters of the candidate in question of their opportunity to exercise the franchise as they wish, the court must look to the entire petition, and must evaluate all the signatures on the petition to determine whether there exist sufficient valid signatures to sustain the petition. In making this decision, the court is not bound by the prior evaluation of the validity of the signatures by the Board of Elections (see Matter of Rauch v Cohen, 268 App Div 879, 880). To hold that the court must blind itself to the bulk of the petition before it, and simply consider those signatures objected to by the petitioners, makes little or no sense at all.

Accordingly, I vote to reverse the order of the Appellate Division and to remit the matter to Supreme Court, New York County, for further proceedings.

Judges Jasen, Jones, Wachtler and Fuchsberg concur; Judge Gabrielli dissents and votes to reverse in an opinion in which Chief Judge Cooke and Judge Meyer concur.

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Herbert Habenicht, Appellant, v Gerald Geiger, Individually and as the Father of Diane Geiger, an Infant, et al., Respondents.
    Submitted July 23, 1979;
    decided August 30, 1979
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 43, pp 169-171). Motion for a stay dismissed as academic.


text:
    In the Matter of Mann Judd Landau et al., Appellants, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent. (And Two Other Proceedings.)
    Submitted August 29, 1979;
    decided August 30, 1979
   Motion to dismiss the appeal taken as of right herein granted and said appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Petitioners’ papers treated as an application for leave to appeal and the application granted. Motion for a stay granted. Case set down for argument on November 13, 1979, appellants’ papers on appeal to be served and filed on or before September 17, 1979 and respondent’s on or before October 15, 1979.


author: Jones, J.

text:
    In.the Matter of Carl H. Kahler, Respondent, v Everett F. McNab et al., Constituting the Board of Elections of the County of Suffolk, Respondents, and Gary J. Hausler et al., Appellants. In the Matter of Patricia Giordano, Appellant, v Frank Coveney et al., Constituting the Board of Elections of the County of Suffolk, et al., Respondents.
    Argued August 29, 1979;
    decided September 4, 1979
    APPEARANCES OF COUNSEL

      Warren H. Richmond, III, for appellants.

      Oscar J. Bloom for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The dispute over whether it is the so-called Giordano slate or the Thomas Leirer slate of officers that should be recognized to act on behalf of the town Conservative Party obviously requires resolution. The record as it comes to us, however, leaves so unclear the nature of the differences animating the factions, the procedures that prevailed at the meeting of the town committee at which each slate was designated, and other facts relevant to an informed decision that it casts almost no illumination on the parties’ claims. Furthermore, we note that, though the Appellate Division afforded the parties an opportunity to set forth their competing contentions in full at a hearing, neither side has availed itself of that forum.

Whether or not the underlying events should be accorded a presumption of regularity, certainly a relevant issue, remains unanswerable in the present context. Nor can we say whether the county executive committee, by virtue of its "general authority” over all subdivisions of the party in Suffolk (Rules and Regulations of the Suffolk County Committee of the Conservative Party, art II, § 1) was empowered in this situation to have resolved the dispute by itself choosing one slate over the other. No rule of either the town or county party expressly provides for the county executive committee to resolve internal disputes of this kind, although no doubt such a rule could have been adopted (see Election Law, § 6-108, subd 3). Neither has there been any suggestion that the county executive committee customarily exercises such power (cf. Note, Developments — Judicial Control of Actions of Private Associations, 76 Harv L Rev 983, 1026).

Thus, we find no reason to interfere with the conclusion of the courts below that, under the circumstances, "neither slate involved in these proceedings is the authorized representative of the Islip Town Conservative Party” and that, consequently, the "holdover” officers of the town committee for the time being properly continue in office as provided by the Rules- and Regulations of the Town of Islip Conservative Party (art III, § 1; Matter of Greenberg v Cohen, 173 Misc 372). In so saying, we reiterate the principle that, absent inconsistent statutory directives, the duly adopted rules of a political party should be given effect (see Election Law, §§ 2-110 — 2-114; Matter of Torchin v Cohen, 286 NY 544; Matter of Branch, 277 App Div 1018; see, generally, Note, 76 Harv L Rev 983, 994).

Jones, J.

(dissenting). We cannot agree with the disposition reached by the majority.

In view of the action of the Suffolk County Conservative Party Committee on October 13, 1978 declaring that the so-called Giordano slate of officers, including its secretary, was validly elected at a meeting of the Islip Town Committee on October 1, 1978, those officers should be recognized as the officers of the Islip Town Committee until the action of the county executive committee has been overturned or their election declared to be invalid in the courts. While an independent proceeding has been instituted to accomplish this objective, it is still pending without final resolution; a summary disposition in favor of the Leirer group was reversed by the Appellate Division on July 9, 1979 and the independent proceeding was remanded for an evidentiary hearing (Town of Islip Town Committee of Conservative Party of N. Y. State v Leo, 71 AD2d 624). In this circumstance the Giordano officers should be recognized in the proceedings now before us as entitled to file the Wilson-Pakula certificate of authorization under subdivision 3 of section 6-120 of the Election Law.

The rules of the Suffolk County Committee of the Conservative Party, adopted "for the organization and government of the Conservative Party of the County of Suffolk”, grant to that committee general authority over the Conservative Party organization of the county "and every subdivision thereof’ (art II, § 1). It is there provided that all committees of the party within Suffolk County are under the jurisdiction of the county committee. In view of the authority thus conferred, the county executive committee (acting on behalf of the county committee) was empowered to resolve intraparty disputes between the warring factions in the Town of Islip. The resolution adopted on October 13, 1978 declaring that the Giordano slate had been lawfully elected as officers of the Islip Town Committee on October 1, 1978 should be given recognition, at least until it has been annulled by some judicial determination following completion of the hearing in the Town of Islip case.

Aware of the differences which might arise at the October 1 town committee meeting, the county executive committee had designated representatives to attend the meeting on its behalf and to report "their observations about the [meeting] and the manner in which [it] was conducted”. At least in part on the basis of the report of these observers, the county executive committee unanimously and officially declared the Giordano officers, including Dianna M. Peragine as secretary, duly elected.

In our view this declaration, dealing as it did with intraparty affairs, was within the scope of the authority conferred by the Conservative Party on its county committee. Thus, at least in the context of this election case when time considerations practically preclude awaiting the final judicial determination in the underlying independent proceeding, we should recognize and accept the October 13, 1978 resolution as determinative. The issue is not one of "regularity” but of the effect to be accorded the determination of the county committee.

The view has often been expressed that, insofar as consistent with the clear responsibility of the courts to enforce constitutional rights and the provisions of the Election Law and other statutes and to uphold considerations of public policy as reflected in judicial decisions, internal issues arising within political parties are best left to resolution within the party organization. (See 18 NY Jur, Elections, § 95.) This principle has particular vitality when applied to Wilson-Pakula designations (Matter of Wydler v Christenfeld, 35 NY2d 719).

Accordingly, we would reverse the order of the Appellate Division.

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

(Motion for leave to appeal granted August 29, 1979.)

Order affirmed, without costs, in a memorandum.

      . It might be contended that, if the challenge to the Giordano elections were based in any part on alleged violations of or failures to comply with the provisions of the Election Law or other statute, such authority of resolution should not be held to be vested in the party organization. We need not consider any such contention, however, inasmuch as all counsel have assured us that no such claims are advanced in the independent proceeding; we are told that the infirmities there asserted represent alleged noncompliance with party rules or with rules of parliamentary procedure generally.

      . The record before us does not disclose that any order has been granted in that proceeding staying action by the Giordano officers. If such relief were desired it should have been sought and obtained in that proceeding.


text:
    In the Matter of Muriel Siebert, as Superintendent of Banks of the State of New York, Respondent. Citizens Savings and Loan Association of New York, Appellant.
    Decided September 4, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that no substantial constitutional question is directly involved and the dissent is not on a question of law.


text:
    Mitch Miller, Appellant, v Columbia Records, a Division of Columbia Broadcasting, Inc., et al., Respondents.
    Submitted June 18, 1979;
    decided September 4, 1979
   Motion for leave to appeal dismissed and, on the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the two Appellate Division orders do not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    Ton-Da-Lay, Ltd., Appellant, v State of New York, Respondent.
    Decided September 4, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no constitutional question is directly involved, none having been raised below.


text:
    In the Matter of Allcity Insurance Company, Respondent. Mark Kondak et al., Appellants.
    Submitted June 25, 1979;
    decided September 6, 1979
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Special Term’s direction for a hearing before a referee, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution (see Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198); motion for leave to appeal otherwise denied, with $20 costs and necessary reproduction disbursements.


text:
    Elizabeth Bali, Respondent, v Board of Education of the Utica City School District et al., Appellants.
    Decided September 6, 1979
   Appeal dismissed, without costs, by the court sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light Co., 36 NY2d 754).


text:
    Alfred Barnes et al., Appellants, v City of New York et al., Defendants, and Arthur Schwartz et al., Respondents.
    Decided September 6, 1979
   Appeal dismissed, without costs, by the court sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 37, p 153; § 41, p 163).


text:
    Mary Handel, Respondent, v Thomas Handel, Appellant.
    Submitted June 25, 1979;
    decided September 6, 1979
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Special Term’s order of contempt, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $20 costs and necessary reproduction disbursements.


text:
    In the Matter of Michael X. Hurley, Appellant, v Judges of Cayuga County Court, Respondents.
    Submitted July 30, 1979;
    decided September 6, 1979
   Motion to reconsider and/or vacate the Court of Appeals order of dismissal dated June 5r 1979 denied. [See 47 NY2d 950.]


text:
    In the Matter of Yasuyo Lawrence, Appellant, v Daniel Joy, as Commissioner of the New York City Department of Rent and Housing Maintenance, Respondent.
    Submitted July 16, 1979;
    decided September 6, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed as untimely, with costs and $20 costs of motion (see Farragher v City of New York, 19 NY2d 831).


text:
    In the Matter of Lois Roberts, Respondent, v Richard Roberts, Appellant.
    Submitted July 16, 1979;
    decided September 6, 1979
   Motion to dismiss the appeal herein granted to the extent that the appeal is transferred to the Appellate Division, First Department, without costs. A direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (CPLR 5601, subd [b], par 2; Powers v Porcelain Insulator Corp., 285 NY 54). Motion for a stay dismissed as academic.


text:
    In the Matter of John A. Vogler, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted July 2, 1979;
    decided September 6, 1979
   Motions to dismiss appeal and cross appeal denied.


text:
    Livingston Arthur et al., Respondents, v Trans Urban Construction Co., Inc., et al., Appellants.
    Submitted August 13, 1979;
    decided September 11, 1979
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 40, p 161).


text:
    In the Matter of the Proceeding Pursuant to Subdivision 4 of Section 44 of the Judiciary Law in Relation to Anonymous, a Justice of the Town of ____, Appellant. State Commission on Judicial Conduct, Respondent.
    Submitted August 20, 1979;
    decided September 11, 1979
   Motion to dismiss request for review granted and request for review dismissed, with $20 costs, upon the ground that the order of the State Commission on Judicial Conduct appealed from is not reviewable by the Court of Appeals under section 22 of article VI of the New York State Constitution and subdivision 7 of section 44 of the Judiciary Law.


text:
    In the Matter of Banco de Concepcion, Respondent, v Manfra, Tordella & Brooke, Inc., et al., Respondents, and Marine Midland Bank, Appellant.
    Submitted August 13, 1979;
    decided September 11, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine a special proceeding (see Matter of Kerwin, 270 NY 564; see, also, Cohen and Karger, Powers of the New York Court of Appeals, pp 202-203). Motion for a stay dismissed as academic.


text:
    In the Matter of the Estate of Jacob Cohen, Deceased. Eisenberg & Weiss, Appellant-Respondent; Ada T. Trask, Respondent-Appellant.
    Decided September 11, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification at the Appellate Division is not in a respect which is within the power of the Court of Appeals to review (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582). Cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that cross-appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Gilbert Devore et al., Respondents, v Henry Cazalet et al., Constituting the Board of Zoning Appeals of the Incorporated Village of North Hills, Respondents, and X-Cell Realty Associates et al., Intervenors-Appellants.
    Submitted August 6, 1979;
    decided September 11, 1979
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Charles J. Hynes, as Deputy Attorney-General of the State of New York, Appellant, v Irwin Karassik, Respondent.
    Submitted July 23, 1979;
    decided September 11, 1979
   Motion for reargument or to amend the remittitur, and for an order vacating the award of costs, denied. [See 47 NY2d 659.]


text:
    In the Matter of Jose L., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Decided September 11, 1979
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the dissent at the Appellate Division was not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of Leo M. Shore, Individually and as Shareholder in Parklane Hosiery Company, Inc. Angelo C. Pappalardo et al., Respondents; Parklane Hosiery Company, Inc., Appellant.
    Submitted July 16, 1979;
    decided September 11, 1979
   Motions 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 (Cohen and Karger, Powers of the New York Court of Appeals, §§ 38, 39, pp 155-160).


text:
    Alfred J. Spremo, an Infant, by His Guardian, Alfred Spremo, Jr., et al., Appellants, v Little Flower Children’s Services et al., Respondents.
    Decided September 11, 1979
   Appeal dismissed, without costs, by the court sua sponte, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution, and upon the ground that no substantial constitutional question is directly involved.


text:
    Elizabeth Kelly, Individually and as Administratrix of the Estate of Arthur Kelly, Respondent, v M. C. Electric Co., Inc., Appellant, and New Again Construction, Inc., et al., Respondents. M. C. Electric Co., Inc., Third-Party Plaintiff-Respondent, v Contractor Sheet Metal Company, Inc., Third-Party Defendant-Appellant, et al., Third-Party Defendant.
    Decided September 13, 1979
   Cross appeal by third-party defendant Contractor Sheet Metal Company, Inc., dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that cross appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]; Wietecki v Marczan, 38 NY2d 898; Dudley v Perkins, 235 NY 448).


text:
    In the Matter of the Estate of Zoltan Sauerbrun, Deceased. Leonard Pressler, Appellant; Estate of Zoltan Sauerbrun, Respondent.
    Submitted July 30, 1979;
    decided September 13, 1979
   Motion, insofar as it seeks leave to appeal from so much of the April 19, 1979 order of the Appellate Division as affirmed the Surrogate’s Court’s denial of the motions to reopen the proceeding, dismissed upon the ground that that portion of said order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it otherwise seeks leave to appeal from the April 19, 1979 order of the Appellate Division, denied. Motion, insofar as it seeks leave to appeal from the June 14, 1979 order of the Appellate Division denying reargument or leave to appeal to the Court of Appeals, dismissed upon the ground that said order does not finally determine the proceeding within the meaning of the Constitution and upon the further ground that it involves the exercise of discretion of a type not reviewable by the Court of Appeals (Cohen and Karger, Powers of the New York Court of Appeals, § 147, p 585). Motion, insofar as it seeks leave to proceed as a poor person, dismissed as academic.


text:
    The People of the State of New York, Appellant, v Lucia Kennedy, Respondent.
    Submitted July 23, 1979;
    decided September 13, 1979
   Motion for reargument dismissed as untimely (22 NYCRR 500.9 [b]). [See 47 NY2d 196.]


text:
    The People of the State of New York, Respondent, v Roland Samuels, Appellant.
    Submitted August 20, 1979;
    decided September 13, 1979
   Motion for continuation of Appellate Division stay dated March 9, 1978 denied (see CPL 460.60, subd 1, par [a]).


text:
    Ella M. Thrower et al., Respondents, v John J. Smith et al., Appellants, and Isidoro Perez, Respondent.
    Submitted July 30, 1979;
    decided September 13, 1979
   Motion by appellant estate of Max Berens to vacate the order of the Court of Appeals, dated July 10, 1979, dismissing the appeal herein denied. [See 47 NY2d 1011.]

Cross motion for an order imposing costs denied.


text:
    Pedro V. Delgado, an Infant, by his Parent and Natural Guardian, Pedro Delgado, et al., Appellants, v Board of Education of Union Free School District No. 1 of the Towns of Greenburgh and Mount Pleasant, Defendant and Third-Party Plaintiff-Respondent. Board of Education of Mount Pleasant Central School District, Thornwood, Third-Party Defendant-Respondent.
    Argued September 13, 1979;
    decided September 18, 1979

      APPEARANCES OF COUNSEL

      Warren J. Schneider, Irving J. Neimark and Jacob W. Friedman for appellants.

      Donald A. Mead and Richard L. Magro for defendant and third-party plaintiff-respondent.

      Eugene J. McGuinness and Louis D. Broccoli for third-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Pfohl v Wipperman, 34 NY2d 597).

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


text:
    The People of the State of New York, Respondent, v Juan Freytes, Appellant.
    Argued September 10, 1979;
    decided September 18, 1979
    APPEARANCES OF COUNSEL

      Judith Preble and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Allen H. Saperstein and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and the indictment dismissed. Since the facts underlying appellant’s speedy trial claim are concededly indistinguishable from the facts which we deemed sufficient to support such a claim in People v Moore (47 NY2d 872), the result should be the same.

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


text:
    In the Matter of Janet Lindsey, Appellant, v Board of Education of Mount Morris Central School District et al., Respondents.
    Argued September 10, 1979;
    decided September 18, 1979

      APPEARANCES OF COUNSEL

      Zachary Wellman, Paul E. Klein and Janet Axelrod for appellant.

      Susan S. Robfogel and James A. Spitz, Jr., for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for consideration on the merits. The defense of failure to give notice under subdivision 1 of section 3813 of the Education Law, not having been raised in the court of original jurisdiction, was waived (Flanagan v Board of Educ., 47 NY2d 613, 617; Matter of Schlosser v Board of Educ., 47 NY2d 811).

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


text:
    The People of the State of New York, Respondent, v William Spiegel, Appellant.
    Argued September 6, 1979;
    decided September 18, 1979

      APPEARANCES OF COUNSEL

      Patrick M. Wall for appellant.

      Mario Merola, District Attorney (Daniel S. Taub and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On appeal to this court the defendant has correctly conceded the issue which divided the Appellate Division concerning the trial court’s alleged failure to charge the accomplice rule, without request or objection by the defendant. He claims however that the proof at trial is legally insufficient to sustain the conviction.

The prosecutor submitted proof that the codefendant, Bryant, withdrew large sums of money from the accounts of two patients, one of whom had not authorized withdrawals of these amounts, and the other of whom was in the advanced stages of senility; that the withdrawal checks, made out to the defendant’s nursing home, were accepted by the home and that the defendant in turn issued and personally signed checks to Bryant, generally representing one half of the face amount of the withdrawal. Although the defendant’s involvement in this scheme was documented by his own business records he claims that the proof was insufficient to show that he was anything more than an innocent dupe.

But there was also proof, including the defendant’s business records, that he used a substantial amount of the money he received to pay outstanding or uncollectible bills of other patients some of whom had left the facility, and that the remainder was often applied to the accounts of the patients who had been victimized, far in excess of the amounts due to the defendant. From this evidence, together with the magnitude, frequency and irregular nature of these transactions with Bryant, the jury could have found beyond a reasonable doubt, as it did, that the defendant was a party to the scheme to steal the money of these aged patients.

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

Order affirmed.


text:
    Bader & Bader et al., Appellants, v Henry Ford, II, et al., Respondents, et al., Defendants.
    Decided September 18, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that the modification at the Appellate Division is not in a respect which is within the power of the Court of Appeals to review (CPLR 5601, subd [a], par [iii]), and the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    Helen Cacciola, Respondent, v Joseph Cacciola, Appellant.
    Submitted September 10, 1979;
    decided September 18, 1979
   Motion for leave to appeal and, on the court’s own motion, appeal taken as of right each dismissed, without costs, upon the ground that the order of the Appellate Division does not finally determine the action within the meaning of the Constitution (Beckwith v Beckwith, 285 NY 521; see, also, Cohen and Karger, Powers of the New York Court of Appeals, § 39, p 158).


text:
    Century 21, Rexford Realty Group, Inc., et al., Appellants, v Town of Perinton et al., Respondents.
    Submitted July 23, 1979;
    decided September 18, 1979
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    Harvey Charles, Appellant, v Onondaga Community College et al., Respondents.
    Decided September 18, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    Rhetta Felton, Respondent, v Emily M. Boxer et al., Appellants.
    Submitted June 18, 1979;
    decided September 18, 1979
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as dismissed the appeal to that court from an order denying reargument, dismissed upon the ground that that portion of the order of the Appellate Division does not finally determine the action within the meaning of the Constitution; motion otherwise denied. Twenty dollars costs and necessary reproduction disbursements to respondent.


text:
    In the Matter of Quinton A., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted July 16, 1979;
    decided September 18, 1979
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Edward U. Green, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted September 17, 1979;
    decided September 18, 1979
   Petitioner’s request for review and this proceeding to review dismissed by the Court of Appeals sua sponte, without costs, for his failure to proceed in compliance with the Court of Appeals Rules Governing Judicial Review of Determinations of the State Commission on Judicial Conduct.


text:
    In the Matter of Dean H. Higgins, Appellant.
    Decided September 18, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground it does not lie (CPLR 5601).


text:
    In the Matter of ITT Continental Baking Company, Inc., Appellant, v New York State Div. of Human Rights et al., Respondents.
    Submitted July 23, 1979;
    decided September 18, 1979
   Motion for leave to appeal denied (see Matter of Russell Sage Coll, v State Div. of Human Rights, 36 NY2d 985).


text:
    In the Matter of Rappl & Hoenig Co., Inc., Respondent, v New York State Department of Environmental Conservation et al., Appellants.
    Submitted August 6, 1979;
    decided September 18, 1979
   Motion for reargument and clarification denied, with $20 costs and necessary reproduction disbursements. [See 47 NY2d 925.]


text:
    New York Bank for Savings, Respondent, v Lorenzo F. Padilla et al., Appellants.
    Submitted July 9, 1979;
    decided September 18, 1979
   Motion for leave to appeal, pursuant to CPLR 5602 (subd [a], par 1), dismissed upon the ground that defendants have an appeal pending in the Appellate Division from the judgment here sought to be appealed from. (See Parker v Rogerson, 35 NY2d 751.)


text:
    The People of the State of New York, Respondent, v Roger Belton, Appellant.
    Submitted September 10, 1979;
    decided September 18, 1979
   Motion for an extension of time and continuation of stay granted and stay continued until the determination of the appeal.


text:
    Thomas Pickard, Respondent, v Otto Koenigstreuter, Appellant, and Martin H. Van Buren, Respondent. (Action No. 1.) Martin Van Buren et al., Respondents, v Otto Koenigstreuter, Appellant. (Action No. 2.)
    Submitted July 2, 1979;
    decided September 18, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the stipulation for judgment absolute, under the facts of this case, is illusory and frustrates the very purpose of CPLR 5601 (subd [c]) (Goldberg v Elkom Co., 36 NY2d 914).


text:
    Suffolk Housing Services et al., Appellants, v Town of Brookhaven et al., Respondents.
    Decided September 18, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Rosenfeld v Robins Co., 46 NY2d 731, 771; Ross v Amrep Corp., 42 NY2d 856).


text:
    Western World Insurance Company, Inc., Appellant, v Jean & Benny’s Restaurant, Inc., et al., Respondents.
    Submitted September 4, 1979;
    decided September 18, 1979
   Cross motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]). Motion for a stay dismissed as academic.


text:
    Irene Rapp et al., Appellants, v Dime Savings Bank of New York, Respondent.
    Argued September 5, 1979;
    decided October 9, 1979

      APPEARANCES OF COUNSEL

      Sheldon V. Burnaan for appellants.

      Ralph L. Ellis and Jeffrey H. Squire for respondent.
   OPINION OF THE COURT

Memorandum.

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

On the present record, there are no factual issues concerning the legality of defendant bank’s collection policy. Defendant, as a depository or collecting bank, generally may not prohibit a customer from drawing against a check deposited in his account after a reasonable time has elapsed from receipt of a provisional settlement for that item (Uniform Commercial Code, § 4-213, subd 4, par [a]). But the parties are free to formulate their own definition of "reasonable time” by agreement, so long as the time fixed is not manifestly unreasonable (Uniform Commercial Code, § 1-204).

In support of its cross motion for summary judgment, defendant demonstrated, prima facie, that its customers had assented to a collection agreement containing specific time frames. Having failed to come forward with an evidentiary showing sufficient to raise factual questions as to the validity of this contract or the manifest reasonableness of the time fixed, plaintiffs must suffer the consequences of summary judgment (see, e.g., Connell v St. Mary’s Hosp. of Troy, 45 NY2d 944, 946; Indig v Finkelstein, 23 NY2d 728).

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

Order affirmed.


text:
    In the Matter of Mary McAulay, Appellant, v Board of Education of the City of New York et al., Respondents.
    Argued September 7, 1979;
    decided October 9, 1979

      APPEARANCES OF COUNSEL

      Lloyd McAulay for appellant.

      Allen G. Schwartz, Corporation Counsel (Ronald E. Stern-berg and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (61 AD2d 1048).

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


text:
    Robert J. McGuire, as Police Commissioner of the City of New York, Respondent, v I. Michael Krane et al., Appellants.
    Argued September 5, 1979;
    decided October 9, 1979
    APPEARANCES OF COUNSEL

      John J. Maguire for appellants.

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

Memorandum.

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

Pursuant to authority vested in the Police Commissioner by the New York City Charter, the commissioner promulgated departmental rules and regulations prohibiting both printed advertisements in publications evincing an affiliation with the police department and the solicitation of any funds or contributions which will be used in connection with a matter affecting the department or its personnel unless prior authorization was granted by the Inspectional Services Bureau. We agree with the courts below that the commissioner could, in furtherance of his express statutory duty to assume responsibility and control of the internal workings of the department and his inherent power to promote integrity and efficiency therein, restrain appellants from soliciting funds from the public by the sale of advertising space in a souvenir journal of the annual Policemen’s Ball of 1978 and from requesting donations from the public in connection with the annual affair. (Cf. Matter of Purdy v Kreisberg, 47 NY2d 354.) While the commissioner’s power to promulgate and enforce regulations, however broad, is not without limitation, it is apparent that, in the context of this case, strict enforcement of these regulations serves the legitimate public concern of ensuring integrity within the police department.

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

Order affirmed.


text:
    Mary Lettiere, as Administratrix of the Estate of Pasquale Lettiere, Deceased, Plaintiff, v Martin Elevator Co., Inc., Defendant and Third-Party Plaintiff-Appellant. Bing and Bing, Inc., Third-Party Defendant-Respondent.
    Argued September 6, 1979;
    decided October 9, 1979

      APPEARANCES OF COUNSEL

      James J. Harrington and Steven B. Prystowsky for third-party plaintiff-appellant.

      James M. McLaughlin, Jr., for third-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Henry J. Latham at the Appellate Division (62 AD2d 810).

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


text:
    Bernard Reis, Appellant, v Pfizer, Inc., Respondent.
    Argued September 7, 1979;
    decided October 9, 1979

      APPEARANCES OF COUNSEL

      Avram G. Adler, Stanley P. Kops and Edward M. Katz for appellant.

      Richard C. Browne, Joseph M. Costello, Carl Sword and Kevin Prongay for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (Thornton v Roosevelt Hosp., 47 NY2d 780).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Judge Fuchsberg concurs on constraint of Thornton v Roosevelt Hosp. (47 NY2d 780).


text:
    In the Matter of the Claim of Peter De Maio, Appellant, v Rockford Plumbing & Heating et al., Respondents. Workers’ Compensation Board, Respondent.
    Argued September 7, 1979;
    decided October 9, 1979

      APPEARANCES OF COUNSEL

      Eric I. Folgelgaren and Paul Verbesey for appellant.

      Anne M. Powell for Rockford Plumbing & Heating and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (63 AD2d 1041).

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


text:
    Howard Birnbach, Appellant, v Syracuse University et al., Respondents.
    Submitted September 10, 1979;
    decided October 9, 1979
   Motion to vacate the Court of Appeals order dated May 1, 1979 which dismissed plaintiffs motion for leave to appeal denied. [See 47 NY2d 705, 762, 800.]


text:
    In the Matter of Michael Brumer, Deceased. Daniel P. Orlan, Appellant; Mildred C. Kinnane, Respondent.
    Decided October 9, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 33, p 135).


text:
    In the Matter of the Arbitration between State Mutual Automobile Insurance Company, Appellant, and Wilfred Mercado et al., Respondents.
    Submitted August 27, 1979;
    decided October 9, 1979
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the denial of petitioner’s application to stay arbitration, granted; motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the denial of petitioner’s motions to compel joinder and discovery, dismissed upon the ground that those parts of the order are nonfinal (Cohen and Karger, Powers of the New York Court of Appeals, §§ 31, 38, 39).


text:
    Kathleen O’Connor et al., Individually and as Administratrices of the Estate of Eugene Hennelly, Deceased, Appellants, v Long Island Railroad, Respondent.
    Submitted July 30, 1979;
    decided October 9, 1979
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the grounds that, insofar as it seeks leave to appeal from the June 26, 1978 order of affirmance, it is untimely; and, insofar as it seeks leave to appeal from the January 8, 1979 order denying motion for reargument or leave to appeal, said order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Joy Adler, Appellant.
    Submitted August 13, 1979;
    decided October 9, 1979
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York, Respondent, v Thomas Wardlow, Also Known as Sonny Thomas, Appellant.
    Submitted September 4, 1979;
    decided October 9, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed upon the ground that the appellant is not presently available to obey the mandate of the Court of Appeals in the event of an affirmance (see People v Genet, 59 NY 80; People v Del Rio, 14 NY2d 165; People v Sullivan, 28 NY2d 900; People v Parmaklidis, 38 NY2d 1005).


text:
    Salvador J. Rametta, Appellant, v Dolores C. R. Kazlo, Respondent.
    Submitted August 27, 1979;
    decided October 9, 1979
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Wyandanch Union Free School District, Respondent-Appellant, v Wyandanch Teachers Association, by Wanda Williams, President, Appellant-Respondent.
    Argued September 10, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      Alan D. Oshrin for respondent-appellant.

      Deborah A. Watarz and Paul E. Klein for appellant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to the Wyandanch Teachers Association, to the extent of denying a stay of arbitration as to both grievances.

As this court recently has indicated, public policy may not be invoked in every instance where arbitration of a collective bargaining agreement threatens to encroach upon the management prerogatives of a school board (Mineola Union Free School Dist. v Mineola Teachers Assn., 46 NY2d 568, 571; Matter of Port Jefferson Sta. Teachers Assn., v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898, 899). Thus, the Appellate Division properly refused to stay arbitration of the first grievance in the demand dated November 14, 1977, which relates to the board’s alleged failure to submit a change in educational policy to an advisory professional council for its recommendations (Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., supra, at p 899).

The Appellate Division erred, however, by staying arbitration of the third grievance in the demand dated November 23, 1977. In that claim, the association averred that certain duties were imposed upon teachers in contravention of article III (subd E, par [1]) of the collective bargaining agreement. The board resists arbitration, contending that the dispute is without the ambit of the arbitration clause. Inasmuch as the clause triggering arbitration is unambiguous, extending to all controversies "affecting the meaning, interpretation or application of’ the agreement, and the association’s grievance is premised upon a specific provision of the contract, we must conclude that the parties agreed to refer their differences in this area to arbitration (Mineola Union Free School Dist. v Mineola Teachers Assn., supra, at p 572; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.],. 42 NY2d 509, 513-514). That the substantive provisions of the contract which are the subject of the grievance may be ambiguous does not serve to bar arbitration. It is a function of the arbitrator, and not the courts, to resolve any uncertainty as to those substantive rights and obligations of the parties.

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

Order modified, with costs to Wyandanch Teachers Association, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Helen Immediate, as Administratrix of the Estate of Louis J. Immediate, Deceased, Appellant, v St. John’s Queens Hospital, Defendant, and Joseph S. Spindler, Respondent.
    Argued September 10, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      Lee H. Brandon for appellant.

      Steven Di Joseph, Thomas R. Newman and Peter G. Monaghan for respondents.
   OPINION OF THE COURT

Memorandum.

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

Concededly, this medical malpractice action for wrongful death against respondent physician was not commenced within two years after decedent’s death. Appellant’s assertion in this court that the physician is estopped from asserting the Statute of Limitations by reason of his fraudulent concealment of his wrongdoing must be rejected as appellant did not assert a claim of fraud or fraudulent concealment of the alleged malpractice. Furthermore, no evidentiary facts supporting any such claim were submitted to the court by appellant in opposition to respondent’s motion for summary judgment. (Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281.)

Appellant’s contention that respondent insufficiently pleaded the Statute of Limitations is also without merit. It was sufficient under CPLR 3013 that respondent pleaded the "statute of limitations” as a defense; it was not required to identify the statutory section relied on or to specify the applicable period of limitations. Thus, respondent’s motion was properly granted.

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

Order affirmed.


text:
    June F. O’Neill, Appellant, v Board of Elections of St. Lawrence County, and William H. Power, Jr., Respondent.
    Argued October 9, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      Stephen J. Easter for appellant.

      William H. Power, Jr., respondent pro se.

   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division, noting that the finding of Special Term that petitioner instituted this proceeding in her individual capacity does not affect the outcome.

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


text:
    The People of the State of New York, Appellant, v Robert Johnson, Respondent.
    Argued September 11, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Norman S. Heller of counsel), for appellant.

      William H. Roth and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (64 AD2d 907).

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


text:
    In the Matter of the Claim of Adrilla Eddings, Appellant, v Big Jim Service Center, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Argued September 7, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      Joseph P. Kirley for appellant.

      John M. Cullen and Peter Pryor for State Insurance Fund, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (62 AD2d 1119).

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


text:
    Flemington National Bank & Trust Company (N. A.), Appellant, v Domler Leasing Corporation, Respondent, et al., Defendants.
    Argued September 11, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      Jeffrey N. Rich and Richard S. Feldman for appellant.

      Arthur Karger and David Abramowitz for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the majority at the Appellate Division, and for the reasons stated in the opinion of Mr. Justice Vincent A. Lupiano, that Domler’s obligation under the repurchase agreement did not extend to the Roselle-Twintex lease which had been assigned by Yegen to appellant bank more than two months prior to the execution of the repurchase agreement.

We find it unnecessary to reach or consider other issues.

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

Order affirmed.


text:
    Pearce, Mayer & Greer, Incorporated, Appellant, v Daniel W. Joy, as Commissioner of Department of Rent and Housing Maintenance, Respondent.
    Argued September 13, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      Gary M. Rosenberg for appellant.

      Carl Holmes and Harry Michelson for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (63 AD2d 928).

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


text:
    In the Matter of Wertheim & Co., Inc., Appellant, v Nora L. Halpert, Respondent.
    Argued September 11, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      James P. Durante and Douglas P. Catalano for appellant.

      Jonathan M. Plasse and Robert S. Churchill for respondent.
   OPINION OF THE COURT

Memorandum. .

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

Although arbitration is a favored method of dispute resolution, arbitration agreements are unenforceable where substantive rights, embodied by statute, express a strong public policy which must be judicially enforced (Matter of Sprinzen [Nomberg], 46 NY2d 623; see, also, Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621). This is especially true in the area of discrimination where particular remedies are afforded by both State and Federal statutes (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 183-184).

Allowing the petitioner to pursue its claim in arbitration at this time risks chilling the exercise of the statutory right and poses the possibility of inconsistent verdicts in the two proceedings.

Indeed, in the case at bar, the claim sought to be arbitrated, arising as it does out of a claim of discriminatory conduct in employment, is presently the subject of an action pending in Federal court under section 2000e et seq. of title 42 of the US Code, title 7 of the Civil Rights Act of 1964. Although an award in arbitration could not bind the Federal court (see Alexander v Gardner-Denver Co., 415 US 36) a verdict in the Federal proceeding might well be res judicata in any arbitration proceeding.

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

Order affirmed.


text:
    Lev Zetlin, Appellant, v Hanson Holdings, Inc., et al., Respondents, and Gable Industries, Inc., et al., Defendants.
    Argued September 12, 1979;
    decided October 11, 1979
    APPEARANCES OF COUNSEL

      Arthur D. Emil and Steven L. Cohen for appellant.

      David Parker, Stephen M. Axinn and Carol B. Schachner for James D. Moran and another, respondents.

      Adele R. Wailand and Jay Topkis for Joseph J. Sylvestri, respondent.

      Sidney O. Friedman and Abraham L. Bienstock for Hanson Holdings, Inc., and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Zetlin owned approximately 2% of the outstanding shares of Gable Industries, Inc., with defendants Hanson Holdings, Inc., and Sylvestri, together with members of the Sylvestri family, owning 44.4% of Gable’s shares. The defendants sold their interests to Flintkote Co. for a premium price of $15 per share, at a time when Gable stock was selling on the open market for $7.38 per share. It is undisputed that the 44.4% acquired by Flintkote represented effective control of Gable.

Recognizing that those who invest the capital necessary to acquire a dominant position in the ownership of a corporation have the right of controlling that corporation, it has long been settled law that, absent looting of corporate assets, conversion of a corporate opportunity, fraud or other acts of bad faith, a controlling stockholder is free to sell, and a purchaser is free to buy, that controlling interest at a premium price (see Barnes v Brown, 80 NY 527; Levy v American Beverage Corp., 265 App Div 208; Essex Universal Corp. v Yates, 305 F2d 572).

Certainly, minority shareholders are entitled to protection against such abuse by controlling shareholders. They are not entitled, however, to inhibit the legitimate interests of the other stockholders. It is for this reason that control shares usually command a premium price. The premium is the added amount an investor is willing to pay for the privilege of directly influencing the corporation’s affairs.

In this action plaintiff Zetlin contends that minority stockholders are entitled to an opportunity to share equally in any premium paid for a controlling interest in the corporation. This rule would profoundly affect the manner in which controlling stock interests are now transferred. It would require, essentially, that a controlling interest be transferred only by means of an offer to all stockholders, i.e., a tender offer. This would be contrary to existing law and if so radical a change is to be effected it would best be done by the Legislature.

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

Order affirmed.


text:
    John Stuart, Inc., Appellant, v Diriro, Inc., et al., Respondents.
    Argued September 13, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      Theodore W. Kheel, Gerald J. Fields and Raymond J. Sofñentini for appellant.

      Bernard Gartlir, Norman Gross and Donald M. Weisberg for Diriro, Inc., and another, respondents.

      William M. Kufeld and Meyer K. Sanoff for Dime Savings Bank of New York, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (66 AD2d 682).

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


text:
    The People of the State of New York, Appellant, v James Cannarozzo, Respondent.
    Argued September 10, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      Lawrence T. Kurlander, District Attorney (Douglas Jones of counsel), for appellant.

      Norman A. Palmiere for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by Mr. Justice Richard D. Simons at the Appellate Division (62 AD2d 503).

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


text:
    In the Matter of Alice Johnson et al., Appellants, v Daniel W. Joy, as Commissioner of the Department of Rent and Housing Maintenance, et al., Respondents.
    Argued September 13, 1979;
    decided October 11, 1979

      APPEARANCES OF COUNSEL

      Carol Ule for appellants.

      Alan W. Ginsberg and Harry Michelson for respondents.
   OPINION OF THE COURT

Memorandum.

The petitioner tenants’ protest, which the commissioner denied, is based on the argument that with respect to a rent increase resulting from rehabilitation of housing accommodations with government assisted financing, once the commissioner grants an increase he is, as to that ground for allowing an increase, functus officio. That contention is predicated upon the words "individual adjustment of maximum rents” in section Y51-5.0 (subd g, par [1]) of the Administrative Code and the words "an appropriate adjustment” in section 33.9 of the city Rent, Eviction and Rehabilitation Regulations.

The Administrative Code language cannot be so construed, for the obvious purpose of the quoted words, which appear in the preamble to a number of subdivisions providing various means by which rents may be increased, is that each adjustment shall be considered separately or individually. The word "individual” in the context of the preamble cannot reasonably be read as "one and only one”.

The words "an appropriate adjustment” in the regulations present a closer question for they are expressed in the singular. We are, however, admonished by section 35 of the General Construction Law that "[w]ords in the singular number include the plural”. Petitioners’ construction limiting the commissioner to but one increase ignores the word "appropriate” and the purpose behind the rehabilitation provision, upon which the Appellate Division relied and which would be denigrated were it to be held that the commissioner, having concluded on the basis of figures presented to him that the increase first granted was not "appropriate” because insufficient, nevertheless could not modify it because the regulation speaks only of "an * * * adjustment”. When the three words on which petitioners rely are read in context and in light of the purpose of the regulation, the commissioner’s construction of the regulation is clearly reasonable (see People v Gates, 56 NY 387; cf. Culver v Title Guar. & Trust Co., 296 NY 74, 78). It is, moreover, hornbook law that the construction given statutes and regulations by the agency responsible for their administration will, if not irrational or unreasonable, be upheld (Matter of Howard v Wyman, 28 NY2d 434, 438).

Petitioners’ notice argument is based not on due process but on the provisions of the regulations and the concept that since the increase could not be granted under section 33.9 it must necessarily have been granted under section 33.5 as a hardship increase, which under the regulations would require notice to tenants. As above noted, the premise of that contention does not withstand analysis.

The order of the Appellate Division reinstating the commissioner’s order denying petitioners’ protest should, accordingly, be affirmed.

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

Order affirmed, with costs, in a memorandum.

       While applicable in terms only to statutes section 110 of the General Construction Law may be used by analogy in the construction of the regulations here in issue (see People ex rel. Hart v Goodrich, 92 App Div 445, affd on opn below 180 NY 522).


text:
    Howard Corning, Jr., et al., Appellants, v Village of Laurel Hollow, Respondent.
    Argued September 11, 1979;
    decided October 11, 1979
   Reargument ordered and case set down for argument or submission on November 12, 1979.


text:
    In the Matter of the County of Westchester et al., Appellants, v Rent Guidelines Board of Westchester County et al., Respondents.
    Decided October 11, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of Muriel Siebert, as Superintendent of Banks of the State of New York, Respondent. Citizens Savings and Loan Association of New York, Appellant.
    Submitted August 27, 1979;
    decided October 11, 1979
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division denying leave to appeal to the Court of Appeals, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $20 costs and necessary reproduction disbursements.