text:
    In the Matter of Grand Jury Subpoenas Dated June 26, 1986. Anonymous et al., Appellants; Edward J. Kuriansky, as Deputy Attorney-General of the State of New York, Office of the Deputy Attorney-General for Medicaid Fraud Control, Respondent.
    Decided July 2, 1987

      APPEARANCES OF COUNSEL

      Peter J. Driscoll and James C. Sherwood for appellants.

      Edward J. Kuriansky, Deputy Attorney-General (Robert Dublirer of counsel), respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Petitioners, two New Jersey corporations doing business in New York and the president of both corporations, have moved to quash subpoenas requiring them to produce records kept in New Jersey for inspection by a New York County Grand Jury investigating complaints of Medicaid fraud. The sole issue on appeal is whether the issuance of compulsory process pursuant to CPL 640.10, the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, is the exclusive means by which an out-of-State corporation doing business in New York may be compelled to produce out-of-State documents at a criminal proceeding within New York. We hold that it is not.

Pursuant to CPL 610.10, a person “within the state” may be required to attend a criminal proceeding and to produce specified physical evidence by the issuance and service upon him of a subpoena. Because the corporate petitioners at whom respondent’s subpoenas were directed were doing business in New York within the meaning of CPLR 301, they were within the State for jurisdictional purposes (see, Laufer v Ostrow, 55 NY2d 305, 309-310; Tauza v Susquehanna Coal Co., 220 NY 259, 267-268) and, therefore, subject to subpoenas served pursuant to CPL 610.40. Personal service upon the principal of the corporate petitioners constituted satisfactory service (see, CPLR 2303, 311). Thus, the lower courts correctly required petitioners to produce all documents within their control, regardless of location (see, Matter of Standard Fruit & S. S. Co. v Waterfront Commn., 43 NY2d 11, 15-16). To the extent that Matter of Brennick v Hynes (68 AD2d 980, lv denied 47 NY2d 706) reaches a contrary result, it is not to be followed.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Jeffrey R. Korman and Lee L. Holzman, Appellants, v Alice Sachs et al., Constituting the Board of Elections of the City of New York, and Lorraine Backal, Respondents. (And Related Proceedings.) Lorraine Backal, Respondent.
    Submitted August 26, 1987;
    decided August 26, 1987
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. On the court’s own motion, leave to appeal granted to Jeffrey R. Korman and Lee L. Holzman. Oral motions for intervention denied. Motion by Lorraine Backal for leave to appeal denied.


text:
    In the Matter of Hansel L. McGee, Respondent, v Jeffrey R. Korman, Appellant, and Board of Elections of the City of New York, Respondent. (And a Related Proceeding.) Jeffrey R. Korman and Lee L. Holzman, Appellants.
    Submitted August 26, 1987;
    decided August 26, 1987
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. On the court’s own motion, leave to appeal granted to Jeffrey R. Korman and Lee L. Holzman. Oral motions for intervention denied.


text:
    In the Matter of John Latora et al., Appellants, v Supreme Court of Kings County, Respondent.
    Submitted August 17, 1987;
    decided August 27, 1987
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous judgment of the Appellate Division absent the direct involvement of a substantial constitutional question; motion for leave to appeal denied; motion for stay, etc., dismissed as academic.


text:
    In the Matter of New York City Transit Authority, Respondent, v Patrolmen’s Benevolent Association of the New York City Transit Police Department, Appellant.
    Decided September 3, 1987
    APPEARANCES OF COUNSEL

      William A. Gogel for appellant.

      Albert C. Cosenza and Carla Lowenheim for respondent.
   OPINION OF THE COURT

Upon review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that no appeal lies pursuant to leave of the Appellate Division from the order of that court affirming the granting of a new hearing because an appeal as of right lies pursuant to CPLR 5601 (c) (CPLR 5602 [b] [1]; Cohen and Karger, Powers of the New York Court of Appeals § 65, at 289-291; see also, CPLR 5602 [a] [1] [ii]; 5601 [d], as amended by L 1986, ch 316).


text:
    George W. Purdy, Respondent, v Public Administrator of the County of Westchester, as Administrator of the Estate of Emily L. Shaw, Deceased, Appellant, et al., Defendants.
    Submitted June 8, 29, 1987;
    decided September 3, 1987
   Cross motion by Public Administrator of the County of Westchester for leave to appeal, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the grant of a new trial against cross movant, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; cross motion otherwise granted.

Motion by George W. Purdy for leave to appeal granted.


text:
    In the Matter of BOR Realty Corp., Appellant, v New York City Loft Board et al., Respondents.
    Decided September 8, 1987

      APPEARANCES OF COUNSEL

      Stanley M. Kaufman for appellant.

      Peter L. Zimroth, Corporation Counsel (Karen Hutson of counsel), for New York City Loft Board, respondent.

      Donna De Cesare and others, respondents, precluded.
   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), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (129 AD2d 496) and upon the further ground that the determination of respondent New York City Loft Board is supported by substantial evidence.

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


text:
    The People of the State of New York, Respondent, v Robert Brensic, Appellant.
    Submitted June 29, 1987;
    decided September 8, 1987
   Motion to amend remittitur granted, return of remittitur requested and when returned it will be amended to read as follows: Order reversed, conviction vacated, first count of Suffolk County indictment No. 2678-79 charging defendant with intentional murder dismissed (see, People v Nieves, 67 NY2d 125, 136; People v Mayo, 48 NY2d 245, 253), and a new trial ordered on the second count of the indictment charging depraved mind murder. [See, 70 NY2d 9.] Judge Kaye taking no part.


text:
    In the Matter of Brooklyn Union Gas Company, Respondent, v State Board of Equalization and Assessment, Respondent, and City of New York, Intervenor-Appellant.
    Submitted June 22, 1987;
    decided September 8, 1987
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution, and it is not a nonfinal order of the type which is within the meaning of CPLR 5602 (a) (2) or within this court’s practice for enforcement of its remittitur.


text:
    In the Matter of Jean Paesch, Respondent, v Richard Paesch, Appellant.
    Submitted June 29, 1987;
    decided September 8, 1987
   Motion for leave to appeal, etc., in this child custody proceeding dismissed upon the ground that, under the circumstances, the proceeding and motion have abated because of the death of the movant father.


text:
    In the Matter of Brian A. Sheridan, an Attorney and Counselor-at-law, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted June 29, 1987;
    decided September 8, 1987
   Motion to vacate April 30, 1987 order dismissing the appeal as of right and to reargue the dismissal motion denied. Motion for leave to appeal denied. [See, 69 NY2d 946.]


text:
    In the Matter of Michael W. Sheila W., Appellant; Commissioner of Social Services of the City of New York, Respondent. (Proceeding No. 1.) In the Matter of Tennille W. Sheila W., Appellant; Commissioner of Social Services of the City of New York, Respondent. (Proceeding No. 2.)
    Submitted July 13, 1987;
    decided September 8, 1987
   Motion to vacate June 11, 1987 order dismissing appeal denied. [See, 69 NY2d 1036.]


text:
    Carole Wulster et al., Appellants, v Alan Rubinstein et al., Respondents, et al., Defendant.
    Submitted August 3, 1987;
    decided September 8, 1987
   Motion to vacate order dismissing motion for leave to appeal for untimeliness granted; the parties concede that this court was furnished with an erroneous date for service of the Appellate Division order with notice of entry. Motion for leave to appeal denied. [See, 70 NY2d 694.]


text:
    In the Matter of Nicholas R. Santoro et al., Respondents, v Dolores (Dolly) K. Kujawa et al., Appellants, and Marguerite L. Toole et al., Constituting the Monroe County Board of Elections, Respondents.
    Submitted September 4, 1987;
    decided September 9, 1987
   Motion insofar as it seeks leave to appeal from the Appellate Division order affirming invalidation of appellants’ designating petitions and voter registration denied. Motion insofar as it seeks leave to appeal from the order of the Appellate Division reversing an order of Supreme Court which amended its judgment and denying the motion to amend dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Kenneth Campbell, Appellant.
    Decided September 10, 1987

      APPEARANCES OF COUNSEL

      Philip L. Weinstein and Ann Cypher for appellant.

      Elizabeth Holtzman, District Attorney (Robert E. Lesser of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and a new trial ordered. This jury instruction concerning the alibi defense "was not satisfactory without the additional requested warning that the People had the entire burden of disproving the alibi beyond a reasonable doubt” (People v Victor, 62 NY2d 374, 378).

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


text:
    In the Matter of Morton Buildings, Inc., Respondent, v Roderick G. W. Chu et al., Constituting the State Tax Commission, Appellants.
    Decided September 10, 1987

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Francis V. Dow of counsel), for appellants.

      Matthew L. Eilenberg and Abraham M. Stanger 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), judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (126 AD2d 828).

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


text:
    In the Matter of the Accounting of Jack L. Alpert, as Executor of William I. Alpert, Deceased, et al., Appellants; Ruth Alpert et al., Respondents.
    Submitted August 10, 1987;
    decided September 10, 1987
   Motion by Jack L. Alpert for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution. Motions by Charles Alpert, et al., for leave to appeal dismissed upon the ground that the movants are not parties aggrieved by the order sought to be appealed from (CPLR 5511).


text:
    The People of the State of New York, Appellant, v Junius Chambers, Respondent.
    Submitted August 10, 1987;
    decided September 10, 1987
   Motion to vacate July 15, 1987 order of dismissal denied. [See, 70 NY2d 694.1


text:
    In the Matter of Franklin C. D’Ornellas, Jr., Respondent, v Juan U. Ortiz, as Personnel Director of the Department of Personnel of the City of New York, et al., Appellants, et al., Respondents.
    Submitted August 10, 1987;
    decided September 10, 1987
   Motion to vacate July 15, 1987 order of dismissal denied. [See, 70 NY2d 694.]


text:
    Angelina Sinicropi, Appellant, v Edward G. McCabe, as County Attorney of Nassau County, et al., Respondents.
    Submitted June 15, 1987;
    decided September 10, 1987
   Motion for leave to appeal from the order of the Appellate Division dated October 20, 1986 denied. Motion for leave to appeal from the order of the Appellate Division dated December 22, 1986 dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Arbitration between Jan T. Vilcek, Respondent, and Enzo Biochem, Inc., Appellant.
    Submitted June 8, July 20, 1987;
    decided September 10, 1987
   Motion for leave to appeal from the Supreme Court judgment entered June 22, 1987 to review the Appellate Division order of December 4, 1986 dismissed upon the ground that an appeal does not lie to review an order of the Appellate Division made in a prior arbitration proceeding.


text:
    Sadie Nikolaus, Appellant, v State of New York, Respondent.
    Decided September 10, 1987
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    The People of the State of New York, Respondent, v Anthony Anderson, Appellant.
    Decided September 15, 1987
    APPEARANCES OF COUNSEL

      Carl J. Silverstein and John Ferrara for appellant.

      Stephen F. Lungen, District Attorney (Frank J. Labula of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

During the People’s presentation of evidence, one of the jurors advised the court that, because of his concerns about the racial composition of the jury, his judgment might be "colored, distorted”. At a hearing conducted outside the presence of the other jurors, the juror was asked what he meant by that statement. He responded: "Well, I can state that. I may bend over backwards one way or another in order to be fair. I don’t think I could be unfair but in order to be fair * * * I would say, well, gee, there’s something wrong here and I have to give this individual — it could be the main witness, the benefit of the doubt. I mean I haven’t made a judgment as to what the”. The court interrupted the juror’s response as follows: "Counselor, I think maybe the risk in view of what he’s told us, the risk of this juror continuing is one that we shouldn’t really take in this case.” No further inquiry was made of the juror. After legal argument on the issue, the court discharged the juror, finding that "Juror Number 7 has indicated to the court that he has some feelings that might in some way influence his ability to be a fair and impartial juror in this case”.

Before a sworn juror may be discharged as "grossly unqualified” (CPL 270.35), a trial court must — based on tactful and probing inquiry — be convinced that the juror’s knowledge will prevent that person from rendering an impartial verdict. The court may not speculate as to the possible partiality of a sworn juror based on equivocal responses (People v Buford, 69 NY2d 290, 299). Here, the discharge was supported neither by the court’s probing inquiry nor by the juror’s unequivocal responses indicating gross disqualification to serve impartially.

We decline the People’s invitation to apply a harmless error analysis based on the proof of defendant’s guilt, or based on the fact that defendant participated in selecting the alternate who replaced the discharged juror. A defendant has a constitutional right to a trial by a " 'particular jury chosen according to law, in whose selection [the defendant] has had a voice’ ” (People v Buford, supra, at 297-298 [quoting People v Ivery, 96 AD2d 712; People v West, 92 AD2d 620, 622 (Mahoney, P. J., dissenting), revd on dissenting opn below 62 NY2d 708]; see, NY Const, art I, § 2). To deny this defendant a chosen jury on an improper basis, as in this case, is a deprivation of the constitutional right to a jury trial (see, People v West, supra, 92 AD2d, at 622), and harmless error analysis is therefore unavailable.

Because a new trial is required, we further note that the court erred in failing to make a record of its Sandoval ruling, so that there might be appellate review of this determination (see, People v Culver, 102 AD2d 924).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa 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 Paul Lipari, Respondent, v Thaddeus E. Owens, as Justice of the Supreme Court, Kings County, Respondent, and Elizabeth Holtzman, as Kings County District Attorney, Appellant.
    Decided September 15, 1987

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Barbara D. Underwood and Robin Bernstein of counsel), appellant pro se.

      Anthony V. Lombardino for Paul Lipari, respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division granting the petition prohibiting the removal of counsel and directing the postponement of defendant Lipari’s trial should be reversed, without costs, and the petition should be dismissed.

Lipari was arraigned on charges of attempted murder, second degree, and assault, first degree, on September 19, 1985. In the ensuing 22 months, his case was adjourned 19 times, with all but one adjournment due to defense counsel unavailability. On eight scheduled court dates, Lipari’s counsel failed to appear and, on a number of other occasions, he represented he would be available for trial on subsequent dates. The matter has twice been put down for trial with the second of these dates characterized as the "final trial date”. When counsel failed to appear on the final trial date, after he said he would be available and after the trial court had warned Lipari to appear ready for trial on that date, the Trial Justice ordered that counsel be relieved, that counsel refund the unearned portion of the retainer, and that Lipari acquire new counsel. Lipari brought a petition in the Appellate Division which issued a writ prohibiting the Trial Justice and the District Attorney from interfering in the representation by retained counsel of defendant’s choice.

The extraordinary remedy of prohibition "is available both to restrain an unwarranted assumption of jurisdiction and to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction” (LaRocca v Lane, 37 NY2d 575, 578-579). "[E]ven if there has been an excess of jurisdiction or power, the extraordinary remedy will not lie if there is available an adequate remedy at law, of which appeal is but one” (Matter of State of New York v King, 36 NY2d 59, 62).

Determinations regarding questions of the timely and proper trial of a case are squarely within the power and jurisdiction of the trial court (People v Anthony M., 63 NY2d 270). Furthermore, even if alleged error of constitutional dimension may be involved, prohibition does not lie because the removal of counsel would be reviewable upon direct appeal.

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

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


text:
    In the Matter of Cole Coleman, Appellant, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Submitted July 6, 1987;
    decided September 15, 1987
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted. Motion for leave to proceed as a poor person granted.


text:
    The People of the State of New York, Respondent, v Eulogio Cruz, Appellant.
    Argued September 9, 1987;
    decided September 17, 1987

      APPEARANCES OF COUNSEL

      Robert S. Dean and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Peter D. Coddington and Allen M. Hecht of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Upon reargument, following remand from the Supreme Court of the United States (see, Cruz v New York, 481 US —, 107 S Ct 1714), the order of the Appellate Division should be reversed and a new trial ordered.

The Supreme Court having determined that the videotaped statement of codefendant Benjamin Cruz was improperly received in his joint trial with defendant Eulogio Cruz, remitted the matter to this court for further proceedings. We now determine that reception of the evidence was not harmless.

Insofar as the People now contend that the statement was admissible as a declaration against penal interest by Benjamin Cruz, probative of defendant’s guilt, it is sufficient to note that the statement was not offered at trial for that purpose and defendant has had no opportunity to challenge its reliability (see, People v Brensic, 70 NY2d 9).

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

Upon reargument, following remand from the Supreme Court of the United States, order reversed and a new trial ordered in a memorandum.


text:
    Turnpike Woods, Inc., Appellant, v Town of Stony Point et al., Respondents.
    Argued September 1, 1987;
    decided September 17, 1987

      APPEARANCES OF COUNSEL

      Robert H. Freilich and Joel L. Scheinert for appellant.

      James A. Fitzgerald and Jeanne M. Hurley for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated insofar as it directed the Town Clerk to issue to petitioner a certificate of approval pursuant to Town Law § 276 (4).

While towns may impose certain restrictions and conditions on the use and development of land pursuant to the appropriate legislative grant of authority (see, Town Law § 261; Municipal Home Rule Law § 10 [1] [ii] [a] [14]; Statute of Local Governments § 10 [6]), they may not exercise this grant of power in a manner inconsistent with State law — unless the power to amend or supersede State law has been expressly conferred (see, Municipal Home Rule Law § 10 [1] [ii]; § 10 [1] [ii] [d] [3]; Matter of Sherman v Frazier, 84 AD2d 401, 405-410; cf, Rozler v Franger, 46 NY2d 760, affg on opn below 61 AD2d 46 [power of village to amend or supersede Village Law pursuant to Municipal Home Rule Law § 10 (1) (ii) (e) (3)]).

Respondent argues that Local Law No. 7 is a valid amendment of Town Law § 276 (4) pursuant to the express authority to amend or supersede general provisions of the Town Law extended in Municipal Home Rule Law § 10 (1) (ii) (d) (3). Although the Appellate Division, relying on Matter of Dune Assocs. v Anderson (119 AD2d 574) found respondent’s local law a valid interim zoning measure, we need not reach this broader issue of whether the power granted in Municipal Home Rule Law § 10 (1) (ii) (d) (3) may operate to supersede the command of Town Law § 276 (4) that planning boards act on applications for final plat approval within 45 days of their submission, because Local Law No. 7 is ineffective to supersede Town Law § 276 (4) in any event in that it fails to comply with Municipal Home Rule Law § 22 (see, Matter of Sherman v Frazier, 84 AD2d 401, 405-406, supra; Bill Jacket to L 1976, ch 365, Mem of Department of State [amendment affects power to restructure town government and administration]).

While section 22 (1) does not, by its terms, mandate technical adherence to any one of the specifically described procedures for amending or superseding a State law, we have required substantial adherence to the statutory methods to evidence a legislative intent to amend or supersede those provisions of a State law sought to be amended or superseded (Bareham v City of Rochester, 246 NY 140, 150 [interpreting predecessor provision City Home Rule Law § 12; repealed by Municipal Home Rule Law § 58, eff Jan. 1, 1964]; see also, County of Rensselaer v City of Troy, 102 AD2d 976, 977; Matter of La Cagnina v City of Schenectady; 70 AD2d 761, 762; Municipal Home Rule Law §22 [2]). The purpose of section 22 is to compel definiteness and explicitness, to avoid the confusion that would result if one could not discern whether the local legislature intended to supersede an entire State statute, or only part of one — and, if only a part, which part (Bareham v City of Rochester, 246 NY 140, 150, supra).

Local Law No. 7 does not expressly amend or supersede Town Law § 276 (4), nor does it contain any declaration of intent to do so. Nowhere does it define by reference to chapter and section number, or by reference to title, or by replication of actual text, the particular provision(s) of the Town Law to which it purports to apply. Notably, while section VII of Local Law No. 7 — entitled "Repeal of Other Laws” — declares the supersession of all prior ordinances in conflict with the moratorium, any reference to the Town Law, or more specifically to Town Law § 276 (4), is conspicuously absent. Indeed, one reading the entire text of Local Law No. 7 is unable to perceive with reasonable certainty which provisions of the Town Law, if any, it seeks to supersede (see, Bareham v City of Rochester, 246 NY 140, 150, supra; Matter of McCabe v Voorhis, 243 NY 401, 415-416). We decline to supply the necessary legislative indications by implication (cf., McKinney’s Cons Laws of NY, Book 1, Statutes § 391 [implied repeals]; Alweis v Evans, 69 NY2d 199, 204 [repeal of statute by implication not favored and will be decreed only where intent is clear and two statutes cannot be harmonized]; People v Mann, 31 NY2d 253, 257-258; Cimo v State of New York, 306 NY 143, 148-149).

Insofar as Local Law No. 7 purports to suspend for six months the duty of the Town Planning Board to act on petitioner’s application, it is inconsistent with the requirement of Town Law § 276 (4) that a town planning board act on applications for final plat approval within the prescribed time period, and is therefore invalid. We have no occasion today to consider whether such portions of Local Law No. 7 that are not inconsistent with Town Law § 276 (4) are separable, and therefore valid (see, Bareham v City of Rochester, 246 NY 140, 151, supra; Matter of McCabe v Voorhis, 243 NY 401, 416, supra). Nor do we reach any issue in respect to the constitutional validity of a local moratorium under the taking clauses of the Federal and State Constitutions (see, First English Evangelical Lutheran Church v County of Los Angeles, 482 US —, 107 S Ct 2378).

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

Order reversed, etc.


text:
    Paul B. S., Respondent, v Pamela J. S., Respondent. Legal Aid Society, as Law Guardian for Jessica S., an Infant, Intervenor-Respondent. In the Matter of Paul B. S., as Father of Jessica S., an Infant, Respondent, v Commissioner of Social Services of the City of New York, Appellant, and Pamela J. S. et al., Respondents. In the Matter of Jessica S., an Infant. Paul B. S., Respondent; Commissioner of Social Services of the City of New York, Appellant.
    Argued September 2, 1987;
    decided September 17, 1987

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Trudi Mara Schleifer and Francis F. Caputo of counsel), for appellant.

      Paul Frohman for Paul S., respondent.

      Patricia Nevergold and Lenore Gittis for intervenor-respondent.

      Pamela J. S., respondent pro se.

   OPINION OF THE COURT

Memorandum.

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

Supreme Court’s concurrent jurisdiction over child abuse proceedings is unaffected by the grant of "exclusive original jurisdiction” to Family Court over such proceedings (see, NY Const, art VI, § 7; Family Ct Act §§ 114, 1013; Kagen v Kagen, 21 NY2d 532, 538). The question remains, however, whether Supreme Court abused its discretion as a matter of law in exercising its concurrent jurisdiction in the instant case (see, Kagen v Kagen, supra, at 538; see also, Herrick v Second Cuthouse, 64 NY2d 692, 693). Here, before the commencement of the separate abuse/neglect proceeding in Family Court, the matrimonial action had been commenced in Supreme Court, an extensive pendente lite hearing on child custody had been held, and psychiatric examinations had been ordered and completed. We conclude, under these circumstances, that Supreme Court did not abuse its discretion as a matter of law in ordering consolidation of the two proceedings (CPLR 602 [b]) and exercising its concurrent jurisdiction over the abuse/neglect proceeding. Nor did Family Court, considering the circumstances in these consolidated proceedings, abuse its discretion as a matter of law in failing to conduct a dispositional hearing under Family Court Act § 1047. Appellant’s remaining arguments are without merit.

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

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


text:
    Jo A. Fries, Now Known as Jo A. Price-Yablin, Appellant, v Phillip M. Fries, Respondent.
    Argued September 1, 1987;
    decided September 17, 1987
   Appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved, it having been made clear at oral argument that the constitutional issue sought to be raised on the appeal was not preserved.


text:
    Mimi Blye, Appellant, v Manhattan and Bronx Surface Transit Operating Authority, Respondent, et al., Defendant.
    Submitted July 13, 1987;
    decided September 17, 1987
   Motion to dismiss appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from the order of the Appellate Division absent a two-Justice dissent (see, Finkelstein v Kins, appeal dismissed 69 NY2d 1023) or the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Andrew F. Capoccia et al., Appellants, v Dominick J. Brognano, Respondent.
    Decided September 17, 1987
   Appeal from the order of the Appellate Division which affirmed an order of Supreme Court entered October 1, 1986, inter alia, enjoining plaintiffs from filing petitions for attorneys’ liens dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Andrew F. Capoccia et al., Appellants, v Dominick J. Brognano, Respondent.
    Decided September 17, 1987
   Appeal from the order of the Appellate Division which affirmed an order of Supreme Court entered October 17, 1987, inter alia, denying plaintiffs’ motion for a preclusion order dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Andrew F. Capoccia, P. C., et al., Appellants, v Thomas Nicotera et al., Respondents.
    Decided September 17, 1987
   Appeal from the order of the Appellate Division which affirmed an order of Supreme Court entered October 17, 1986, inter alia, granting defendant Brognano’s motion for a conditional preclusion order dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Albert Citro, Respondent-Appellant, v James E. Sullivan, as Superintendent of Sing Sing Correctional Facility, Appellant-Respondent.
    Submitted July 27, 1987;
    decided September 17, 1987
   Motion insofar as it seeks leave to cross appeal dismissed for untimeliness. Motion insofar as it seeks poor person relief granted.


text:
    In the Matter of Deoanand Gosine et al., Respondents, v Joseph Russo et al., Constituting the Board of Appeals on Zoning of the City of White Plains, Appellants.
    Submitted July 27, 1987;
    decided September 17, 1987
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not the type of nonfinal order that comes within the meaning of CPLR 5602 (a) (2).


text:
    In the Matter of Ann Kohler, Respondent, v Board of Education, South Huntington Union Free School District, Appellant, et al., Defendants.
    Submitted July 13, 1987;
    decided September 17, 1987
   Motion for leave to appeal pursuant to CPLR 5602 (a) (1) (ii) dismissed upon the ground that movant Board of Education, South Huntington Union Free School District, has an appeal pending in the Appellate Division from the judgment sought to be appealed from. Simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals. [See, 122 AD2d 878.]


text:
    Martin Lang, Individually, as Supervisor of the Town of Southampton and on Behalf of All Others Similarly Situated, et al., Appellants-Respondents, v Peter F. Cohalan, as County Executive of the County of Suffolk, et al., Respondents-Appellants, and State of New York et al., Respondents.
    Decided September 17, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved. Cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that cross appellants are not parties aggrieved by the order of the Appellate Division (CPLR 5511).


text:
    Robert A. Richman et al., Appellants, v Harvey Albert et al., Respondents.
    Submitted July 6, 1987;
    decided September 17, 1987
   Motion for leave to appeal denied. Cross motion for sanctions denied.


text:
    Somerset Railroad Corporation, Petitioner, v Owasco River Railway, Inc., Respondent. (Proceeding No. 1.) Owasco River Railway, Inc., Appellant, v Somerset Railroad Corporation et al., Respondents. (Proceeding No. 2.) Anna H. Orszulak, Appellant, v Somerset Railroad Corporation, Respondent. (Proceeding No. 3.)
    Submitted July 27, 1987;
    decided September 17, 1987
   Motion by Owasco River Railway, Inc. for reargument denied. Motion by Anna H. Orszulak for reargument denied. [See, 69 NY2d 1023.]


text:
    Bernard H. Udell, Respondent-Appellant, v New York News, Inc., Doing Business as The Daily News, Appellant-Respondent.
    Submitted June 22, 1987;
    decided September 17, 1987
   Motions 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. The settlement as to damages is illusory because the parties have agreed that it may not be construed as a concession or admission by plaintiff that his damages are limited to any amount. Motion by CBS, Inc., et al., for leave to appear as amici curiae dismissed as academic.


text:
    The People of the State of New York, Appellant, v Douglas J. Furlong, Respondent.
    Argued September 4, 1987;
    decided October 6, 1987

      APPEARANCES OF COUNSEL

      Denis Dillon, District Attorney (Marea M. Suozzi and Anthony J. Girese of counsel), for appellant.

      Douglas J. Furlong, respondent pro se.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Lawrence S. Kahn and Christopher Keith Hall of counsel), amicus curiae.

   OPINION OF THE COURT

Order affirmed. The legal issue raised has been rendered academic by amendment of the regulation to require' proof of intent to consume (cf., People v Lee, 58 NY2d 491).

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


text:
    In the Matter of James R. Lenney.
    Decided October 6, 1987
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable James R. Lenney is suspended, with pay, effective immediately, from his office of Justice of the Herkimer Village Court, Herkimer County, pending disposition of his request for review of a determination of the State Commission on Judicial Conduct.

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


text:
    In the Matter of Elmira Business Institute, Inc., Appellant, v New York State Department of Education et al., Respondents. (Proceeding No. 1.) In the Matter of Elmira Business Institute, Inc., Appellant, v New York State Higher Education Services Corporation et al., Respondents. (Proceeding No. 2.)
    Argued September 3, 1987;
    decided October 6, 1987

      APPEARANCES OF COUNSEL

      Brendan C. O’Shea and Peter L. Danziger for appellant.

      Robert Abrams, Attorney-General (Leslie B. Neustadt, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (116 AD2d 133).

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


text:
    Theodore Fox, Appellant, v Jenny Engineering Corporation, Respondent, et al., Defendants. Theodore Fox, Appellant, v Jenny Engineering Corporation et al., Respondents. Theodore Fox, Plaintiff, v Jenny Engineering Corporation et al., Defendants. (And a Third-Party Action.) Theodore Fox, Appellant, v Everett G. Wambach et al., Respondents.
    (Appeal No. 1.)
    (Appeal No. 2.)
    (Appeal No. 3.)
    Argued September 2, 1987;
    decided October 6, 1987

      APPEARANCES OF COUNSEL

      James B. Tuttle for appellant.

      Timothy J. Perry for Jenny Engineering Corporation, respondent.

      James L. Fischer and Eugene H. Goldberg for Lozier Architects and Engineers, respondent.

      Roger G. Preston, Jr., for Everett G. Wambach and another, respondents.
   OPINION OF THE COURT

Orders affirmed, with costs. We agree with the Appellate Division, for the reasons stated in its memorandum (122 AD2d 532), that defendant Wambach was not an "owner” within the meaning of Labor Law § 240 (1) and defendants Jenny Engineering Corporation and Lozier Architects and Engineers were not agents of the owner within the meaning of that statute, and we reach no other issue.

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


text:
    Bernard Brown, Appellant, v Miriam Brown, Respondent.
    Decided October 6, 1987
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    The People of the State of New York ex rel. Russell Neufeld, on Behalf of Roberto Garcia, Appellant, v Jacqueline McMickens, as Commissioner of the Department of Correction of the City of New York, Respondent.
    Argued September 2, 1987;
    decided October 8, 1987

      APPEARANCES OF COUNSEL

      Russell Neufeld and Caesar D. Cirigliano for appellant.

      John J. Santucci, District Attorney (Kenneth Appelbaum and Jeanette Lifschitz of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, without costs, and the judgment of Supreme Court, Queens County, reinstated for the reasons stated in the dissenting opinion by the late Justice David T. Gibbons at the Appellate Division (117 AD2d 243, 247-252).

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


text:
    The People of the State of New York, Respondent, v Jeffrey Stiles, Appellant.
    Argued September 2, 1987;
    decided October 8, 1987

      APPEARANCES OF COUNSEL

      Lloyd Epstein and Judith H. Weil for appellant.

      Robert M. Morgenthau, District Attorney (Colleen E. Cain and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

The Appellate Term correctly excluded the first day of the statutory period in determining whether dismissal is required under CPL 30.30. That statute provides that the People must be ready for trial within fixed periods of time from the "commencement of a criminal action” (CPL 30.30 [1]; see also, CPL 30.30 [5]). Although the statute specifies the event which begins the running of the statutory period, it does not indicate whether the first day is to be included or excluded in making the computation. It was therefore appropriate for the court below to apply General Construction Law § 20 which states: "In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning.”

This construction is also consistent with prior decisions of this court where, although not in issue, this first-day exclusion has been the accepted practice in making the computations required by the very statute at issue, CPL 30.30 (see, e.g., People v Anderson, 66 NY2d 529; People v Sturgis, 38 NY2d 625).

In People ex rel. Neufeld v McMickens (70 NY2d 763 [decided herewith]) we have reached a different result because, as the late Justice Gibbons noted in his dissent at the Appellate Division in that case, the statute at issue there (CPL 170.70) "does not refer to measurement from a specified day or event; it refers to the period of actual custody” (117 AD2d 243, 250). Thus in that case the court erred in excluding the first day of custody from computation of the applicable period.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Genevieve Arnault Jackson, Also Known as Genevieve H. Jackson, Appellant.
    Argued September 4, 1987;
    decided October 8, 1987
    APPEARANCES OF COUNSEL

      John J. Hayden for appellant.

      Francis D. Phillips, II, District Attorney (Barbara J. Strauss of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s primary argument in this court is that her conviction must be reversed because she was denied effective assistance of counsel during the trial. After examining the record and viewing the evidence, law and circumstances of the case in totality, we conclude defendant’s allegations of counsel’s ineffectiveness are not supported by the record and she was not denied meaningful representation (see, People v Baldi, 54 NY2d 137, 146-147).

We concur with the Appellate Division’s disposition of defendant’s remaining contentions (see, 121 AD2d 743).

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

Order affirmed in a memorandum.


text:
    In the Matter of Richard Vlachos et al., Appellants, v New York City Loft Board et al., Respondents.
    Decided October 8, 1987

      APPEARANCES OF COUNSEL

      Iris S. Richman for appellants.

      Peter L. Zimroth, Corporation Counsel (Lucy A. Cardwell, Edward F. X. Hart and Karen Hutson of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The Loft Board’s determination that the second, third and fourth floors of petitioners’ building had been residentially occupied during the "window” period, and thus were residential units covered by the Loft Law (Multiple Dwelling Law § 281 [1]), is supported by substantial evidence. There is no requirement for Loft Law coverage that residentially occupied units be the primary residences of their tenants (see, Matter of BOR Realty Corp. v New York City Loft Bd., 70 NY2d 720). Nor were petitioners deprived of due process when the application to enlarge permitted uses under the zoning resolution was "grandfathered” by the City Planning Commission without a hearing. Petitioners were afforded a hearing prior to the designation of their building as an interim multiple dwelling, and they had no property right in the continued zoning classification of the area (see, McGowan v Cohalan, 41 NY2d 434, 438). Petitioners’ remaining contentions are unpreserved or without merit.

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

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


text:
    Artoc Bank & Trust Limited, Respondent, v Sheriff of the City of New York, Appellant.
    Decided October 8, 1987
    APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Noreen M. Giusti of counsel), for appellant.

      Barry R. Satine for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Sheriff of the City of New York, pursuant to an order of attachment issued in a litigation between Artoc Bank & Trust Limited and a third party, levied upon an account of Artoc and collected money in a sum in excess of $8,000,000. The Sheriff deposited this money into an interest-bearing account. Thereafter the underlying litigation was settled. The settlement agreement provided that the Sheriff was to transfer $6,000,000 of the funds in the Sheriff’s account to the third party, and the balance, after deduction of the Sheriff’s "allowable poundage and fees,” was to be returned to Artoc. The Sheriff deducted 5% of the $6,000,000 collected for the third party (i.e., $300,000) as allowable poundage under CPLR 8012 (b) (1). Artoc brought this conversion action against the Sheriff claiming that because the underlying litigation was settled, the Sheriff’s allowable poundage was limited to 5% of $1,000,000 (i.e., $50,000) by the provisions of CPLR 8012 (b) (3). Supreme Court granted Artec’s motion for summary judgment and denied the Sheriff’s cross motion for summary judgment, holding that the Sheriff was limited to a $50,000 poundage. The Appellate Division unanimously affirmed, without opinion.

CPLR 8012 (b) (3) provides for a statutory limit ($1,000,000) on the amount upon which a Sheriff’s poundage shall be computed in the event that a settlement is made after a levy by virtue of an order of attachment. The Legislature has determined that, in all cases which have been settled, there should be a limit upon the fees which would otherwise be unreasonably large (see, Stojowski v Banque de France, 294 NY 135, 145). Accordingly, notwithstanding that the Sheriff, having made a collection of money by virtue of an order of attachment, would have otherwise been entitled to poundage under CPLR 8012 (b) (1), because there has been a settlement of the underlying litigation here, the Sheriff’s poundage is subject to the statutory limit provided for in CPLR 8012 (b) (3).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Rafael Perez, Appellant.
    Decided October 8, 1987
    APPEARANCES OF COUNSEL

      Barry M. Fallik for appellant.

      Robert M. Morgenthau, District Attorney (Kathleen E. Fay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court’s failure to conduct a Gomberg inquiry (People v Gomberg, 38 NY2d 307) was not reversible error. In the course of his preparation for trial, defendant’s counsel, a member of the Legal Aid Society, examined the confidential file of the People’s chief witness who was a client of another Legal Aid attorney on a prior unrelated charge. Defendant has not shown that this created a conflict of interest or even a significant possibility thereof (see, People v Lombardo, 61 NY2d 97, 103).

Unlike People v Mattison (67 NY2d 462) and People v McDonald (68 NY2d 1), no actual conflict was demonstrated in this case — only an indirect and distinctly remote possibility thereof. The prior unrelated charge on which the People’s witness was represented by a member of the Legal Aid Society had been dismissed a week before defendant’s trial began; defendant’s counsel was uninvolved in that matter or in any other matter involving the interests of the People’s witness; and counsel perceived no conflict and no loyalty owing to the witness. Moreover, counsel did, as he had assured the Trial Judge he would, conduct an extensive and vigorous cross-examination of the witness. He questioned the witness about his prior criminal activity and on the influence which dismissal of the witness’s prior criminal case was having on his testimony. Additionally, in his summation, counsel repeatedly attacked the witness’s honesty and credibility, and characterized him as a "drug addict” who was neither "upstanding” nor "forthright”. Indeed, if anyone’s interests were at risk in trial counsel’s representation of defendant, it was that of the witness whose confidential file had been examined.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa 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:
    Richard Drzewinski et al., Respondents, v Atlantic Scaffold & Ladder Co., Inc., et al., Appellants, et al., Defendant. Bowery Savings Bank, Third-Party Plaintiff-Appellant, v Rambusch Decorating Co., Third-Party Defendant-Respondent. Swanke Hayden Connell Architects, Third-Party Plaintiff-Appellant, v Rambusch Decorating Co., Third-Party Defendant-Respondent.
    Argued September 2, 1987;
    decided October 8, 1987
    APPEARANCES OF COUNSEL

      Donald F. Malone and William A. Prinsell for Atlantic Scaffold & Ladder Company, Inc., appellant.

      Roger P. McTiernan, Alan Russo and Carol Ann Weinman for Bowery Savings Bank, appellant.

      Ronald B. Feingold and Barry B. LePatner for Swanke Hayden Connell Architects, appellant.

      Arthur N. Seiff, Michael J. Krakower and Daniel R. Goldman for plaintiffs-respondents.

      Anthony J. McNulty for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum. .

The order of the Appellate Division should be modified by granting Bowery Savings Bank and Swanke Hayden Connell & Partners judgment over against Atlantic Scaffold & Ladder Co. and Rambusch Decorating Co. on the basis of full contractual indemnity and, as so modified, affirmed.

The accident to plaintiff, a painter employed by Rambusch, occurred when he fell from scaffolding in the interior of the main headquarters of the Bowery Savings Bank which was undergoing a major renovation. The controversy at this stage is essentially among the contractors, an agent and the owner.

While we affirm the judgment based on a jury verdict, in favor of the injured plaintiff employee under Labor Law § 240 (1), we conclude that the contractual indemnity claims among the various defendants must be corrected.

In pertinent part, Labor Law § 240 (1) provides that all contractors, owners and their agents shall furnish and erect or cause to be furnished or erected on building construction, renovation, repair or demolition sites, scaffolding and other devices which will give proper protection to persons employed in such labor. The contracts, to which both Atlantic and Rambusch subscribed, contained an indemnity agreement requiring "[e]ach Contractor [to] indemnify the Bank and the Architects against claims arising from his work, to the fullest extent permitted by law”. A separate contractual provision required each contractor to "indemnify and save harmless the Owner * * * and their respective employees and agents from and against all losses and all claims, demands, payments, suits, actions, recoveries, and judgments of every nature and description brought or recovered against them by reason of any omission or act of the contractor, his agents or employees, in the execution of the work or in the guarding of it.”

The scaffolding contractor, Atlantic, contracted to provide, erect and maintain the scaffolding and other equipment for the safety of those working on the job. Consequently, there can be no question that Atlantic was properly found liable to plaintiff for his injuries (Labor Law § 240 [1]; Russin v Picciano & Son, 54 NY2d 311, 318; Haimes v New York Tel. Co., 46 NY2d 132). There is also support in the record for the affirmed factual finding that Swanke, by virtue of its activity at the jobsite, was Bowery’s agent within the meaning of Labor Law § 240 (1) and thus both were properly liable to plaintiff.

Swanke and Bowery are, however, entitled to full contractual indemnification from Atlantic and Rambusch who erroneously claim that Bowery and Swanke should be limited only to contribution because the indemnity clause does not contain express language referring to the negligence of the indemnitee. A party is entitled to full contractual indemnification provided that the "intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances” (Margolin v New York Life Ins. Co., 32 NY2d 149, 153; see also, Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 159; Rodriguez v Baker, 91 AD2d 143, 146, affd for reasons stated below 61 NY2d 804). Moreover, full contractual indemnification was not prohibited by the statute in effect at the time of this accident (see, General Obligations Law former § 5-322.1, as amended by L 1981, ch 964; Quevedo v City of New York, 56 NY2d 150).

The remaining issues raised are either without merit or not preserved for review by this court.

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

Order modified in accordance with the memorandum herein, with costs to Bowery Savings Bank and Swanke Hayden Connell and Partners against Atlantic Scaffold & Ladder Company, Inc. and Rambusch Decorating Co. and, as so modified, affirmed, with costs to plaintiffs against Atlantic, Bowery and Swanke.


text:
    Leon Talbot et al., Respondents-Appellants, v Johnson Newspaper Corporation et al., Appellants-Respondents, and Stuart P. MacLaren et al., Respondents.
    Submitted July 27, 1987;
    decided October 8, 1987
   Motion by plaintiffs for leave to cross appeal dismissed as, untimely (CPLR 5513).


text:
    In the Matter of Michael J. Greenfeld.
    Decided October 13, 1987
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Michael J. Greenfeld is suspended, with pay, effective immediately, from his office of Justice of the Valley Stream Village Court, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Roger A. King.
    Decided October 13, 1987
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Roger A. King is suspended, without pay, effective immediately, from his offices of Justice of the Town Court of Monroe and Justice of the Village Court of Harriman.

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


text:
    The People of the State of New York, Respondent, v Joseph McLaurin, Appellant.
    Argued September 9, 1987;
    decided October 13, 1987

      APPEARANCES OF COUNSEL

      Hillard Wiese and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Peter D. Coddington and Stacey K. Edelbaum of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted upon his guilty plea of criminal possession of a weapon in the third degree. At the suppression hearing, the arresting officer testified that he and his partner —assigned that night to the Central Robbery Division — were driving in an unmarked car around midnight in a desolate area of The Bronx, when they observed a small red car with rental plates speed past them on the right at about 45 miles per hour. The speed limit for that area was 30 miles per hour. Immediately after passing the officers’ car, the red car made a sudden right turn onto a street with abandoned buildings and bricked up doorways. The officers followed and saw the car approximately halfway down the street rolling slowly along the right-hand curb with no headlights on, and only brake lights visible. The officers overtook the car and ordered the driver to stop. One officer approached the driver and requested that he alight from the car; the other approached defendant, who was sitting in the passenger seat, and asked what he and the driver were doing there. Defendant responded that they had j'ust stopped for a moment, whereupon the officer asked defendant to step out of the car. As defendant opened the car door, the officer observed by means of the interior car light— which was lit because the driver’s door was open — the bulge of a small caliber revolver tucked into defendant’s waist-length jacket. The officer directed defendant to continue to get out of the car; he removed the gun from the jacket and placed defendant under arrest. The officer testified that he had ordered defendant out of the car for his personal safety.

Both lower courts credited the officer’s version of the events and found the stop justified because the car had been speeding. Indeed, the legality of the stop itself is not disputed; the only issue pressed by defendant on this appeal is the propriety of the additional intrusion upon him — a passenger — by the order to step out of a car that was stopped because of the driver’s unlawful conduct.

In Pennsylvania v Mimms (434 US 106), the United States Supreme Court held that the inherent and inordinate risk of danger confronting an officer as he approaches the driver of an automobile that has been stopped for a traffic infraction justifies the minimal additional intrusion of ordering the driver out of the car (see, Michigan v Long, 463 US 1032, 1047-1048; People v Woods, 64 NY2d 736, 737; People v Russ, 61 NY2d 693, 694; People v Landy, 59 NY2d 369, 376). In upholding the hearing court’s denial of defendant’s motion to suppress, the Appellate Division held that the rationale of the Mimms decision always justifies an officer’s request, as a safety measure, that the passenger also exit the car (see, Pennsylvania v Mimms, 434 US 106, 110, n 5, supra; People v David L., 56 NY2d 698, revg on dissent 81 AD2d 893, 895). Defendant argues that the Mimms decision was supported not only by concerns for the officer’s safety, but also by the driver’s unlawful conduct and that absent some suspicion of unlawful conduct on the part of a passenger, an officer is prohibited by the Fourth Amendment from ordering such passenger out of the car.

We need not now resolve whether the Mimms rationale would always justify an officer in ordering any or all of the passengers out of a lawfully stopped car, for this record reveals that the police conduct at issue here was predicated not only on the traffic violation and the perceived threat of danger from the driver, but also on the combination of additional factors that warranted apprehension as to the defendant passenger as well. Bearing in mind that reasonableness is the touchstone of our inquiry into the propriety of police conduct, we must weigh the degree and scope of the particular intrusion " 'against the precipitating and attending conditions’ ” confronted (People v Harrison, 57 NY2d 470, 475, quoting People v De Bour, 40 NY2d 210, 223; see, People v Chestnut, 51 NY2d 14, 21, 22). Here, the area was abandoned (see, People v Bronston, 68 NY2d 880, 881), the hour was late, and the fact that the vehicle — having already violated the speed limit — was moving slowly with no lights on was sufficiently peculiar to awaken suspicion as to the activity of the occupants. Under these circumstances, the officer was justified in acting to secure the safety of both officers by imposing upon defendant the de minimis intrusion of ordering him — a person whose progress had already been impeded as a necessary incident to the lawful stop of the vehicle — to step out while his partner investigated the driver’s credentials (see, People v Livigni, 58 NY2d 894, affd for reasons stated below 88 AD 2d 386 [empty gun holster in plain view on front seat justified ordering passenger out]; Commonwealth v Farmer, 12 Mass App 961, 428 NE2d 143 [passenger properly ordered out of car under the circumstances to preclude access to weapons or means of escape]).

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

Order affirmed in a memorandum.


text:
    Camille Brennan et al., Respondents, v Breezy Point Cooperative, Inc., et al., Appellants.
    Decided August 3, 1987;
    decided October 13, 1987
   Motion for leave to appeal dismissed with $20 costs and necessary reproduction disbursements. 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 (see, Capone v Chesebrough Ponds, 67 NY2d 904).


text:
    Elaine Catherwood et al., Appellants, v American Sterilizer Company et al., Respondents.
    Submitted August 24, 1987;
    decided October 13, 1987
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the orders appealed from do no more than affirm orders denying motions to amend the complaint to add parties as plaintiffs and therefore do not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Miguel Gutierrez and Jose Rivera, Appellants.
    Submitted July 27, 1987;
    decided October 13, 1987
   Motions to dismiss the appeals granted and the appeals dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]). Motions for assignment of counsel dismissed as academic.


text:
    Barbara K. Russell, Respondent, v Donald R. Russell, Appellant.
    Submitted August 3, 1987;
    decided October 13, 1987
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    In the Matter of Russell T. Weil et al., Appellants, v Roderick G. W. Chu et al., Constituting the New York State Tax Commission, Respondents.
    Argued September 10, 1987;
    decided October 15, 1987

      APPEARANCES OF COUNSEL

      Robert J. Hickey and Ernest V. Luzzatto for appellants.

      Robert Abrams, Attorney-General (Francis V Dow, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (120 AD2d 781).

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


text:
    Diana P. Manolovici, Respondent, v 136 East 64th Street Associates et al., Defendants, and C. Gerard Manolovici, Appellant.
    Argued September 3, 1987;
    decided October 15, 1987

      APPEARANCES OF COUNSEL

      Alan D. Scheinkman and Frederick L. Sohn for appellant.

      Thomas F. Tivnan for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and judgment awarded to defendant-appellant declaring that plaintiff and defendant-appellant are cotenants with equal rights to subscribe to purchase the shares allocated to the subject apartment.

The plaintiff, Diana P. Manolovici, and the defendant, C. Gerard Manolovici, were cosignatories to a residential lease to apartment 9A at 136 East 64th Street in New York City, a three-bedroom, rent-stabilized apartment, that served as the couple’s marital home before their divorce. During the term of the lease, a cooperative conversion plan was accepted for filing by the Attorney-General, which afforded the "tenant in occupancy” on September 6, 1979, the right to purchase the Manolovici apartment at the favorable insider’s price of some $130,000. At the time the plan became effective the Manolovicis were in the midst of divorce litigation. Mr. Manolovici was supporting the family, but was voluntarily residing elsewhere and Ms. Manolovici was living in the apartment with the couple’s two children. The parties had no legally binding agreement as to who was entitled to possession of the apartment, and their subsequent judgment of divorce addressed neither the issue of possessory rights nor the question of who was entitled to purchase the apartment.

In the present action, both parties sought a declaration of their rights to subscribe to the shares in the apartment, with Ms. Manolovici claiming that she had the exclusive right to purchase and Mr. Manolovici contending that as tenants in common they were both entitled to subscribe to the stock and proprietary lease allocable to the apartment as coequal joint purchasers.

The "critical date” for determining whether an interested party is a "tenant in occupancy” entitled to participate in a cooperative conversion is the date the offering plan is accepted for filing by the Attorney-General (see, General Business Law § 352-eeee [2] [d] [ix]; Rent Stabilization Law [Administrative Code of City of New York] § YY51-6.0 [c] [9-a] [now § 26-511 (c) (9-a)]; Code of the Rent Stabilization Association of New York City, Inc. § 61 [4] [b] [Rent Stabilization Code]; De Kovessey v Coronet Props. Co., 69 NY2d 448; Consolidated Edison Co. v 10 W. 66th St. Corp., 61 NY2d 341; Wissner v 15 W. 72nd St. Assocs., 58 NY2d 645, affg 87 AD2d 120). Unfortunately the term "tenant in occupancy” is not defined in the applicable statutes (Consolidated Edison Co. v 10 W. 66th St. Corp., supra). However, we agree with the trial court that Mr. Manolovici maintained a sufficient nexus with the apartment as of the critical date to qualify as a tenant in occupancy entitled to participate on an equal basis with Ms. Manolovici in purchasing the apartment.

This court has recognized that a tenant of record may qualify as a "tenant in occupancy” of a rent-stabilized apartment without actually using the apartment as his primary residence (Burns v 500 E. 83rd St. Corp., 59 NY2d 784; Spitalnik v Springer, 59 NY2d 112, modfg 87 AD2d 797; Wissner v 15 W. 72nd St. Assoc., 58 NY2d 645, supra; Ian v Wassberg, 55 NY2d 706; cf., Consolidated Edison Co. v 10 W. 66th St. Corp., 61 NY2d 341, supra [corporation held to be tenant in occupancy]). Indeed, the Rent Stabilization Code permitted tenants of record of vacant or sublet apartments to claim tenant in occupancy status, thereby recognizing that under some circumstances, a lessee of record need not be in actual occupancy to participate in a cooperative conversion.

We find determinative here the fact that Mr. Manolovici retained a sufficient connection to the apartment so as to qualify as a tenant in occupancy. Regardless of any informal agreement the parties may have had regarding possessory rights, Mr. Manolovici retained the legal right to occupy the apartment. He maintained his landlord-tenant relationship as of the date the plan was accepted for filing. Further, neither party asserted the right to possess or purchase the apartment in the divorce proceedings. Thus, on the "critical date” of the plan, both parties had an equal right of possession and both cotenants were using the former marital residence for the purpose of raising and sheltering their family. Under these circumstances, we find that Mr. Manolovici was a "tenant in occupancy” entitled to purchase the subject apartment on a coequal joint basis with his cotenant.

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

Order reversed, etc.


text:
    In the Matter of Anthony J. McNulty et al., Appellants, v New York State Tax Commission, Respondent.
    Argued September 10, 1987;
    decided October 15, 1987

      APPEARANCES OF COUNSEL

      Anthony J. McNulty and Marylin D. McNulty, appellants pro se.

      Robert Abrams, Attorney-General (Daniel Smirlock, O. Peter Sherwood, Peter H. Schiff and Nancy A. Spiegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioners are taxpayers whose sole source of income in 1979, the tax year at issue, was a distributive share of the earnings of a New York partnership. In August of 1979 petitioners moved their residence from New York to New Jersey. As a consequence, they were required to file two separate State personal income tax returns — one covering the period of residence and another covering the period of nonresidence — and to prorate their personal exemptions and deductions, allocating them between the two returns (Tax Law § 654 [e], [fl).

Petitioners filed returns in compliance with these rules, but did not follow a related Tax Commission regulation that requires taxpayers who move into or out of the State during the tax year to treat partnership gains (or losses) as having all accrued in "the portion of the taxable year” in which the partnership’s own tax year ends (20 NYCRR 148.6). The effect of this regulation, which expressly prohibits taxpayers from prorating partnership income between their separate resident and nonresident returns, is to compel the taxpayer who has changed residence during the tax year to report all of his partnership income on one or the other of his separate tax returns for that year — regardless of when the income was actually received. As applied to taxpayers such as petitioners, whose sole source of income is a partnership distribution, use of the regulation results in the loss of the benefit of some portion of otherwise allowable personal exemptions and deductions, since exemptions and deductions must be prorated and allocated between the taxpayer’s resident and nonresident returns (Tax Law § 654 [c], [e]) and are available only to the extent that they offset the income reported on each return.

We conclude that regulation 148.6 is an invalid exercise of the Tax Commission’s authority. While section 171 of the Tax Law gives the Commission broad power to promulgate "reasonable rules and regulations,” it also prohibits the Commission from promulgating rules and regulations that are "inconsistent with law” (see, e.g., Matter of Friedsam v State Tax Commn., 64 NY2d 76). Indeed, it is elementary that " ' [administrative agencies can only promulgate rules to further the implementation of the law as it exists; they have no authority to create a rule out of harmony with the statute’ ” (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471, 480; Matter of Jones v Berman, 37 NY2d 42, 53; see also, Matter of Cady [Aetna Life & Cos. Co.], 61 NY2d 594, 597).

Section 654 of the Tax Law, which establishes specialized reporting requirements for taxpayers who change resident status during the tax year, evinces a clear legislative intention that most forms of income, as well as exemptions and standard deductions, be allocated between the taxpayer’s resident and nonresident returns in a manner that either reflects the actual date of receipt and expenditure or encompasses an annual amount distributed on a proportionate basis (see, Tax Law § 654 [b], [e], [f]; cf., § 654 [c], [i] [governing "special accruals” and "lump sum” distributions]). By requiring that annual partnership distributions be reported in their entirety on 1 of the 2 returns without regard either to when such distributions are received or to proration, rule 148.6 is inconsistent with this legislative policy. Even if, as the Commission contends, the State’s policy of conformity with Federal tax laws militates in favor of treating partnership distributions for accounting purposes as having accrued on the last day of the partnership’s fiscal year (see, 26 USC § 706; see also, Matter of Hunt v State Tax Commn., 65 NY2d 13), consistency with the reporting approach expressed in Tax Law § 654 would nonetheless require that, for present purposes, taxpayers be permitted to prorate the annual amount of the partnership distributions and allocate that amount proportionately between the resident and nonresident returns.

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

Order reversed, etc.

      . The regulation is as follows: "148.6 Distributive share of member of partnership. Where an individual or a trust is a member of a partnership and such individual or trust changes its resident status from resident to nonresident, or vice versa, the distributive share of partnership income, gain, loss and deduction of such individual or trust must be included in the computation of New York taxable income of such individual or trust for the portion of the taxable year in which or with which the taxable year of the partnership ends, and treatment of the distributive share of such individual or trust for New York State personal income tax purposes must be determined according to the status of such individual or trust as a resident or nonresident at such time. The distributive share of income, gain, loss and deduction of such individual or trust is not prorated between the separate New York State resident and nonresident income tax returns required under this Part.”

      . The following illustrates the effect of regulation 148.6 (22 NYCRR) upon a fictitious taxpayer whose partnership income, accruing December 31, is $40,000 and who moves out of the State at the end of the month of August:
      Computation Without Application of Regulations 148.6
      (Jan.-Aug.) (Sept.-Dee.)
      Resident Nonresident
      Total N.Y. Income 26,667 13,333
      N.Y. Deductions (8,340) (4,170)
      N.Y. Exemptions (1,867) (933)
      16,460 8,230
      TOTAL TAXABLE INCOME: $24,690 Computation Under Regulation 148.6
      (Jan.-Aug.) (Sept.-Dee.)
      Resident Nonresident
      Total N.Y. Income -0- 40,000
      N.Y. Deductions (8,340) (4,170)
      N.Y. Exemptions (1,867) (933)
      -0- 34,897
      TOTAL TAXABLE INCOME: $34,897


text:
    Ronald Luckoff et al., Respondents, v Sussex Downs, Inc., Appellant.
    Decided October 15, 1987


text:
    City of New York, Respondent, v Morton M. Goldberg, Appellant.
    Submitted August 10, 1987;
    decided October 15, 1987
   Motion for leave to appeal dismissed upon the ground that this court does not have power to entertain it (NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of Ashley S. Phyllis Shearer, Respondent; Cheryl S., Appellant. In the Matter of Regan S. Phyllis Shearer, Respondent; Cheryl S., Appellant.
    Submitted September 14, 1987;
    decided October 15, 1987
   Motion to vacate August 11, 1987 dismissal order denied. [See, 70 NY2d 708.]


text:
    Two Associates, Respondent, v Michael Brown, Appellant, et al., Defendant.
    Submitted August 17, 1987;
    decided October 15, 1987
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; State Communities Aid Assn. v Regan, 69 NY2d 821).


text:
    In the Matter of Village of Monticello et al., Respondents, v New York State Division of Human Rights, Appellant.
    Submitted August 10, 1987;
    decided October 15, 1987
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Joseph Fiorillo et al., Appellants, v New York State Department of Environmental Conservation, Respondent.
    Submitted September 14, 1987;
    decided October 15, 1987
   Motion to vacate June 15, 1987 dismissal order denied. [70 NY2d 641.]


text:
    In the Matter of Vincent M., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Decided October 20, 1987

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Mark Dwyer and Mary Agnes Lynch of counsel), for appellant.

      Lenore Gittis and Carol Goldstein 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, without costs (see, Matter of Frank C. 70 NY2d 408).

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


text:
    In the Matter of Community Bible Church, Inc., Appellant, v Pine Woods Union Church Association, Inc., Respondent.
    Decided October 22, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the order of reversal, absent a dissent by at least two Justices or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, §D.


text:
    The People of the State of New York, Respondent, v David Hill, Appellant.
    Argued October 14, 1987;
    decided October 22, 1987
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    In the Matter of JVC Tavern Corp., Doing Business as The Back Door, Respondent, v New York State Liquor Authority, Appellant.
    Argued October 6, 1987;
    decided November 10, 1987

      APPEARANCES OF COUNSEL

      Stephen D. Kolinsky and Gloria M. Dabiri for appellant.

      Irving N. Selkin and Morris Honig for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (123 AD2d 764).

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


text:
    Thomas E. Sullivan et al., Appellants, v Joy Manufacturing Company et al., Defendants, and J. W. Greer Company, Respondent.
    Argued October 7, 1987;
    decided November 10, 1987

      APPEARANCES OF COUNSEL

      Frank S. Kedzielawa and Helen Dempsey for appellants.

      John P. Cox for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Thomas Sullivan, an employee of Dunkirk Ice Cream Company, was severely injured on November 3, 1976 when a five-foot long ice chopper he was using to remove bent trays from an ice cream hardening machine struck the blade of one of the cooling fans used in connection with the machine. Although the machine was "down” at the time, no one had turned off the fan. A piece of the fan blade splintered off and hit Sullivan — who was standing on a catwalk between the machine and the fans — in the eye.

The machine, manufactured by J. W. Greer Company, had been sold to Foremost Dairies in 1962. Dunkirk purchased the machine, as well as the fans, from Foremost in 1970. The fans were manufactured by Joy Manufacturing Company. After the machine had been dismantled and stored for three years, in February 1973 it was installed at Dunkirk’s facility. Dunkirk then asked J. W. Greer Incorporated (Greer) to inspect the machine. Greer — one of the defendants in this action and the respondent on this appeal — had by that time acquired all of the assets of J. W. Greer Company, the manufacturer of the machine. On January 31 and February 1, 1974, Francis MacDonald, a Greer employee, made the inspection. At the time of MacDonald’s inspection, the catwalk and the cooling fans (a virtually free-standing unit) had not yet been installed; indeed, it is not clear from the record that they were even present at the location of the machine. MacDonald’s uncontradicted testimony was that the ice cream hardening machine was in a room by itself and not operational, and that he inspected it for alignment and physical condition.

Sullivan and his wife brought this action against several defendants, asserting claims against Greer based upon strict products liability, breach of warranty and negligence. Supreme Court granted Greer’s motion for summary judgment as to strict liability and breach of warranty, but left standing the negligence claim, based on Greer’s breach of its duty to warn Dunkirk of defects or dangers of the machine. On Greer’s appeal, the Appellate Division dismissed plaintiffs remaining cause of action against it, concluding that the record did not raise an issue of fact as to the existence of a "special relationship” between Dunkirk and Greer, as successor to the manufacturer of the machine, so as to impose a duty to warn on Greer (Schumacher v Richards Shear Co., 59 NY2d 239).

In Schumacher we noted that a duty to warn "commonly is imposed because of some special relationship, frequently economic” (59 NY2d, at 246, supra), and determined that such a duty could be imposed on a successor corporation that maintained sufficient links to the purchaser of products manufactured by its predecessor. We identified the following factors as among those that might be considered in determining whether there were sufficient links: succession to the predecessor’s service contracts, coverage of the particular machine under a service contract, service of that machine by the purchaser corporation, and a purchaser corporation’s knowledge of defects and of the location or owner of that machine (59 NY2d, at 247, supra). Without reaching the question whether Greer could in any event be liable for harm caused by the fan, we agree with the court below that the single service call is not sufficient to establish a "special relationship” between Greer and Dunkirk. Nor on this record is any issue of material fact raised by plaintiffs’ contention that Greer breached an independent duty to warn growing out of its own arrangement with Dunkirk to inspect the ice cream hardening machine. That arrangement could not give rise to a duty to inspect equipment of another manufacturer that was not yet installed —or possibly not even present — when Greer was called upon to make its inspection.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Steven Arthur Truesdell, Appellant.
    Argued October 9, 1987;
    decided November 10, 1987

      APPEARANCES OF COUNSEL

      Robert L. Miller for appellant.

      Robert J Simpson, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the evening of January 26, 1983, the bodies of Warren and Mary Lynch were discovered in their combined general store and residence. Both had been bludgeoned to death. The next day, defendant gave a recorded oral statement in which he described the events leading to the deaths.

In his statement, which was introduced at his trial for intentional murder, felony murder and related offenses, defendant recounted the following. After work, he and an acquaintance — Ronald Dingman — went driving in search of marihuana. As they were driving, Dingman said he was going to "hit” a store. Defendant, who knew that Dingman always carried a gun, asked if he still had the gun on him, but Dingman did not respond. Spotting the store, Dingman said, "I want to go in here for a while”, and they stopped and went inside. While defendant looked at merchandise, Dingman struck Warren Lynch several times with a lead pipe. Dingman asked defendant to hit Mary Lynch, but defendant "froze.” Dingman pushed defendant to the floor and struck Mary Lynch with the pipe and perhaps an axe handle as well. Dingman then emptied the cash register and ransacked the store. As he drove defendant from the crime scene, Dingman offered defendant money, saying, "Here’s your half.” When defendant refused the money, Dingman dropped defendant off and he walked home.

Defendant’s co-worker testified that the afternoon preceding the murders, defendant had told him that he might be earning some extra money that night towing cars. The day after the murders, defendant told the same co-worker that he had had a "rough night working” and that he had earned some extra money. Defendant flipped through a wad of money and put it back in his pocket. A friend of defendant’s testified that the night after the murders, defendant told him that he and Dingman had entered a store. Defendant picked up an axe handle, walked to the cash register, pretended that he wanted to purchase it, and then struck the old woman. When she asked defendant what he was doing, Dingman pushed defendant out of the way and "finished off the old lady.”

Defendant was acquitted of intentional murder, but convicted of two counts of felony murder and one count of robbery. He was sentenced to consecutive terms of imprisonment of 18 years to life on the felony murder counts. A unanimous Appellate Division affirmed.

While defendant urges insufficiency of the evidence, we conclude that there is sufficient evidence to support the jury’s finding that he was an accessory to the robbery of the store. Although in his statement defendant told the police that he was, in essence, an innocent bystander, there was basis in the evidence for the jury to disbelieve him. The day of the robbery defendant told a co-worker that he anticipated earning a lot of money that night, and after the murders he displayed a large sum of money, a fact consistent with his receipt of the proceeds of the robbery. The testimony of defendant’s friend that defendant admitted he had feigned purchase of an axe handle and had struck the old woman with it provided evidentiary support for a finding that defendant was a participant in the robbery. Because there is sufficient evidence to support defendant’s guilt of the underlying felony of robbery in the first degree (Penal Law § 160.15 [1]), and because the deaths of Warren and Mary Lynch occurred in the course of that crime, there is sufficient evidence to support defendant’s two felony murder convictions (Penal Law § 125.25 [3]). Defendant has not contended — nor could he — that he established the affirmative defense to felony murder (see, Penal Law § 125.25 [3]).

In addition, we conclude that the sentence imposed— consecutive terms of imprisonment of 18 years to life — was not illegal. Although the deaths of Warren and Mary Lynch may. be said to have occurred in the course of a single transaction — the robbery — it was separate acts that caused the deaths of the two victims, and neither act was a material element of the other (Penal Law § 70.25 [2]; People v Brathwaite, 63 NY2d 839, 843). While (unlike this court) both lower courts had discretion to impose concurrent rather than consecutive sentences, they were not required to do so.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Allen Allgood, Appellant.
    Argued October 8, 1987;
    decided November 10, 1987
    APPEARANCES OF COUNSEL

      Florence M. Kerner and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Term should be affirmed.

Having been. convicted after a jury trial of sexual misconduct, defendant now argues that his right to due process of law was violated when a "rape kit” that included spermatozoa taken from the complainant’s person and underpants was destroyed by the police department property clerk. The "rape kit” had been vouchered before defendant’s arrest and, consequently, was labeled "investigatory” rather than evidence to be held for trial. As a result of an oversight, the "rape kit’s” label was not changed when defendant was arrested and charged, and the evidence was thereafter mistakenly destroyed in accordance with a departmental policy of routinely disposing of unclaimed investigatory property after one year. The destruction of the "rape kit” was first disclosed during the trial testimony of the officer who had vouchered it. According to this officer, she had no knowledge of its destruction until she tried to obtain it from the property clerk on the morning before she was scheduled to testify.

The inadvertent destruction of the "rape kit” provides no basis for a reversal in this case. Defendant was aware of the existence of the "rape kit” some eight months before it was destroyed but never sought its production or expressed an interest in performing independent tests until its destruction was disclosed in the middle of trial. On this record, the only conclusion to be drawn is that defendant forfeited whatever right he had to demand production of the "rape kit” and, consequently, he cannot now complain about the People’s failure to preserve it (see, People v Reed, 44 NY2d 799).

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

Order affirmed in a memorandum.


text:
    Etela Izrailev, as Administratrix of the Estate of Sema Z. Izrailev, Deceased, Appellant, v Ficarra Furniture of Long Island, Inc., et al., Respondents. Ficarra Furniture of Long Island, Inc., Third-Party Plaintiff-Respondent, v K & R Electric Co., Inc., Third-Party Defendant-Respondent. Etela Izrailev, as Administratrix of the Estate of Sema Z. Izrailev, Deceased, Appellant, v 1000 Sunrise Highway, Inc., Defendant-Respondent and Third-Party Plaintiff-Respondent. K & R Electric Co., Inc., Third-Party Defendant-Respondent.
    Argued October 6, 1987;
    decided November 10, 1987

      APPEARANCES OF COUNSEL

      David Jaroslawicz and Mark Landesman for appellant.

      John P. Gibbons and Lawrence B. Lame for Ficarra Furniture of Long Island, Inc., respondent.

      William H Morris and Gerald P. McMorrow for 1000 Sunrise Highway, Inc., respondent.

      Steven I. Brizel and Michael I. Josephs for K & R Electric Co., Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs decedent, an electrician employed by third-party defendant K & R Electric, sustained fatal injuries when he fell from a ladder supplied by his employer for use in connection with work on an electrical sign owned by defendant Ficarra Furniture and attached to a building owned by defendant 1000 Sunrise Highway. Plaintiff brought this wrongful death action against defendants claiming, among other things, that decedent’s injuries were caused by a violation of Labor Law § 240. The trial court, despite plaintiffs objections, limited its charge on the potential Labor Law violations to defendants’ duty pertaining to the ladder. The jury found defendants not liable for decedent’s injuries. The trial court’s charge was in error and a new trial is required.

The testimony at trial showed that decedent had not been supplied with safety belts, insulated gloves, hard hats, or scaffolds. Plaintiff’s expert witness, a consulting safety engineer, stated that a Baker-type scaffold and insulated gloves should have been provided to decedent and that in the event a ladder was used, decedent should have been provided with a safety belt or a safety line. Given this unrebutted proof, it was error for the trial court to charge the jury that under Labor Law § 240 the only question was whether the ladder given to plaintiff was "improperly placed or operated” and that the jury should disregard any question as to the other safety devices mentioned in the statute.

Defendants contend that the claimed charge error is of no moment because — as the Appellate Division held — Labor Law § 240 (1) should not have been charged at all since the electric sign was not a part of a "building or structure”. We disagree and instead adopt the conclusion of the trial court, implicit in its decision to charge Labor Law § 240, that the sign, which was extended across the facade of the premises occupied by Ficarra Furniture at a height of 15 feet and was affixed so as to be held flat against the building wall, was part of the building for purposes of the statute.

We also reject defendants’ argument that decedent was not performing the type of work which is covered by Labor Law § 240. At the time of the accident, decedent was attempting to repair the sign which was operating improperly. "Repairing” is one of the specifically enumerated categories of work covered by the statute (see, Labor Law § 240 [1]).

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

Order reversed, etc.


text:
    In the Matter of Eastwood Building Committee of Roosevelt Island et al., Appellants, v William B. Eimicke, as Commissioner of New York State Division of Housing and Community Renewal, et al., Respondents.
    Submitted November 2, 1987;
    decided November 10, 1987
   Motion for leave to appeal denied. Motion for a stay and cross motion dismissed as academic.


text:
    The People of the State of New York, Respondent, v Milton Irizarry, Appellant.
    Argued October 13, 1987;
    decided November 12, 1987

      APPEARANCES OF COUNSEL

      Charles F. Crimi for appellant.

      Theodore E. Wiggins, Jr., District Attorney (William A. Mulligan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (126 AD2d 982).

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


text:
    The People of the State of New York, Respondent, v Preston Coleman, Appellant.
    Argued October 9, 1987;
    decided November 12, 1987

      APPEARANCES OF COUNSEL

      Steven J. Cohen and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Stacey K. Edelbaum and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Appellant was convicted after a jury trial of manslaughter in the first degree (Penal Law § 125.20 [1]) and criminal possession of a weapon in the second degree (Penal Law § 265.03). The only issue raised on this appeal is whether the trial court’s charge on the issue of causation deprived defendant of a fair trial. Defendant contends that two isolated remarks made by the trial court, during its instructions, one of them unpreserved, removed from the jury the factual question of whether the shooting caused the death of Raul Melendes. Taken out of context, it is possible to find error in the court’s comments. When its instructions are viewed in their entirety, however, the charge was unquestionably a correct statement of the law and reserved the question of causation to the jury and upon our review of the record, there is no basis for concluding that the jury could not follow the court’s instructions (see, People v Adams, 69 NY2d 805, 806; People v Goodfriend, 64 NY2d 695, 697; People v Canty, 60 NY2d 831, 832).

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

Order affirmed in a memorandum.