author: Simons, J.

text:
    In the Matter of Anthony A. Molea, as Acting District Attorney of Westchester County, Respondent, v Carmine C. Marasco, as Judge of the County Court, Westchester County, et al., Respondents, and Kevin Magee, Appellant.
    Argued November 20, 1984;
    decided December 20, 1984

      APPEARANCES OF COUNSEL

      David B. Weisfuse and Stephen J. Pittari for appellant.

      Carl A. Vergari, District Attorney (Diane E. Selker, Gerald D. Reilly and Anthony J. Servino of counsel), for petitioner-respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

Defendant was charged in a felony complaint with attempted rape in the first degree and burglary in the first degree. After he rejected a plea offer, his counsel, the District Attorney and the court agreed that a preliminary hearing would be held. At the beginning of the hearing, defense counsel made an application to waive his client’s presence so as to prevent a suggestive identification. The Town Court Justice granted the application, noting that “[t]he District Attorney also has statutory authority to present evidence to a grand jury independent of defendant’s right to a felony hearing and a failure to appear.” The felony hearing was then rescheduled, but on the rescheduled date the People moved, over defendant’s objection, for an adjournment so that the matter could be presented directly to the Grand Jury. The adjournment was granted, the matter was presented to the Grand Jury and defendant was indicted for attempted rape in the first degree and burglary in the first degree. After arraignment in County Court defendant moved to dismiss the indictment for, among other grounds, the People’s failure to conduct a preliminary hearing or, in the alternative, for a postindictment felony hearing.

The County Court Judge, in a decision stating that “a defendant has an absolute right to waive his presence at a preliminary hearing” and that “defendant has been deprived of a substantial right and this Court must determine whether the indictment should be dismissed with leave to present to another grand jury after defendant is afforded a preliminary hearing”, granted the motion to the extent of ordering a preliminary hearing at the Town Court and staying all proceedings pending that hearing. The District Attorney then brought on the instant proceeding to prohibit respondents, the County Court Judge and the Town Court Justice, from enforcing the County Court order, on the ground that the County Court had exceeded its jurisdiction.

The Appellate Division granted the application and enjoined the holding of the hearing, stating that County Court had exceeded its jurisdiction and that the grounds stated in the motion were not sufficient in law to warrant dismissal of the indictment (102 AD2d 1022).

Prohibition lies where there is a clear legal right and where a court acts without or in excess of jurisdiction over the subject matter, but does not lie, even if there has been an excess of jurisdiction, if there is available an adequate remedy, by way of appeal or otherwise (Matter of Morgenthau v Erlbaum, 59 NY2d 143; Matter of Morgenthau v Altman, 58 NY2d 1057; Matter of State of New York v King, 36 NY2d 59; see Matter of Schumer v Holtzman, 60 NY2d 46).

Here, because it was clear that if the hearing ordered by County Court was not held the indictment would be dismissed and the People have a right to appeal from such a dismissal (CPL 450.20, subd 1), there was an adequate remedy other than prohibition.

Moreover, it cannot be said under the circumstances of this case that a clear legal right of the District Attorney was threatened by the order of the County Court, his office having agreed to the holding of a preliminary hearing without conditioning its agreement upon defendant’s presence at the hearing. Involved at most for the District Attorney so far as defendant’s nonappearance was concerned was the inconvenience of having to establish defendant’s identity by a means other than corporeal identification (cf. People v Brewster, 63 NY2d 419). True, the People, absent agreement, would have the right to seek an indictment before a preliminary proceeding had been held, but in light of their agreement it cannot be said that the County Court’s order was in excess of jurisdiction any more than was the order involved in Matter of Morgenthau v Altman (supra), which concerned the order in which witnesses were to be presented before the Grand Jury. At most, it was an error of law not reviewable by prohibition, even though there may not have been (as here there was) a right of review by way of appeal.

Simons, J.

(dissenting). Kevin Magee, appellant here and defendant in the underlying criminal prosecution, stands indicted for the crimes of burglary in the first degree, attempted rape in the first degree, sexual abuse in the first degree and assault in the third degree. After his indictment he moved in County Court for an order directing the District Attorney to conduct a preliminary hearing, asserting that he had been deprived of a substantial right because the District Attorney submitted the charges to the Grand Jury after a preliminary hearing had been scheduled in Town Court but before it had been conducted. Defendant premised his motion on his claim that the District Attorney had intended to use the hearing for an identification show up and that he had reneged on an agreement to proceed in Town Court because defendant had waived his appearance at the preliminary hearing and Town Court had confirmed his right to do so. Respondent County Judge granted the motion, directing the Town Court to conduct the hearing and staying all further proceedings until it was completed. Whether defendant could waive his appearance at a preliminary hearing or whether the District Attorney was seeking to “retaliate” against him for doing so, as defendant claims, is irrelevant. County Court could not confer jurisdiction upon a local court contrary to applicable constitutional and statutory provisions or grant defendant discovery rights where none exist. I would therefore affirm the judgment.

It is familiar law that the extraordinary remedy of prohibition lies only when necessary to prevent a body or officer acting in a judicial or quasi-judicial capacity from proceeding or threatening to proceed without or in excess of its jurisdiction (Matter of Schumer v Holtzman, 60 NY2d 46, 51; Matter of Vega v Bell, 47 NY2d 543, 547; Matter of Proskin v County Ct, 30 NY2d 15,18). Although the remedy has usually been limited to cases in which a court acts or threatens to act without jurisdiction, it is equally clear that the writ may'be granted not only to restrain an unwarranted assumption of jurisdiction but also to restrain an inferior court from exceeding its authorized powers in a matter over which it has jurisdiction (Matter of Proskin v County Ct., supra; Matter of Lee v County Ct, 27 NY2d 432, 436-437, cert den 404 US 823; Matter of Hogan v Court of Gen. Sessions, 296 NY 1, 8; People ex rel. Lemon v Supreme Ct., 245 NY 24, 35). Important corollaries to these rules hold that a prohibition court should not exercise its discretion to grant relief, even if jurisdiction is in issue, absent a clear legal right to the remedy (Matter of Schumer v Holtzman, supra; Matter of Vega v Bell, supra; Matter of Dondi v Jones, 40 NY2d 8, 13; Matter of State of New York v King, 36 NY2d 59, 62-63) and that the writ is not available as a collateral means to attack legal error (Matter of State of New York v King, supra; Matter of Roberts v County Ct., 34 NY2d 246, 248).

Inasmuch as the judgment under review enjoins threatened actions of respondent Town Justices only, our inquiry must be directed to the jurisdiction of that court following indictment and, relatedly, to the power of County Court to confer jurisdiction on it to correct what County Court evidently perceived as a denial of defendant’s discovery rights.

The Constitution provides that Town Courts shall have such jurisdiction as the Legislature shall provide except that the Legislature may not grant Town Courts jurisdiction to try felonies prosecuted by indictment (NY Const, art VI, § 17; see, also, id., § 15, subd c; § 16, subd d). Town Courts, along with other local courts, possess “preliminary jurisdiction” over felony charges but that jurisdiction is limited to arraigning defendants on felony complaints, assigning counsel, setting bail and, unless defendant waives the right, to conducting a preliminary hearing (CPL 1.20, subd 25; 10.30, subd 2; 180.10 et seq.). The purpose of the preliminary hearing is to determine if there is sufficient evidence to establish reasonable cause to believe defendant has committed a felony and therefore to warrant holding him for the action of the Grand Jury (CPL 180.10, subd 2; 180.70). If the magistrate determines that reasonable cause does not exist for the charge specified in the felony complaint, he may reduce the charge to one the evidence will support or dismiss the complaint and release defendant from jail or exonerate his bail (CPL 180.30, 180.50, 180.70). Defendant has no constitutional or statutory right to a preliminary hearing, however (United States ex rel. Hughes v Gault, 271 US 142,149; Goldsby v United States, 160 US 70, 73; People ex rel. Hirsehberg v Close, 1 NY2d 258, 261; People v Aaron, 55 AD2d 653, 654; People v Abbatiello, 30 AD2d 11, 12), nor is it a jurisdictional predicate to indictment (see People v Hodge, 53 NY2d 313, 319-320; People ex rel. Hirsehberg v Close, supra). And that is so even when the local court is authorized to make a unique disposition and direct removal of the charges to Family Court for treatment of the defendant as a juvenile offender rather than an adult (Matter of Vega v Bell, 47 NY2d 543, supra; see CPL 180.75). If the District Attorney refuses or neglects to proceed with a hearing contrary to defendant’s wishes, the remedy for that failure is not to dismiss the complaint but to release defendant on his own recognizance (CPL 180.80).

The Grand Jury presentment serves the same purpose as a preliminary hearing before a magistrate; it provides a means to determine reasonable cause (CPL 190.60, 190.65). The District Attorney may proceed initially by indictment or he may supersede the Town Court at any time by submitting the charges to the Grand Jury (see CPL 10.30, subd 2; 190.55, subd 2). The Grand Jury is not bound by anything occurring before the magistrate. It has the power to indict even if there has been a preliminary hearing and regardless of its outcome (see People ex rel. Hirschberg v Close, supra). Once the Grand Jury acts the Town Court is divested of jurisdiction (CPL 180.80, subd 2). The District Attorney has a clear legal right to submit the charges to a Grand Jury and he may do so without filing a felony complaint or before or after a preliminary hearing if a felony complaint is filed.

Defendant does not dispute any of this. Moreover, he acknowledges that a postindictment preliminary hearing serves no purpose except discovery. It is his claim, however, that he is entitled to a hearing for that purpose because once the District Attorney had agreed to a preliminary hearing he could not frustrate defendant’s discovery of the identity of the People’s witnesses and the substance of their testimony by subsequently backing out of the agreement. In support of this claim, he relies on dicta found in People v Hodge (53 NY2d 313, supra) and out-of-State decisions stating the minority rule that a defendant possesses a right to a preliminary hearing for discovery purposes (see, e.g., Ross v Sirica, 380 F2d 557 [DC Cir]; Hawkins v Superior Ct., 22 Cal 3d 584; State v Freeland, 295 Ore 367; but see, e.g., United States v Anderson, 481 F2d 685 [4th Cir]; Coleman v Burnett, All F2d 1187 [DC Cir]; United States v Daras, 462 F2d 1361 [9th Cir]; United States v Milano, 443 F2d 1022 [10th Cir]; United States v Coley, 441 F2d 1299 [5th Cir]; Sciortino v Zampano, 385 F2d 132 [2d Cir]; Dillard v Bomar, 342 F2d 789 [6th Cir]; Vincent v United States, 337 F2d 891 [8th Cir]).

In New York discovery in criminal cases is governed by statute (CPL arts 240, 250) and generally a defendant is not entitled to pretrial disclosure of the identity of a prosecution witness (see CPL 240.20, subd 1; and see, generally, Pitler, NY Criminal Practice under the CPL, Discovery, pp 459-477). In a few exceptional cases we have permitted inquiry by the trial court to determine if certain witnesses’ testimony might be exculpatory and their identity thus discoverable under the rule in Brady v Maryland (373 US 83; see, e.g., People v Andre W), 44 NY2d 179 [eyewitness identification]; People v Goggins, 34 NY2d 163, cert den 419 US 1012 [informant]). Nothing in the statute or in our decisions, however, recognizes a general right in the defendant to discover pretrial not only the identity of the prosecution’s witnesses but also the substance of their testimony or grants a defendant a right to a preliminary hearing for that purpose.

Our decision in People v Hodge (53 NY2d 313, supra) is not to the contrary. In that case, a preindictment preliminary hearing had been held over defendant’s objection in the absence of his counsel. We held that the hearing was a critical stage of the criminal process and that defendant was entitled to the assistance of counsel under the provisions of the Constitution and the Criminal Procedure Law (see CPL 180.10, subd 3). We therefore reversed and ordered a new trial. In an opinion which cited several trial manuals we noted the obvious, that one of the collateral benefits of a preliminary hearing was that it provided an observant defense counsel with a welcome opportunity for discovery. We did not hold, however, that a defendant was entitled to a preliminary hearing so that he could discover the identity of the People’s witnesses and the substance of their testimony. Defendant has no cognizable right to that relief and County Court’s order was in excess of its authority because it lacked power to confer jurisdiction on another court or to provide that relief (see Matter of Proskin v County Ct., 30 NY2d 15, supra).

Finally, it should be noted that the sanction County Court imposed upon the People for noncompliance with its order was not a conditional dismissal which could be corrected on appeal as the majority contend. Rather, County Court checkmated the District Attorney in the performance of his constitutional duty to prosecute crime by staying proceedings on the indictment indefinitely until he complied with its order. Unless the District Attorney may proceed by prohibition, he is left without a remedy.

In short, the District Attorney had a clear legal right to remove the charges from Town Court and submit them to the Grand Jury. Inasmuch as he did so and the Grand Jury indicted, respondent Town Justices lost jurisdiction of the proceeding and are now threatening to act without jurisdiction. Prohibition was not only available under these circumstances, but it was a sound and proper exercise of discretion by the Appellate Division to grant it.

Chief Judge Cooke and Judges Jones, Wachtler and Meyer concur in memorandum; Judge Simons dissents and votes to affirm in an opinion in which Judges Jasen and Kaye concur.

Judgment reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Ted Is Back Corporation, Respondent. Lillian Roberts, as Commissioner of Labor, Appellant.
    Decided December 20, 1984
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Frederick M. Paola and Peter Sherwood of counsel), for appellant.

      Michael A. Haskel for respondent.
   OPINION OF THE COURT

Memorandum.

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

The decision of the Unemployment Insurance Appeal Board that an employment relationship exists between Ted Is Back Corporation and its salespeople is not supported by substantial evidence in the record. Although a determination that an employer-employee relationship exists may rest upon evidence that the employer exercises either control over the results produced or over the means used to achieve the results (Matter of 12 Cornelia St. [Ross], 56 NY2d 895, 897; Matter of Sullivan Co. [Miller], 289 NY 110, 112), control over the means is the more important factor to be considered. Thus, incidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship.

The administrative law judge emphasized the importance of the fact that the salespeople acted as agents for the corporation and that the corporation retained the right to approve the final price negotiated by them. That these salespeople acted as agents cannot be decisive, for this is equally true where salespeople are determined to be independent contractors (see, e.g., Matter of Levine [Miller], 258 App Div 1023, affd 283 NY 577; Matter of Waroshill, 263 App Div 546). Nor is approval of price determinative for this is no more than the kind of incidental control over results that is “a necessarily wise business decision” (Matter of Green Engraving Corp. [Roberts], 95 AD2d 904, 905). Here, the evidence does not support a finding of control over the means of achieving the results. The salespeople worked at their own convenience, were free to hold outside employment and were not limited to any particular territory. They were not reimbursed for expenses and received no salary or drawing account, but were paid strictly on a commission basis. No taxes were withheld from their compensation. The corporation sometimes provided its salespeople with leads to potential sales, but when the sale resulted, 10% of the contract price was deducted before computing the salesperson’s commission to compensate the corporation for the lead. That it provided leads and retained the right to approve the contract price and supplied form contracts for their use does not constitute substantial evidence to sustain the Unemployment Insurance Appeal Board’s decision (Matter of 12 Cornelia St. [Ross], supra; Matter of Sullivan Co. [Miller], supra).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

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


text:
    In the Matter of Adirondack Mountain Reserve, Appellant, v Board of Assessors of the Town of North Hudson, Respondent. (And Another Proceeding.)
    Argued November 20, 1984;
    decided December 20, 1984
    APPEARANCES OF COUNSEL

      David Sive, Robert J. Kafin, Daniel Riesel, Janet D. Smith and William R. Ginsberg for appellant.

      Edward J. Trombley for respondent.

      Robert Abrams, Attorney-General (Lawrence A. Rappoport, Peter H. Schiff, James A. Sevinsky, and N. Philip Wardwell of counsel), for Henry G. Williams, as Commissioner of Environmental Conservation of the State of New York, amicus curiae.

      John J. Loflin, John Grimmer and Ruth E. Ross for Adirondack Council and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

The appeal taken as of right should be dismissed, without costs, upon the grounds that (1) no appeal lies as of right from the unanimous affirmance by the Appellate Division with respect to unconsolidated proceeding No. 1 (CPLR 5601), and (2) the dissent with respect to proceeding No. 2 is not on a question of law (CPLR 5601, subd [a], par [i]). On the court’s own motion leave to appeal is granted to petitioner and the order of the Appellate Division is affirmed, with costs.

Petitioner instituted these proceedings pursuant to article 7 of the Real Property Tax Law to review assessments on its real property in Essex County. It contends that the assessments should have been reduced because in 1978 it conveyed over 9,000 of the approximately 16,000 acres it owned to the State and granted the State a conservation easement burdening the retained lands. There is support in the record for the trial court’s finding, affirmed by the Appellate Division (99 AD2d 600), that the easement did not diminish the highest and best use of petitioner’s retained property. There are also affirmed factual findings as to the value of the property on the taxable status date. The matter is therefore beyond the scope of our review.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Appeal taken as of right dismissed, without costs. On the court’s own motion, leave to appeal granted to petitioner. Order affirmed, with costs, in memorandum.


text:
    Bertram Cohen et al., Appellants, v Brown, Harris, Stevens, Inc., et al., Respondents.
    Decided December 20, 1984

      APPEARANCES OF COUNSEL

      John Van Der Tuin for appellants.

      M. William Scherer for respondents.
   OPINION OF THE COURT

Memorandum.

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

This case involves a dispute over two rooms in the building located at 180 East 79th Street in Manhattan in which plaintiffs own a residential cooperative apartment. Plaintiffs have rented the two rooms for $50 per month per room for the benefit of their maids since 1979; however, there has never been a written lease between the parties. In 1982, the cooperative’s board decided that the maids’ rooms could be put to a more profitable use and sent letters to all tenant-stockholders stating that the board had decided to assign shares to the maids’ rooms and sell them. The letter solicited sealed bids for purchase of the rooms. Plaintiffs protested the board’s offering plan and were given the opportunity to buy the shares at $20,000 per room. Plaintiffs initially agreed to that price but negotiations broke down over the cost of maintenance and the board’s offer was withdrawn. Upon investigation of its alternatives, the board discovered that the two rooms in question could be combined with two other rooms and the group of rooms could be rented as a professional office for approximately $1,500 per month. In order to pursue this course, the board sent plaintiffs a 30-day notice advising them that their tenancy would, terminate as of November 30, 1982. This action for injunctive and declaratory relief followed.

Speqial Term denied defendants’ motion for summary judgment on the ground that plaintiffs had failed to join the two maids as necessary parties. In addition, the action was stayed for 90 days to allow defendants an opportunity to commence holdover proceedings in Civil Court. Instead, defendants appealed to the Appellate Division, which court reversed the order of Special Term on the ground that the maids were not indispensable parties, and granted defendants’ motion for summary judgment on the ground that there were no factual or legal arguments presented to preclude such relief.

Plaintiffs claim they are entitled to relief based on several theories.

First, they urge promissory estoppel based upon their claim that at the time they purchased their cooperative apartment, representatives of defendants told them that the existing occupants of the maids’ rooms would be permitted to retain occupancy until they voluntarily relinquished the rooms and that when the rooms became available, plaintiffs would be entitled to lease the rooms for “so long as they desire and need to do so.” Plaintiffs further contend that in reliance on the promise of continued occupancy, they expended “thousands of dollars” and made “substantial, permanent improvements to the rooms.” As defendants contend, however, the doctrine of promissory estoppel may not be used to preclude the raising of the Statute of Frauds as an affirmative defense to the enforcement of an oral lease (see Tribune Print. Co. v 263 Ninth Ave. Realty, 88 AD2d 877, affd 57 NY2d 1038).

Next, plaintiffs contend that the rooms at issue are within the coverage of the Emergency Tenant Protection Act of 1974 (Administrative Code of City of New York, § YY51-3.0). That claim must be rejected because subdivision a of section YY51-3.0 specifically excludes dwellings “owned as a cooperative or as a condominium” from the coverage of the statute. Plaintiffs contend that a landlord-tenant relationship between defendants and themselves exists and therefore the mere fortuity that the rented rooms are located in a cooperative apartment building should not exclude the rooms from rent control. This argument, however, ignores the fact that any landlord-tenant relationship between the parties is clearly incidental to plaintiffs’ status a& shareholders in the cooperative apartment corporation. The rent control law was enacted to protect tenants from overreaching and abusive landlords and it simply is not adaptable to situations such as this where the same party is both a “tenant” and a shareholder in the landlord corporation (see Minton v Domb, 63 AD2d 36).

Finally, plaintiffs’ fraud cause of action based on defendants’ alleged failure to comply with the disclosure provisions of the Martin Act (General Business Law, § 352-e et seq.) was also properly dismissed because of their failure to allege any injury inuring to them because of defendants’ alleged failure to comply with the Martin Act (see Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403, 407).

We have considered plaintiffs’ remaining arguments and find them without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Gary L. Miles, Appellant.
    Decided December 20, 1984

      APPEARANCES OF COUNSEL

      Kevin P. Bradley for appellant.

      Larry D. Bates, District Attorney (Joseph E. Damrath of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court, Steuben County, should be affirmed.

Defendant was charged by misdemeanor information with issuing a bad check in violation of subdivision 1 of section 190.05 of the Penal Law. On his appeal, he alleges that the information is jurisdictionally defective because it does not “contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges” (CPL 100.15, subd 3) that at the time he uttered the check he knew he had insufficient funds and that he believed or intended that payment would be refused.

It is undisputed that the information states the nonwaivable jurisdictional predicate to a valid criminal prosecution, i.e., the offense with which defendant is charged, each element thereof and that defendant committed it (see People v Hall, 48 NY2d 927, 928; People v Case, 42 NY2d 98, 99; see, also, CPL 100.40, subd 1). Contrary to defendant’s contention, the information also sets forth sufficient evidentiary facts by alleging that defendant knew of his insufficient funds and intended or believed payment would be refused. This fulfilled the twofold purpose of an information, which is to inform defendant of the nature of the charge and the acts constituting it so that he may prepare for trial and protect himself from being tried again for the same offense (see CPL 100.15, subd 3; People v McGuire, 5 NY2d 523, 526). The People’s proof on these issues was properly left for trial. People v Shapiro (61 NY2d 880) is not to the contrary. The information in that case contained a mere five-word factual allegation that defendant failed to keep left and omitted the essential allegation that the driver’s view was obstructed so as to create a hazard (see Vehicle and Traffic Law, § 1125, subd [a], par 1).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

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


text:
    Helen Kleinberg et al., Appellants, v Ambassador Associates et al., Respondents.
    Decided December 20, 1984

      APPEARANCES OF COUNSEL

      Barry S. Gedan for appellants.

      Jeremy D. Morley for respondents.
   OPINION OF THE COURT

Memorandum.

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

Although it appears that the parties may have agreed orally to settle a prior proceeding, the terms of such settlement were not made “definite and complete” in open court (see Matter of Dolgin Eldert Corp., 31 NY2d 1,10) and there was no agreement in writing enforceable pursuant to CPLR 2104. Thus Special Term properly granted summary judgment in favor of defendants dismissing the complaint in this action to enforce a stipulation of settlement.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

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


text:
    County of Westchester, Plaintiff, v Welton Becket Associates et al., Defendants. (And Third and Fourth-Party Actions.) (Action No. 1.) J. R. Stevenson Corp., Appellant, v County of Westchester, Respondent, et al., Defendants. (And Third, Fourth, Fifth and Sixth-Party Actions.) (Action No. 2.) Martin Mechanical Corporation, Plaintiff, v County of Westchester et al., Defendants. (And Third and Fourth-Party Actions.) (Action No. 3.) Luna Industries, Inc. (Luna Electric Company Division), Appellant, v County of Westchester, Respondent, et al., Defendant. (And Third and Fourth-Party Actions.) (Action No. 4.)
    Decided December 20, 1984
   Appeals by Luna Industries, Inc., and J. R. Stevenson Corp. dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that so much of the Appellate Division order as aggrieves appellants does not finally determine the actions within the meaning of the Constitution.


text:
    Miguel Garcia, Appellant, v City of New York, Respondent, and Gregory Arroyo, Defendant.
    Submitted October 15, 1984;
    decided December 20, 1984
   Motion for leave to appeal, etc., dismissed, with $20 costs and necessary reproduction disbursements to respondent City, upon the ground that the prior order of the Appellate Division sought to be appealed from does not finally determine the action within the meaning of the Constitution; however, if that prior order “necessarily affects” the final determination, it may be reviewed upon plaintiff’s pending appeal taken as of right from the final order of the Appellate Division (CPLR 5501, subd [a], par 1; see Matter of Aho, 39 NY2d 241, 248).


text:
    In the Matter of the Arbitration between the Town of Haverstraw, Respondent, and Rockland County Patrolmen’s Benevolent Association, Appellant.
    Submitted December 3, 1984;
    decided December 20, 1984
   Motion to dismiss the appeal denied.


text:
    William H. Mountain, III, Respondent, v Vicki Scott et al., Constituting the Board of Elections of the County of Cattaraugus, et al., Respondents, Anthony J. De Rose, Appellant, and Andrew S. Waterman, Intervenor-Appellant.
    Submitted December 10, 1984;
    decided December 20, 1984
   Motion by appellant De Rose for leave to appeal granted. Motion by intervenor-appellant Waterman for leave to appeal denied on the ground an appeal lies as of right (CPLR 5601, subd [a], par [iii]).


text:
    Eileen Santucci et al., Appellants, v Theresa Pearsall, Respondent.
    Submitted September 10, 1984;
    decided December 20, 1984
   Motion for leave to appeal dismissed upon the ground that the papers submitted do not comply with the requirements of section 500.11 (d) of the Court of Appeals Rules of Practice, including the requirement of demonstrating timeliness of the motion for leave to appeal made at the Appellate Division (22 NYCRR 500.11 [d]).


text:
    The People of the State of New York, Respondent, v Jesus Woods, Appellant.
    Decided December 27, 1984

      APPEARANCES OF COUNSEL

      Gordon Ludwig for appellant.

      Mario Merola, District Attorney (Harold K. King, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In view of the findings of fact that the officers had reasonable grounds to fear for their safety, it cannot be said that they were unjustified in drawing their handguns as a precautionary measure when they approached defendant in his automobile. (See People v Chestnut, 51 NY2d 14, 21.) Nor was it unreasonable, in light of his past experience with defendant, for one of the officers to pat defendant in the chest area when defendant quickly reached toward the breast area of his jacket, and for that officer, upon feeling a hard object, to reach inside the jacket and retrieve it. (See People v Benjamin, 51 NY2d 267, 271; Pennsylvania v Mimms, 434 US 106,111-112.) Nor can we conclude, as a matter of law, that the police perpetrated a pretext stop or arrest.

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

Chief Judge Cooke' and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

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


text:
    The People of the State of New York, Respondent, v Richard Rodriguez, Appellant.
    Decided December 27, 1984

      APPEARANCES OF COUNSEL

      Steven J. Cohen and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Steven J. Barnes and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of grand larceny in the third degree: He appeals from an order affirming the judgment of conviction bringing up for review an order denying suppression of pretrial identifications in addition to the trial court’s alleged error in denying his motion to exhibit his tattooed hands in evidence.

On September 2, 1981, at approximately 5:00 p.m., Joann Blaha was walking along Broadway with a companion when she noticed a man running toward her. The man was heavyset and of average height and he sported a red afro haircut and a full red beard. As the man came alongside Blaha he ripped a gold chain off her neck. The victim immediately gave chase for several blocks. After turning onto a side street, the man slowed his pace and Blaha was able to approach him from behind. Blaha began to curse the thief, who turned and faced her directly before resuming his flight. A male passerby joined in the renewed pursuit, yet the thief managed to hail a taxi and escape.

On September 8,1981, Blaha was introduced to Police Officer Daniel Murphy. In their conversation, Blaha told the officer of her recent experience and she described the chain snatcher. Officer Murphy told her that he had recently arrested a chain snatcher who fit her assailant’s description. Subsequently, Officer Murphy telephoned Blaha and requested that she come to the station to examine some photographs. He informed her that a suspect would be among those in the photo array. Blaha was shown six black and white photographs that had been converted from color shots. She chose defendant’s photo from among the group within 20 seconds. Officer Murphy thereupon showed Blaha the original color shot of defendant, which she also identified as the chain snatcher. Two months later, Blaha returned to the station to observe a lineup of six persons, including, she was informed, the person whom she had chosen from the photo array. She identified defendant as the thief despite the fact that he had shortened and lightened his hair, shaved his beard and lost weight in the interim.

Following a Wade hearing, the hearing court denied defendant’s motion to suppress the pretrial identifications as well as the victim’s prospective in-court identification of defendant. Although noting several improprieties by Officer Murphy — telling the victim that he had a suspect, showing her a color photograph of defendant after she had chosen him from the black and white array and telling her that the person she had chosen would be in the subsequent lineup — the court found that those improprieties tainted neither the pretrial identifications nor the prospective in-court identification and that the identifications were based on the victim’s independent recollection of defendant from the theft and chase.

At trial, the victim recounted her lineup identification, noting the significant changes in defendant’s appearance. She also recognized a photograph of defendant that had been taken four days after the theft. Neither the victim’s companion at the time of the theft nor the passerby who assisted her in the chase was able to identify defendant at trial.

The Trial Judge denied a motion by defense counsel to introduce into evidence defendant’s hands, which were tattooed. The motion was denied for lack of a proper foundation inasmuch as there was no proof that defendant had the tattoos on the day of the theft. For the same reason the court denied defense counsel’s request to take the stand and testify that defendant had the tattoos when she first met him four days after the theft. Finally, the court denied a request that defendant be allowed to testify, without being subject to cross-examination regarding past convictions, that he possessed the tattoos on the date in issue.

The jury returned a guilty verdict against defendant, and he was sentenced to two to four years. The Appellate Division unanimously affirmed.

In urging reversal of his conviction, defendant argues that the pretrial identification procedures were so suggestive as to require a per se suppression under our holding in People v Adams (53 NY2d 241). Unlike the situation in Adams, however, where “under no view of the evidence could it be said that the station house identification was not suggestive” (id., at p 248), there is sufficient evidence here to support the suppression court’s finding that the identification procedures were not unduly suggestive. This court has held that an identification is not automatically contaminated by an officer’s remark that a suspect is in custody (People v Logan, 25 NY2d 184,192). Similarly, the display of defendant’s color photograph after the victim had chosen his black and white photo from an array, and the indication to the victim that the person whose photo she had chosen would be in the subsequent lineup did not present a serious risk of influencing the victim’s identification of defendant from the lineup, particularly in light of the significant changes in defendant’s appearance between the time of the photograph and lineup. The present case is markedly different from People v Rahming (26 NY2d 411,415), in which the police told the victim that they would “bring out the man that she had picked out” in the photographic array, and thereupon produced the defendant, standing alone, whom the victim identified.

Because the pretrial identifications here were not unduly suggestive, they were properly admitted at trial. For the same reason, defendant’s contention that the in-court identification was tainted by the pretrial procedures must fail and we need not consider whether the in-court identification was based on the victim’s independent recollection of defendant from the theft and the chase.

Finally, the trial court did not abuse its discretion in refusing to allow defendant to display his tattooed hands in evidence or defense counsel to testify as to the appearance of defendant’s hands four days after the theft inasmuch as defendant offered no proof regarding the presence of the tattoos on the date in issue (see People v Shields, 81 AD2d 870). There likewise was no abuse in the court’s refusal to allow defendant to testify on this point, which testimony clearly would implicate his credibility, without being subject to cross-examination concerning his past convictions.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

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


text:
    The People of the State of New York, Respondent, v Robert Walker, Appellant.
    Decided December 27, 1984

      APPEARANCES OF COUNSEL

      Barry Stendig and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The evidence showed that the defendant, in the culmination of a long-standing disagreement, shot and killed the victim in a bar after an argument over money, which the victim claimed was owed him, and after the victim placed his hand on the defendant’s plate of food. Under these circumstances the trial court was not obligated to charge the affirmative defense to murder in the second degree that the defendant “acted under the influence of extreme emotional disturbance” (Penal Law, § 125.25, subd 1, par [a]).

In order for a defendant to be entitled to a charge on “extreme emotional disturbance” there must be evidence sufficient for a jury to find, by a preponderance of the evidence, that the elements of this affirmative defense were established (cf. People v Watts, 57 NY2d 299). Here there was no evidence which suggested the presence of “extreme emotional disturbance” (cf. ALI Model Penal Code, § 210.3, Comment, p 61) and thus charging the affirmative defense would have invited the jury to impermissibly speculate as to the defendant’s state of mind at the time of the shooting. At most, the evidence at trial showed that the defendant acted out of anger or embarrassment, or both. While these emotions might sometimes serve as the “reasonable explanation” for the presence of “extreme emotional disturbance” they are not equivalent to the loss of self-control generally associated with that defense, and are not necessarily indicative of the “mental infirmity”, not rising to the level of insanity, discussed in People v Patterson (39 NY2d 288, 302, affd 432 US 197; see People v Casassa, 49 NY2d 668, 677-678).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    In the Matter of the Estate of Friederike Friedman, Also Known as Frieda Friedman, Deceased. Felice Gunz, Respondent; Gertrude Lieberman, Appellant.
    Decided December 27, 1984

      APPEARANCES OF COUNSEL

      Edward. Y. Crossmore for appellant.

      Laura M. Nath for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. The findings of fact at the Appellate Division more nearly comport with the weight of the evidence (104 AD2d 366).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Donald Snow, Respondent, v State of New York, Appellant.
    (Claim No. 60758.)
    Argued November 14, 1984;
    decided December 27, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff of counsel), for appellant.

      Robert L. Ellis, John B. Clarke and Roger Bohrer for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Moses M. Weinstein at the Appellate Division (98 AD2d 442).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of John Guerriera et al., Appellants, v Daniel W. Joy, as Commissioner, Rent Control Division, Office of Rent Housing Maintenance, Department of Housing Preservation and Development, Respondent.
    Decided December 27, 1984

      APPEARANCES OF COUNSEL

      Lynn M. Kelly and Morton B. Dicker for appellants.

      Carl Holmes and Victor J. Sama for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs to petitioners, and the matter should be remitted to respondent for redetermination of petitioners’ application after considering the consequences of chapter 234 of the Laws of 1984.

Under recent amendments to the Administrative Code of the City of New York (§ Y51-6.0, subd b, par [1]), the Emergency Housing Rent Control Law (L 1946, ch 274, § 5, subd 2, par [a], as amd by L1961, ch 337) and the Emergency Tenant Protection Act (L 1974, ch 576, § 4 [§ 10, subd a], as amd by L1983, ch 403), a landlord may no longer evict a tenant in good faith for his own necessary use or that of his immediate family where a member of the tenant’s household is 62 years of age or older, has been a tenant for 20 years or more, or has a medically demonstrable impairment resulting from anatomical, physiological or psychological conditions which is expected to be permanent and prevents the tenant from engaging in substantial gainful employment (L 1984, ch 234). Respondent concedes that the newly enacted amendments are applicable to this proceeding (see id., § 4) and that they prevent petitioners’ eviction inasmuch as they were in possession of their apartment on the statute’s effective date and they meet all three of the factors which now bar the eviction of rent-controlled tenants.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and matter remitted to Supreme Court, Kings County, with directions to remand to respondent for further proceedings in accordance with the memorandum herein.


text:
    The People of the State of New York, Respondent, v Walter Wilkerson, Appellant.
    Decided December 27, 1984

      APPEARANCES OF COUNSEL

      Andrew E. Abraham and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Seth L. Marvin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s conviction vacated, the motion to suppress granted and the indictment dismissed.

Defendant has been convicted of attempted criminal possession of a weapon in the third degree as the result of the discovery of a weapon in the waistband of his trousers.

While patrolling Aqueduct Park in The Bronx in plain clothes and in an unmarked car, Police Officers Vigliotti and Vallone saw two men standing about a hundred feet away pass an object between them. As the car approached, the men fled and the police gave chase. A short time later the police observed defendant a few blocks from the park wearing a coat similar to the distinctive style worn by one of the men seen in the park earlier. The police approached him from the rear and when they were a few feet away from him, one of the officers called out, “Police, don’t move!” Defendant turned to face them, reaching into the waistband of his trousers as he did so. The witnesses agreed that he reached to his waist immediately after hearing the officers’ command. The officers grabbed defendant’s hand, threw him against the police car and placed his hands on the roof. One of the officers then reached into defendant’s waistband and recovered a revolver.

The trial court, in findings affirmed by the Appellate Division, held the police conduct in stopping and detaining defendant unlawful. They found the taint of that unlawful conduct had been dissipated, however, by defendant’s action in reaching for the gun. It therefore denied suppression. We find no evidence in the record to support the finding of attenuation.

We have held that if the evidence is discovered as a direct consequence of the unlawful police conduct, then it must be suppressed. The test to be applied is whether defendant’s action in reaching into his waistband was spontaneous and precipitated by the illegality or whether it was a calculated act not provoked by the unlawful police activity and thus attenuated from it (see People v Boodle, 47 NY2d 398; People v Townes, 41 NY2d 97; People v Martinez, 37 NY2d 662). Thus, in People v Townes (supra), we held that there was attenuation because after the police had ordered defendant to stop, he moved away from the officers before suddenly turning, pointing a gun at them and pulling the trigger. In the present case there was no support in the record for the finding, implicit in the Appellate Division’s decision, that defendant’s actions were a calculated and considered response to the police intrusion. On the contrary, the only evidence in the record was that he reacted spontaneously to the police command by reaching immediately into his waistband (compare People v Martinez, supra).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

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


text:
    In the Matter of Meegan S., Appellant, v Donald T., Respondent.
    Decided December 27, 1984

      APPEARANCES OF COUNSEL

      Rolf Ondeck Ronning for appellant.

      Livingston L. Hatch for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition reinstated.

A paternity suit commenced by petitioner (the child’s mother) on February 2, 1983, some three years after the child’s birth, was dismissed as untimely under the two-year Statute of Limitations then in effect (Family Ct Act, § 517, subd [a]). Shortly thereafter, the Legislature enlarged the limitations period to five years (L 1983, ch 305, § 1), and petitioner commenced the same paternity proceeding a second time — well within the new limitations period. Respondent’s motion to dismiss the second petition, on the basis that dismissal of the first proceeding barred the second, was denied by Family Court but the Appellate Division reversed and dismissed the petition on grounds of res judicata.

While we agree, for the reasons stated by the Appellate Division, that the enlargement of the Statute of Limitations for paternity suits is to be applied retroactively, we hold that the second petition is not subject to dismissal on grounds of res judicata. Ordinarily, a dismissal based on the Statute of Limitations is considered to be “on the merits” (see Smith v Russell Sage Coll., 54 NY2d 185, 194), precluding relitigation of that issue in a subsequent action. The issue disposed of by the order of dismissal in the first proceeding, however, was only that petitioner’s claim was untimely under the Statute of Limitations then applicable to paternity suits, and it did not reach the issue of timeliness under the amended law, which would permit petitioner’s claim. “The earlier decision may be a conclusive adjudication of the petitioner’s rights, existing then; it cannot be an adjudication of rights thereafter conferred by law, or bar a new proceeding to vindicate new rights” (Matter of Mullane v McKenzie, 269 NY 369, 373; Matter of Wood v Fahey, 62 AD2d 86, 90). Accordingly, the Family Court order dismissing the first proceeding as time-barred, even though final and on the merits, does not preclude petitioner from prosecuting this proceeding pursuant to a right newly conferred on her by statute.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

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

       After the Appellate Division dismissal, petitioner, upon whom no notice of entry of the order dismissing the first petition had been served, herself served respondent with a notice of entry in that action, together with a notice of appeal to the Appellate Division. Our holding renders that appeal unnecessary.


text:
    Margie Brissette, Appellant, v James Dumpson et al., Respondents.
    Submitted December 3, 1984;
    decided December 27, 1984
   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 (Cohen and Karger, Powers of the New York Court of Appeals, § 36, p 144).


text:
    Elmwood-Utica Houses, Inc., Respondent-Appellant, v Buffalo Sewer Authority, Appellant-Respondent, and Diocese of Buffalo et al., Intervenors-Appellants.
    Decided December 27, 1984
   Appeals by defendant Buffalo Sewer Authority and interveners the Diocese of Buffalo, N.Y., Council of Churches, the Buffalo City Cemetery, Inc., and the County of Erie, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that those parties are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    Nonna Osipova, Appellant, v Zigmund Drozdowski, Individually and as President of Zand Realty, Inc., et al., Defendants, and Patricia Johnson et al., Respondents.
    Submitted December 10, 1984;
    decided December 27, 1984
   Motion for leave to appeal, etc., dismissed and, on the court’s own motion, appeal taken as of right dismissed, without costs, each upon the ground that the orders of the Appellate Division do not finally determine the action within the meaning of the Constitution.


text:
    Harold Lynn et al., Respondents, v Jensen Associates et al., Appellants, et al., Defendant.
    Submitted December 24, 1984;
    decided January 10, 1985
   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 § 46, at 202-203).

Chief Judge Wachtler taking no part.


text:
    In the Matter of Amanda Sands, Respondent, v Glenn Sands, Appellant.
    Submitted January 7, 1985;
    decided January 10, 1985
   Motion for leave to appeal, etc., dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (see, Cohen and Karger, Powers of the New York Court of Appeals § 43).


text:
    Jo Whigham, Appellant, v New York Telephone Company, Respondent.
    Submitted December 17, 1984;
    decided January 10, 1985
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie as of right from the Appellate Division order of unanimous affirmance (CPLR 5601). Motion for leave to appeal denied.

Judge Alexander taking no part.


text:
    YMCA of Greater New York, Respondent, v Rose Armenia, Appellant.
    Submitted December 10, 1984;
    decided January 10, 1985
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3; CPLR 5602).

Judge Alexander taking no part.


text:
    The People of the State of New York, Appellant, v Linda S. Forte, Respondent.
    Argued January 10, 1985;
    decided January 15, 1985
    APPEARANCES OF COUNSEL

      Kenneth Gribetz, District Attorney (John S. Edwards of counsel), for appellant.

      Linda S. Forte, respondent pro se, precluded.
   OPINION OF THE COURT

Order reversed and case remitted to the Appellate Term, 9th and 10th Judicial Districts, with directions to dismiss the appeal to that court (People v Brown, 40 NY2d 381, cert denied 433 US 913; see also, People v Key, 45 NY2d 111, 120).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander.


text:
    Adams Drug Co., Inc., Appellant, v Franklin Knobel et al., Respondents.
    Decided January 15, 1985

      APPEARANCES OF COUNSEL

      Earl Barrison for appellant.

      J. Stanley Shaw and Jesse I. Levine for respondents.
   OPINION OF THE COURT

Memorandum.

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

Under the fire clause of a lease providing that if more than 50% of the gross area of the building is destroyed by fire and reasonably cannot be restored to its preexisting condition within 120 days the landlord may, if he decides not to rebuild, terminate the lease, the landlord may not, though the other conditions be met, terminate the lease if he has in fact decided prior to termination to rebuild (Sabre Realty Mgt. Corp. v Vitale, 94 Misc 2d 1035; Bado Realty Co. v Oetjen, 5 Misc 2d 914). Because the Trial Judge erred in refusing to consider whether the landlord acted in good faith in giving notice of termination, there must be a new trial (Donohue v City of New York, 54 Misc 415; see, Matter of Noah’s Ark v Geib, 31 AD2d 866, affg 56 Misc 2d 800).

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

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


text:
    William H. Carney, Appellant, v Memorial Hospital and Nursing Home of Greene County et al., Respondents.
    Decided January 15, 1985

      APPEARANCES OF COUNSEL

      William F. O’Connor for appellant.

      James G. Eberz for Memorial Hospital and Nursing Home of Greene County, respondent.

      Paul W. Van Ryn for Hospital Corporation of America, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, by reversing so much as affirms the dismissal of the third cause of action in the complaint and, as so modified, affirmed. The certified question should be answered in the affirmative.

We agree with the Appellate Division, for the reasons stated in its memorandum and the memorandum of Special Term, that the second, fourth, fifth and seventh causes of action should be dismissed.

With respect to the sixth cause of action, the complaint is not susceptible to an interpretation that plaintiff is seeking to recover accrued pay for the period beyond 30 days during which he was discharged prior to the holding of a hearing pursuant to Civil Service Law § 75. While such a claim may be made in a civil action (Gerber v New York City Housing Auth., 42 NY2d 162,165), plaintiff has never suggested that he seeks such relief. Rather, the complaint and plaintiff’s arguments have been exclusively addressed to alleged procedural improprieties in the hearing that was held, and that claim must be raised in an article 78 proceeding (Van Buskirk v Odessa-Montour Cent. School Dist., 50 AD2d 969).

The third cause of action, which seeks damages for defamation based on publication of the statement that plaintiff was discharged “for cause,” should not, however, have been dismissed. Plaintiff has alleged that the statement is untrue and was intended to injure him in his profession by indicating that he is incompetent to perform his professional duties. As such, it states a valid cause of action in libel (November v Time, Inc., 13 NY2d 175). To the extent that defendants argue that plaintiff is wrong in alleging that the statement is false, their argument may not be considered on a motion to dismiss under CPLR 3211 (a) (7) for failure to state a claim (see, e.g., Morone v Morone, 50 NY2d 481, 484). And to the extent that defendants argue that the statement is not defamatory because it means only that the hospital administrators had a “reason,” which may or may not be valid, for dismissing plaintiff, their argument must be tested against the understanding of the average reader (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 382; November v Time, Inc., 13 NY2d 175, 178-179, supra).

Unlike the statements at issue in James v Gannett Co. (40 NY2d 415), the statement that plaintiff was terminated “for cause” is not clearly susceptible to only one interpretation. The rule is that if the words taken in their natural and ordinary meaning are susceptible to a defamatory connotation, then it is for the jury to decide how it would be understood by the average reader (id., at p 419; 2 NY PJI 708). It cannot be said as a matter of law that the average reader of the statement that plaintiff was discharged “for cause” would not interpret it as meaning that plaintiff had actually been derelict in his professional duties. Accordingly, plaintiff is entitled to a jury determination of the issue (see, PJI 3:25 and comment).

Chief Judge Wachtler and Judges Jasen, "Meyer, Simons, Kaye and Alexander concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the affirmative.


text:
    Ellen R. Samuels, Respondent, v John S. Samuels, III, Appellant, et al., Defendants.
    Argued January 8, 1985;
    decided January 15, 1985
   Appeal dismissed, without costs, 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 § 43, at 169-171).


text:
    William Ballan, Respondent, v T. Preston Waterman et al., Appellants. (And Another Action.)
    Submitted January 7, 1985;
    decided January 15, 1985
   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 § 40).


text:
    Janet Cohen, Appellant, v Richard Cohen, Respondent.
    Submitted November 26, 1984;
    decided January 15, 1985
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, 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 [a] [iii]; Patron v Patron, 40 NY2d 586).


text:
    In the Matter of Gene Crescenzi, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted December 31, 1984;
    decided January 15, 1985
   Motion for leave to appeal dismissed. Dismissal of the appeal taken as of right for lack of prosecution was a determination on the merits of all claims which could have been litigated had that appeal been timely argued or submitted (Bray v Cox, 38 NY2d 350). [See, 64 NY2d 648.]

Judge Alexander taking no part.


text:
    The People of the State of New York, Respondent, v Larry Hines, Appellant.
    Submitted December 3, 1984;
    decided January 15, 1985
   Motion to vacate the Court of Appeals order of dismissal dated November 9, 1984 denied. [See, 64 NY2d 648.]


text:
    Edmund F. Marino, as Chairman of the Town of Babylon Republican Committee, et al., Appellants, v William J. Canary, Jr., et al., as Commissioners of Election of the County of Suffolk, et al., Respondents.
    Decided January 15, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it is moot.


text:
    72nd Street Associates, Respondent, v David Pyle et al., Appellants.
    Decided January 15, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the court does not have jurisdiction to entertain the appeal, absent the direct involvement of a substantial constitutional question or a grant of leave to appeal by the Appellate Division (NY Const, art VI, § 3 [b] [7]).

Judge Alexander taking no part.


text:
    In the Matter of the Adoption of Amy SS. Robert TT et al., Appellants; Ronald SS, Respondent.
    Argued January 2, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Lance R. Miner for appellants.

      John J. Crimmins, III, and Thomas J. Donohue for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the motion to dispense with the respondent’s consent to the adoption of Amy SS should be granted, with costs. For the reasons stated in the dissenting opinion of Justice Levine at the Appellate Division, we conclude that the findings at Family Court more nearly comport with the evidence.

In addition, we would note that the evidence put forth by the petitioners of the respondent’s failure to visit with, communicate with, or provide for the support of his child is precisely the type of clear and convincing evidence contemplated by Domestic Relations Law § 111 (2) (a) to show an “intent to forego * * * parental * * * rights and obligations”. While respondent’s evidence may have shown a “flicker of interest” in Amy SS, “the [1975] amendments to section 111 of the Domestic Relations Law were designed to override the ‘flicker of interest’ test and thereby ease the burden on the party seeking to prove abandonment” (Matter of Corey L v Martin L, 45 NY2d 383, 389; see, Domestic Relations Law § 111 [6] [b]).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order reversed, with costs, and the motion to dispense with respondent’s consent to the adoption granted in a memorandum.


text:
    The People of the State of New York, Respondent, v Arthur Glover, Appellant.
    Argued January 4, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Sarah M. Burr and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Lee S. Gayer and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum of the Appellate Division (99 AD2d 1012).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander.


text:
    Nelly Rios, Individually and as Legal Representative of Juan V. Rios, et al., Appellants, v Altamont Farms, Inc., Respondent. (And Eight Other Actions.)
    Argued January 3, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Howard Schell Reilly and Thomas A. Harnett for appellants.

      S. Steven Karalekas and George Rusk, Jr., for respondent.

      Joseph A. Ruskay for New York Civil Liberties Union, amicus curiae.

   OPINION OF THE COURT

Order reversed, with costs, and the order and the judgment of Supreme Court reinstated for reasons stated in the dissenting opinion by Justice Howard A. Levine at the Appellate Division (100 AD2d 405, 411-418).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander.


text:
    Charlene Davis, Appellant, v St. Joseph’s Children’s Services, Respondent.
    Argued January 3, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      David J. Lansner for appellant.

      Roger P. McTiernan, Sr., and Kathryn Deborah Nealon for respondent.
   OPINION OF THE COURT

Memorandum.

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

As to denial of the cross motion to amend the complaint, we affirm for the reasons stated by the Appellate Division (99 AD2d 960; see, Video Corp. v Flatto Assoc., 58 NY2d 1026, 1028).

With respect to the tort causes of action, the argument that the three-year Statute of Limitations was tolled by the continuous treatment doctrine was not made below and, therefore, is not properly before us.

No more helpful to plaintiff are the tolling provisions of CPLR 203 for infancy and insanity. Infancy is defined by CPLR 105 (j) as not having “attained the age of eighteen years”, and nothing in Social Services Law § 371 (19) and § 383 (2) suggests a legislative intent to extend the infancy toll of CPLR 208 beyond 18 for a person in foster care. The more particularly is this so with respect to Social Services Law § 371, for its definitions pertain only to words “when used in this article or in any special act relating to children”. Nor is foster care, without more, “an over-all inability to function in society” sufficient to invoke the toll for “insanity” contained in CPLR 208 (McCarthy v Volkswagen of Am., 55 NY2d 543, 548; accord, Eisenbach v Metropolitan Transp. Auth., 62 NY2d 973).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Aetna Casualty & Surety Company, Appellant, v Virginia Cochrane, Respondent.
    Argued January 4, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Michael Majewski, Salvatore A. Mazzoni and Joseph D. Ahearn for appellant.

      Michele Turchin for respondent.
   OPINION OF THE COURT

Memorandum.

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

Chapter 435 of the Laws of 1981 amended various sections of the Insurance Law to provide that under an uninsured motorists’ endorsement no payment for noneconomic loss shall be made unless the claimant has incurred a “serious injury” as defined by Insurance Law § 671, and that there shall be no right of recovery against MVAIC for noneconomic loss unless the claimant has incurred such a “serious injury.” Not dealt with by that legislation is whether the serious injury determination is to be made in the arbitration which, under paragraph 7 of the New York Automobile Accident Indemnification Endorsement (see, 2 NY PJI997,1009), an uninsured motorist claimant is entitled to demand (Matter of Manhattan & Bronx Surface Tr. Operating Auth. v Evans, 95 AD2d 470, affg 117 Misc 2d 614) or is to be made by the courts.

Petitioner reasons that because in a no-fault action the defendant may be granted summary judgment or dismissal at the end of the plaintiff’s case when the evidentiary facts before the court are insufficient to establish “serious injury” (Jones v Sharpe, 63 NY2d 645; Bugge v Sweet, 61 NY2d 710; Thrall v City of Syracuse, 60 NY2d 950; Licari v Elliott, 57 NY2d 230), it follows that with respect to an uninsured motorist claimant’s demand for arbitration “serious injury” is a threshold issue to be determined by the court rather than the arbitrators. On a stay of arbitration, however, the only issues for the court are whether a valid agreement to arbitrate was made and complied with and whether the claim is barred by limitations (CPLR 7503 [b]). Here there is no question concerning limitations and no dispute that the agreement contained in the endorsement obligates claimant and insurer to arbitrate whether claimant “is legally entitled to recover damages” and “the amount of payment.”

An agreement to arbitrate legal entitlement to recover damages “is at least as encompassing as a broad arbitration clause”

(Matter of Nassau Ins. Co. v McMorris, 41 NY2d 701, 702 [equating the provision for arbitration of no-fault first-party benefits disputes under Insurance Law § 675, with a broad arbitration clause]). To require that the courts determine “serious injury” notwithstanding the broadly worded formulation of the endorsement is to involve them in the merits of the claim contrary to CPLR 7503 (b) (see, Matter of Silverman [Benmor Coats], 61 NY2d 299, 307) and runs counter to the Legislature’s purpose to reduce significantly the burden of automobile personal injury litigation upon the courts (Memorandum of State Executive Department, 1977 McKinney’s Session Laws of NY, at 2445, 2448; Governor’s Message of Approval of L 1977, ch 892, id., at 2534, 2535). That the legislative definition of “serious injury” is in some aspects imprecise does not require a contrary conclusion, for it is not to be presumed that arbitrators of uninsured motorists’ claims will not follow court decisions construing the phrase or that, in view of the constant flow of claims before them, they will be any less expert in interpretation of the phrase than are the courts.

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

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


text:
    Incorporated Village of Old Westbury, Respondent, v All-jay Farms, Inc., et al., Appellants.
    Argued January 7, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Daren A. Rathkopf for appellants.

      John M. Armentano and Dolores Fredrich for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, to declare that defendants have a valid nonconforming use accessory to their single-family dwelling for the maintenance of defendants’ own horses, even though they be racing horses, on the property and, as so modified, should be affirmed.

We agree with the Appellate Division, for the reasons stated in its memorandum (100 AD2d 574), that defendants do not have a legal nonconforming use for a commercial horse farm, and conclude that defendants have not sustained their heavy burden of demonstrating that the distinction made in the zoning ordinance between farms for the raising of cattle and crops and farms for horse breeding and training is unconstitutional.

On the other hand, the record shows that horses were maintained on the property as an accessory use prior to the enactment of the present ordinance. At the time the ordinance was enacted this was a preexisting use. That use cannot now be expanded to conform with the owner’s desire to maintain a commercial breeding farm; however, the maintaining of defendants’ horses, even though they be racing horses, on the property cannot be precluded.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

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


text:
    In the Matter of Howard Williams, Appellant, v City of New York et al., Respondents.
    Argued January 2, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Bruce R. Bekritsky for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

While off duty on July 25, 1980, petitioner, a New York City Correction Officer, was approached by two men who allegedly pointed a sawed-off shotgun at him and his female companion. In response, he drew and fired his revolver, wounding Paul Kinard, one of the assailants. Petitioner subsequently arrested Kinard and charged him with menacing and criminal possession of a weapon. The jury acquitted Kinard of these charges and he then commenced a civil action in Federal District Court seeking recovery of damages for the shooting incident against petitioner, the Correction Department and the city. Petitioner requested that the Corporation Counsel represent him in the Federal action, but he refused based on his determination that petitioner was not acting within the scope of his employment as a correction officer at the time and place of the incident.

Petitioner then commenced the instant article 78 proceeding seeking a judgment directing the city to furnish him with counsel in the Federal action or, alternatively, to pay his legal expenses. Special Term dismissed the petition, holding that the determination of the Corporation Counsel denying the requested counsel was not arbitrary or capricious and the Appellate Division affirmed.

The issue of whether petitioner’s acts were committed within the scope of his public employment and the discharge ¡of his duties raises factual questions (see, Riviello v Waldron, 47 NY2d 297, 303). Whether he was so acting and thus was entitled to representation by the Corporation Counsel and indemnification by the city are to be determined in the first instance by the Corporation Counsel (see, General Municipal Law § 50-k [2]) and his determination may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious. The Corporation Counsel’s determination here that petitioner was not acting within the scope of his employment and in the discharge of his duties cannot be characterized as unreasonable in light of Kinard’s acquittal of the criminal charges.

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

Order affirmed, with costs, in a memorandum.


text:
    Kevin Frazier, an Infant, by Jeanette Weston, His Mother and Natural Guardian, et al., Appellants, v State of New York, Respondent.
    Argued January 2, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Anthony Balsamo and Barry S. Bernstein for appellants.

      Robert Abrams, Attorney-General (Lew A. Millenbach, Robert Hermann and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Claimant brought this action to recover damages for personal injuries he sustained on October 10, 1979 when one Robert Warner, an off-duty New York State correction officer employed at Green Haven Correctional Facility, shot him in the foot. Claimant, a bystander, was walking on the grounds of a housing project in Manhattan at the time and was injured when Warner shot him while pursuing two other men after they had allegedly robbed him. Warner, a peace officer (see, CPL [former] 1.20 [33]), was authorized under applicable statutes to arrpst the robbers whether or not he was acting pursuant to his special duties if he had reasonable cause to believe that they had committed a felony (CPL 140.25 [3]). The Appellate Division acknowledged this authority but nevertheless held as a matter of law that the State could not be liable for the acts of a peace officer making an arrest while off duty (see, 100 AD2d 270). In light of the statutory and departmental authorization for peace officers to carry firearms (Penal Law [former] § 265.20 [a] [1] [a]), to make arrests when off duty (CPL 140.25 [3]) and to use force in doing so (Penal Law § 35.30), the claim presents questions of fact requiring a trial to determine whether Warner was negligent and, if so, whether the State is liable under traditional concepts of respondeat superior (see, Riviello v Waldron, 47 NY2d 297, 302, 303; Restatement [Second] of Agency § 229; and cf. Alifieris v American Airlines, 63 NY2d 370).

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Vernon Morris, Appellant.
    Argued January 4, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Dominic J. Sichenzia for appellant.

      John J. Santucci, District Attorney (Alan D. Zuckerbrod of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed (see, 100 AD2d 630).

We agree with the majority at the Appellate Division that viewing the totality of the circumstances defendant was not deprived of his constitutional right to effective assistance of counsel under the standards adopted by this court (see, People v Baldi, 54 NY2d 137; People v Aiken, 45 NY2d 394; People v Droz, 39 NY2d 457). We would but add that defense counsel’s alleged prejudicial concession in summation that the physical lineup which he had attended was fair, was made in the context of his argument to the jury that the identification made at the lineup was nonetheless unreliable because tainted by prior impermissibly suggestive photo identification proceedings.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed in a memorandum.


text:
    Curtis Katz, Appellant, v Napoleon B. Williams, Jr., Respondent.
    Argued January 2, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Charles Margett and Alexander Potruch for appellant.

      Napoleon B. Williams, Jr., respondent pro se.

   OPINION OF THE COURT

Memorandum.

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

This dispute regarding rights to a cooperative apartment poses two issues, both factual: first, whether a written notice of default was sent to defendant tenant in conformity with the requirements of the subscription agreement and second, whether defendant’s failure to tender the balance of the purchase price was excused by the sponsor’s neglect of its obligation to make substantial repairs. We conclude that the factual determinations made by the Appellate Division, in defendant’s favor, more closely comport with the weight of the evidence than those of the trial court. In this suit for a declaration that plaintiff was entitled to exclusive possession and for ejectment, we therefore affirm the Appellate Division order directing that judgment be entered declaring defendant entitled to purchase the shares of the subject apartment at the price set forth in the subscription agreement.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur. '

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


text:
    Princess Myers, an Infant, by Her Father and Natural Guardian, David Myers, et al., Respondents, v Fir Cab Corp. et al., Appellants.
    Argued January 3, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Robin Mary Heaney for appellants.

      Roy M. Warner for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and plaintiffs’ motion for partial summary judgment denied. We agree with Justice Bentley Kassal (100 AD2d, at p 33) that summary judgment is inappropriate where, as here, competing inferences may reasonably be drawn as to whether defendant’s conduct constituted negligence.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order reversed, with costs, and plaintiffs’ motion for partial summary judgment denied in a memorandum. Question certified answered in the negative.


text:
    Association of Contracting Plumbers of the City of New York, Inc., Appellant, v Irwin Fruchtman, as Commissioner of the New York City Department of Buildings, et al., Respondents.
    Argued January 4, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Joseph S. Kaming and Elizabeth C. Kaming for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (June A. Witterschein, Leonard Koerner and Stephen J. McGrath of counsel), for respondents.

      Richard S. Brook for Enterprise Association of Steam, Hot Water, Hydraulic, Sprinkler, Pneumatic Tube, Ice Machine and General Pipe Fitters of N. Y. and vicinity, Local Union 638 of United Association of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of U. S. and Canada, AFL-CIO, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Petitioner, an association of licensed master plumbers, by this article 78 proceeding challenges a 1982 directive issued by respondent Commissioner (a) providing that the installation of combination fire standpipes may be performed by either licensed master plumbers or mechanical, sprinkler or steam-fitter contractors, and (b) superseding a 1975 directive which required that such installation be made under the supervision of licensed master plumbers. Petitioner charges that issuance of the 1982 directive is arbitrary and contrary to law, constituting an imminent public danger and a threat to health and safety, as well as a Building Code violation and a failure to comply with rule-making procedures and environmental quality review procedures. Special Term dismissed the petition, finding no standing and no cause of action. The Appellate Division affirmed, two Justices concurring on the basis that petitioner has standing both as a trade association on behalf of its members and as representative of the public, but agreeing that no cause of action was stated.

We assume, without deciding, that petitioner has standing to bring this proceeding and, on the merits, agree with the unanimous view of both lower courts that the challenged directive was neither arbitrary nor contrary to law, resulting in dismissal of the petition. The allegation of “imminent danger” that respondents have by improper action jeopardized public health and safety is, as the courts below found, without any demonstrated basis; the directive was issued after review of health and other issues, and a study conducted by an engineering consultant. The purported requirement of the Building Code that installation of combination fire standpipes be only by master plumbers is not imposed by article 17 (Administrative Code of City of New York § C26-1700.1 et seq.), specifically regulating “Fire Alarm, Detection, and Extinguishing Equipment.” Moreover, the 1982 directive itself contemplates that while the combination standpipe may be installed by contractors, any connections with the potable water supply system will be made by master plumbers and will comply with Reference Standard RS-16 (see, Administrative Code, art 16, “Plumbing and Gas Piping”, § C26-1600.1 et seq.). Petitioner further urges that respondents have failed to comply with necessary rule-making procedures under New York City Charter § 1105, but even assuming that a rule or regulation of the Building Department were in issue, the failure to present this specific issue to the court below precludes consideration by us as a ground for reversal (Cohen and Karger, Powers of the New York Court of Appeals § 161 [rev ed]). Finally, petitioner demonstrates no basis for its assertion that the environmental laws are applicable to this administrative directive. Indeed, the State En vironmental Quality Review Act expressly excepts “inspections and licensing activities relating to the qualifications of individuals or businesses to engage in their business or profession” (6 NYCRR 617.13 [b] [11]).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye amd Alexander concur.

Order affirmed, with costs, in a memorandum. Question certified not answered as unnecessary.

       Both directives were issued by Commissioners of the New York City Department of Buildings and spelled out procedures for the installation of fire protection systems under the Administrative Code of the City of New York. Respondent Commissioner’s directive reads in relevant part:
      “effective immediately: The following work for the use of a combination standpipe riser serving the sprinkler system and hose bib (and rack) connections for a fire protection system shall only be installed by a Licensed Master Plumber:
      “1. Connections to a public water main or any water supply up to and including the check valve, back-flow preventor, or any other suitable protective device required by the Code or specified by the (Architect or) Engineer.
      “2. Installation of the fill line serving a combination domestic and fire protection reserve tank, including the tank fill pump.
      “3. The connection from the combination fire protection and domestic reserve tank to the combination fire protection line up to and including the control and check valves.
      “4. Any connections with the potable water supply system or to any part of the water or sanitary plumbing system from the check valve to the fixture or plumbing line.
      “exception: Either a Licensed Master Plumber or a Mechanical, Sprinkler or Steam-fitter Contractor may install the combination standpipe riser, and the sprinkler piping itself provided that the appropriate safeguards of Reference Standard RS-16 and any additional requirements specified by the (Architect or) Engineer have been made for the potable water supply system.”


text:
    Anthony M. Donaloio et al., Respondents, v State of New York, Appellant.
    (Claim No. 61773.)
    '.Argued January 7, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Dennis Hurley and Peter H. Schiff of counsel), for appellant.

      Joseph C. Shapiro and William K. Atchinson for respondent.
   OPINION OF THE COURT

Memorandum.

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

At issue in this case is the amount owing to claimants for the appropriation on October 12,1977 of a sewage flow easement on property adjacent to their restaurant. Both lower courts agreed on the value of the property before the taking, but disagreed on the measurement of damages. The trial court found the highest and best use of the property unchanged by the appropriation, accepting the State’s evidence and representations at trial during 1980 that a cure involving a system of piping the sewage off-premises was feasible. The trial court awarded claimants the cost to cure, as well as other direct and consequential damages, whereas the Appellate Division, in arriving at the fair market value of claimants’ property after the taking, rejected the proffered cure because it required governmental permits and the use of land outside the subject property.

The only potentially feasible alternative method demonstrated at trial for claimants to dispose of the sewage generated by their restaurant required governmental approval or the use of certain State facilities not previously committed, to this purpose. Representations at trial, years after the appropriation, that the necessary authorizations would be forthcoming upon application by claimants do not satisfy the requirement — if the proposed cure is to effect a mitigation of damages — for timely, unequivocal assurance by the State, the condemnor, that this alternative would be implemented (see, Wolfe v State of New York, 22 NY2d 292; see also, Pollak v State of New York, 41 NY2d 909). Accordingly, we adopt as more closely comporting with the weight of the evidence both the Appellate Division’s findings that the highest and best use of the property after the taking was for apartments and a possible craft shop, and its calculation of damages.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed, with costs, in a memorandum.


text:
    Patrick O’Leary, Appellant, v New York City Transit Authority, Respondent.
    Argued January 4, 1985;
    decided February 5, 1985

      APPEARANCES OF COUNSEL

      Leon Vogel and Samuel Stein for appellant.

      Diane Ciccone, Lawrence Heisler, William E. Rosa and Richard K. Bernard for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative for reasons stated in the memorandum at the Appellate Division (97 AD2d 789).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander.


text:
    Anthony Audino et al., Appellants, v Lincoln First Bank of Rochester, as Executor of the Estate of James H. Hamill, Deceased, Respondent. (Action No. 1.) Katherine H. Giordano et al., Respondents, v Louis P. Attoma et al., Appellants. (Action No. 2.)
    Submitted January 14, 1985;
    decided February 5, 1985
   Motion to dismiss appeal in action No. 2 denied.


text:
    The People of the State of New York ex rel. Bernard Deveaux, Appellant, v Charles Scully, as Superintendent of Green Haven Correctional Facility, Respondent.
    Submitted January 7, 1985;
    decided February 5, 1985
   Motion for leave to appeal from Appellate Division order dated August 27, 1984 denied.

On the court’s own motion, appeal taken as of right from Appellate Division order dated December 11, 1984 dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Irving Mandell, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted January 22, 1985;
    decided February 5, 1985
   Motion for leave to appeal dismissed as untimely (see, Howe v Howe, 304 NY 737; Eagle v City of New York, 298 NY 792).


text:
    Marsha Spellman, Appellant, v State Division of Human Rights et al., Respondents.
    Submitted January 31, 1985;
    decided February 5, 1985
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements to respondent Columbia University, upon the ground that movant has failed to file a copy of the record or appendix of the court below or a brief to the Court of Appeals before the statutory return date of the motion (22 NYCRR 500.11).

Judge Alexander taking no part.


text:
    In the Matter of the Civil Service Employees Association, Inc., Respondent, v Ontario County Health Facility, Appellant. (And Another Appeal.)
    Submitted November 5, 1984;
    decided February 7, 1985
    APPEARANCES OF COUNSEL

      John W. Park, County Attorney, for appellant.

      James T. Hancock for respondent.
   OPINION OF THE COURT

Memorandum.

The motion for leave to appeal should be dismissed upon the ground that the orders sought to be appealed from do not finally determine an action or proceeding within the meaning of the Constitution. The orders which granted motions for subpoenas duces tecum in connection with arbitrations are orders which merely administer the course of the arbitrations and such orders are not final (see, e.g., Matter of Howell v New York City Human Resources Admin., 97 AD2d 352, appeal dismissed 61 NY2d 758 [order directing compliance with subpoenas duces tecum to produce records before an arbitrator]; Matter of Camacho v Iafrate, 66 AD2d 779, lv dismissed 46 NY2d 897 [order granting discovery of records for use at arbitration]).

Motion for leave to appeal dismissed in a memorandum.


text:
    The People of the State of New York, Respondent, v William F. Treuber, Appellant.
    Argued January 8, 1985;
    decided February 7, 1985
    APPEARANCES OF COUNSEL

      E. Thomas Boyle for appellant.

      Robert M. Morgenthau, District Attorney (Anne Beane Rudman and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends on this appeal that the trial court should have dismissed the charges against him due to a variance between the People’s proof at trial and the indictment. Specifically, he argues that the indictment charged him with conspiring with Fellouris, Boggs, and Jones, to possess the bearer bonds stolen by Fellouris and Boggs from the Vakils’ brokerage accounts while the evidence at trial showed only that he, Boggs and Jones conspired against Fellouris to keep all of the funds for themselves.

The court’s charge presented the case to the jury as set forth in the indictment and defendant’s contention is thus, in effect, that there was insufficient evidence to convict him of the conspiracy for which he was indicted. While the indictment does name Fellouris as one of defendant’s coconspirators, it does not allege that defendant conspired to steal the bonds. Rather, the defendant was accused in the indictment of being part of a conspiracy to knowingly possess property stolen from the Vakils’ brokerage accounts with the intent to benefit persons other than the rightful owners of the property or to impede the recovery of the property by the owners. There was abundant evidence that defendant agreed with others to possess the bonds with the knowledge that the bonds were stolen and with the intent to benefit himself and other conspirators.

The fact that the evidence seemed to show that defendant conspired only with Boggs and Jones, and not also with Fellouris, did not work as an impermissible amendment of the indictment. Conviction for a conspiracy offense requires proof only that the defendant entered into a criminal agreement with at least one other person and thus the fact that the indictment alleged that the defendant conspired with three other persons did not bind the People to proving that an agreement existed amongst all four persons (see, People v Charles, 61 NY2d 321, 327). Significantly, it is clear that the indictment, which specified numerous overt acts alleged to have been taken by defendant in furtherance of the conspiracy, put defendant on notice that he would be tried for agreeing to participate in a plan to criminally possess the bonds which had been stolen from the Vakils.

Defendant also contends that the trial court committed reversible error in refusing to charge the jury with respect to defendant’s alibi defense for one of the overt acts specified in the indictment — a meeting at the Warwick Hotel testified to by Fellouris. There were numerous other acts tending to show that the defendant nsu joined the conspiracy. Under these circumstances it was not error for the court to refuse to charge the jury that the People had the burden of disproving the alibi beyond a reasonable doubt (see, Penal Law § 25.00 [1]; People v Watts, 57 NY2d 299).

The defendant also objects to the court’s charge on the ground that it did not properly convey the rule of law established by this court in People v McGee (49 NY2d 48), which held that a defendant cannot be convicted for substantive crimes committed by his coconspirators solely by virtue of his membership in the conspiracy. While the court did not make a verbatim restatement of this holding, its charge to the jury did explain that the conspiracy and the criminal possession offenses were distinct from each other, and that the defendant could only be convicted of the criminal possession offense if the People had established all the elements of that offense beyond a reasonable doubt. Notably absent from the charge was any suggestion that the “Pinkerton” rule (see, Pinkerton v United States, 328 US 640) rejected in McGee should be followed.

Finally, we note that there was sufficient evidence to support the court’s finding that venue for the prosecution was properly laid in New York County.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed in a memorandum.


text:
    Victoria M. Langdon, Appellant, v Robert E. Mohr, Respondent.
    Argued January 9, 1985;
    decided February 7, 1985

      APPEARANCES OF COUNSEL

      Myrna Felder and Raoul Lionel Felder for appellant.

      Charles G. Mills and Philip C. Kilian for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (99 AD2d 957).

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