text:
    [641 NE2d 147, 617 NYS2d 127]
    Batoul Herbert et al., Appellants, v Morgan Drive-A-Way, Inc., et al., Respondents, et al., Defendant. (Action No. 1.) Dorothy Mollicone, Appellant, v Errol K. Miller et al., Respondents. (And a Third-Party Action.) (Action No. 2.)
    Decided September 1, 1994

      APPEARANCES OF COUNSEL

      Cynthia Feathers, Saratoga, and Eli B. Bosch, Kingston, for Batoul Herbert and another, appellants.

      Hurley, Fox, Selig & Kelleher, Stony Point (Jeanne M. Hurley and Benjamin E. Selig of counsel), for Dorothy Mollicone, appellant.

      Petito & LaRose, Poughkeepsie (Keith V. LaRose of counsel), for Morgan Drive-A-Way, Inc. and Errol K. Miller, respondents.
   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), appeal by the Herberts dismissed, without costs, upon the ground that the Appellate Division order does not finally determine action No. 1 within the meaning of the Constitution. The order appealed from in action No. 1 does not resolve plaintiffs’ claim against Dorothy Mollicone, and her cross claim against defendants Morgan Drive-A-Way, Inc. and Errol K. Miller has never been dismissed. Accordingly, claims remain pending with respect to all parties in action No. 1. On appeal by plaintiff Dorothy Mollicone in action No. 2, order, insofar as appealed from, reversed, with costs, and defendants’ motion for summary judgment in action No. 2 denied, for the reasons stated in the dissenting memorandum of Justice Paul J. Yesawich, Jr., at the Appellate Division (202 AD2d 886, 888).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


source: Caselaw Access Project

license: Public Domain

text:
    American Telephone and Telegraph Company, Respondent, v New York State Department of Taxation and Finance, Appellant.
    Submitted July 25, 1994;
    decided September 1, 1994
   Motion for reargument and amendment of remittitur denied. [See, 84 NY2d 31.]

Judges Simons and Levine taking no part.


text:
    In the Matter of the Claim of Talakkottur R. David, Appellant. John F. Hudacs, as Commissioner of Labor, Respondent.
    Submitted June 27, 1994;
    decided September 1, 1994
   Motion, treated as a motion for reargument of motion for leave to appeal or, alternatively, for an amended order, denied. [See, 82 NY2d 663.]

Judge Levine taking no part.


text:
    Eugene H. Duffy et al., Appellants, v James W. Wetzler et al., Respondents.
    Submitted August 29, 1994;
    decided September 1, 1994
   Motion for leave to appeal denied. Motion for a stay dismissed as academic, leaving the Appellate Division order of August 8,1994 containing a partial injunction operative.


text:
    The People of the State of New York ex rel. James Harris, Appellant, v Patrick Mahoney, as Sheriff of Suffolk County, Respondent.
    Submitted May 16, 1994;
    decided September 1, 1994
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429). Motion for poor person relief dismissed as academic.


text:
    [640 NE2d 1134, 616 NYS2d 900]
    The People of the State of New York, Respondent, v Angel Vargas Diaz, Also Known as Felipe, Appellant.
    Decided September 8, 1994

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender of Monroe County, Rochester (Drew R. DuBrin of counsel), for appellant.

      Howard R. Relin, District Attorney of Monroe County, Rochester (Mark W. Pedersen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Sufficient evidence exists to support the hearing court’s determination that defendant voluntarily consented to accompany the police officers to the station on March 13, 1991, and was not in custody when he made an exculpatory statement (see, People v Yukl, 25 NY2d 585, 588-589, cert denied 400 US 851).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick 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:
    Serge Dos, Appellant, v Scelsa & Villacara et al., Respondents.
    Submitted June 6, 1994;
    decided September 8, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which denied reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    888 7th Avenue Associates Limited Partnership, Appellant, v AAER Sprayed Insulations, Inc., et al., Respondents.
    Submitted May 23, 1994;
    decided September 8, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of plaintiff’s motion for leave to amend its complaint, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    L.I.C. Commercial Corp., Appellant, v Norman L. Rosenthal, Respondent.
    Submitted June 6, 1994;
    decided September 8, 1994
   Motion for leave to appeal dismissed upon the ground that the movant has failed to show that the order sought to be appealed from is final as required by section 500.11 (d) (1) (iv) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iv]).


text:
    [640 NE2d 1134, 616 NYS2d 900]
    Gary Rodriguez, Respondent, v Margaret Tietz Center for Nursing Care, Inc., Defendant and Third-Party Plaintiff. Restor Technologies, Inc., Third-Party Defendant-Appellant, et al., Fourth-Party Defendants.
    Decided September 13, 1994

      APPEARANCES OF COUNSEL

      Gilroy Downes Horowitz & Goldstein, New York City (Lawrence C. Downes of counsel), for third-party defendant-appellant.

      Birzon, Sobel & Szczepanowski, Smithtown (Mitchell J. Birzon of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and plaintiff’s cause of action based on Labor Law §240 dismissed.

Plaintiff in this case was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1). In placing a 120-pound beam onto the ground from seven inches above his head with the assistance of three other co-workers, Rodriguez

was not faced with the special elevation risks contemplated by the statute (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick 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 appealed from and order of the Appellate Division brought up for review reversed, etc.


text:
    In the Matter of Anonymous, Appellant.
    Submitted July 11, 1994;
    decided September 13, 1994
   Motion for leave to appeal dismissed upon the ground that it does not lie.


text:
    In the Matter of Kelly Calandro, Respondent, v Home Insurance Company, Appellant.
    Submitted June 20, 1994;
    decided September 13, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    David Fekishazy et al., Appellants, v John E. Thomson et al., Respondents.
    Submitted August 29, 1994;
    decided September 13, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Richard Glover, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, et al., Respondents.
    Submitted June 13, 1994;
    decided September 13, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie (CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    Virginia Iannarone, Appellant, v Peter Faucetta, Respondent.
    Submitted July 5, 1994;
    decided September 13, 1994
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied plaintiff’s cross motion for leave to serve a supplemental summons and amended complaint, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Jean Kulhan, Formerly Known as Zwick, Appellant, v William Zwick, Respondent.
    Submitted July 5, 1994;
    decided September 13, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing plaintiffs appeal to that Court, denied; motion for leave to appeal otherwise dismissed upon the ground that the other Appellate Division orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Joshua Lederberg, a Suspended Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted July 18, 1994;
    decided September 13, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Dean Loren, Appellant, v Diane B. Marry, Respondent.
    Submitted August 8, 1994;
    decided September 13, 1994
   Motion to amend the June 21, 1994 order of the Court of Appeals granted and said order is amended to delete the imposition of costs. [See, 83 NY2d 954.]

Judge Levine taking no part.


text:
    Yvonne McCain et al., Respondents-Appellants, v David N. Dinkins, as Mayor of the City of New York, et al., Appellants-Respondents, et al., Defendant. In the Matter of Maria Lamboy et al., Respondents-Appellants, v Barbara J. Sabol, as Administrator of the Human Resources Administration of the City of New York and as Commissioner of the New York City Department of Social Services, et al., Appellants-Respondents, et al., Defendant. Karen Slade et al., Respondents-Appellants, v David N. Dinkins, as Mayor of the City of New York, et al., Appellants-Respondents, et al., Defendant.
    Submitted July 11, 1994;
    decided September 13, 1994
   Motion to amend the Court of Appeals May 10, 1994 opinion herein denied. [See, 84 NY2d 216.]


text:
    The People of the State of New York, Appellant, v Crystal L. England, Respondent.
    Submitted July 18, 1994;
    decided September 13, 1994
   Motion for reargument or, in the alternative, for clarification of the Court of Appeals June 14, 1994 opinion herein, denied. [See, 84 NY2d 1.]

Judge Levine taking no part.


text:
    The People of the State of New York, Respondent, v Abraham Sokol, Appellant.
    Submitted August 29, 1994;
    decided September 13, 1994
   Appeal taken as of right, pursuant to CPLR 5601, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie from the order entered in this criminal action.


text:
    Augustin Rodriguez, Respondent, v Laurence S. Baker, Appellant, et al., Defendant.
    Submitted June 13, 1994;
    decided September 13, 1994
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Cross motion for sanctions denied.


text:
    Sherifa Shoy, by Her Mother and Natural Guardian, Roberta Wilson, et al., Appellants, v St. Lukes Roosevelt Hospital Center et al., Defendants, and "Jane” Wilson, Respondent.
    Submitted July 5, 1994;
    decided September 13, 1994
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    Pearl Steiner, Appellant, v City of New York et al., Respondents.
    Submitted June 13, 1994;
    decided September 13, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which granted in part the City’s motion to strike plaintiff’s reply brief, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Thomas C., Respondent.
    Submitted June 6, 1994;
    decided September 13, 1994
   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 a nonfinal order of the type within the meaning of the CPLR 5602 (a) (2).


text:
    Marie Trevisano, Individually and as Sole Distributee of the Estate of Lillian Apuzzo, Deceased, Appellant, v Salvatore Giordano et al., Respondents.
    Submitted July 25, 1994;
    decided September 13, 1994
   Motion to vacate the Court of Appeals June 22, 1994 rule 500.9 (b) (22 NYCRR 500.9 [b]) order of dismissal granted. [See, 83 NY2d 963.] On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    Utica Fire Insurance Company of Oneida County, Respondent, v Joanne A. Gozdziak, Individually and as Parent and Natural Guardian of Richard M. Gozdziak, an Infant, Appellant, and Ronald J. Gozdziak et al., Respondents.
    Submitted August 29, 1994;
    decided September 13, 1994
   Motion to vacate the Court of Appeals August 4, 1994 order of dismissal denied. [See, 84 NY2d 821.]


text:
    Lynn Weiss, Individually and as Administratrix of the Estate of William G. Weiss, Deceased, and as Mother and Natural Guardian of William Weiss and Others, Infants, Appellant, v Francis Manfredi et al., Respondents.
    Submitted August 15, 1994;
    decided September 13, 1994
   Motion for reargument or, in the alternative, for amendment of the Court of Appeals June 30, 1994 memorandum, denied. [See, 83 NY2d 974.]


text:
    Edward Wider, Appellant, v Family Gard, Inc., et al., Respondents.
    Submitted July 11, 1994;
    decided September 13, 1994
   Motion for reargument of motion for leave to appeal dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 83 NY2d 884.]


text:
    [642 NE2d 319, 618 NYS2d 1]
    Milhelm Attea & Bros., Inc., Also Known as Milhem Attea & Brothers, Inc., Appellant, v Department of Taxation and Finance of the State of New York et al., Respondents. Elias H. Attea, Jr., Appellant, v James W. Wetzler, as Commissioner of Taxation and Finance of the State of New York, et al., Respondents.
    Decided September 22, 1994

      APPEARANCES OF COUNSEL

      Zdarsky, Sawicki & Agostinelli, Buffalo (Joseph E. Zdarsky of counsel), for Milhelm Attea & Bros., Inc., appellant.

      Williams, Stevens, McCarville & Frizzell, P. C., Buffalo (Timothy M. O’Mara of counsel), for Elias H. Attea, Jr., appellant.

      G. Oliver Koppell, Attorney-General, Albany (Lew A. Millenbach, Jerry Boone and Peter H. Schiff of counsel), for respondents.

      Block & Colucci, P. C., Buffalo (Joseph F. Crangle of counsel), for Seneca Nation of Indians’ Honor Indian Treaties Supporters Tribal Council Committee and another, amici curiae.

      Zapruder & Odell (Bradley S. Waterman of the District of Columbia Bar, admitted pro hac vice, of counsel), for the Saint Regis Mohawk Tribe and another, amici curiae.

      Roland, Fogel, Koblenz & Carr, Albany (Usher Fogel of counsel), for Empire State Petroleum Association, Inc., amicus curiae.

      Hodgson, Russ, Andrews, Woods & Goodyear, Albany (Robert D. Plattner of counsel), for Independent Petroleum Marketers of New York, Inc. and another, amici curiae.

   OPINION OF THE COURT

Upon reargument, following remand by the Supreme Court of the United States, order affirmed, with costs.

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick. Taking no part: Judge Levine.


text:
    [641 NE2d 1073, 617 NYS2d 455]
    The People of the State of New York, Respondent, v George Irizarry, Appellant.
    Decided September 22, 1994

      APPEARANCES OF COUNSEL

      Francis P. Karam, New York City, for appellant.

      Robert T Johnson, District Attorney of Bronx County, Bronx (Raphael J. Berman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant appeals by permission of a dissenting Associate Justice of the Appellate Division. Since the determination below involves an undisturbed mixed question of law and fact, which finds support in the record, we therefore affirm.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick 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:
    Thomas S. Gulotta, on Behalf of Himself and All Other Real Property Taxpayers in the County of Nassau Similarly Situated, et al., Appellants, v State of New York et al., Respondents. Robert L. King, on Behalf of Himself and All Other Real Property Taxpayers in the County of Monroe Similarly Situated, et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents. Gerald Benjamin, on Behalf of Himself and All Other Real Property Taxpayers in the County of Ulster Similarly Situated, et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Submitted September 19, 1994;
    decided September 22, 1994
   Appeals transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Joseph Petito, Respondent, v Alice-Mary Piffath, as Administratrix of the Estate of Ralph P. Piffath, Deceased, Appellant, et al., Defendants.
    Submitted August 15, 1994;
    decided September 22, 1994
   Motion to dismiss the appeal herein denied.


text:
    [641 NE2d 1073, 617 NYS2d 455]
    In the Matter of Mena Rosen, Claimant, v First Manhattan Bank et al., Appellants. Workers’ Compensation Board, Respondent.
    Decided September 27, 1994

      APPEARANCES OF COUNSEL

      Fischer Brothers, New York City (Amy Levitt of counsel), for appellants.

      G. Oliver Koppell, Attorney-General, New York City (Howard B. Friedland, Theresa E. Wolinski, Jane Lauer Barker, Peter H. Schiff and Jerry Boone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The issue presented in this proceeding arising from a claim for workers’ compensation death benefits is whether decedent’s injuries are compensable as arising out of and in the course of his employment. Although decedent’s death actually occurred in an 18th floor stairwell that was not technically part of the employer’s premises, evidence that decedent was initially approached by his attacker, a coworker, in the lobby of the building where the employer’s offices were located, upon arriving for his scheduled tour of duty, and that the two men rode the elevator which was the customary route to the employer’s 17th floor offices, supports the conclusion that the assault was "rooted in events * * * started at or about the premises of the employer” (Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189, 194). Thus, substantial evidence supports the conclusion that the assault "arose in the course of his employment” (see, 1 Larson, Workmen’s Compensation § 15.43, at 4-132; Matter of Lemon v New York City Tr. Auth., 72 NY2d 324, 327; see also, Matter of Notowitz v Rose Towel & Linen Supply Co., 36 AD2d 543, affd no opn 29 NY2d 502).

Pursuant to Workers’ Compensation Law § 21 (1), an assault which arose in the course of employment is presumed to have arisen out of the employment, absent substantial evidence that the assault was motivated by purely personal animosity (Matter of Seymour v Rivera Appliances Corp., 28 NY2d 406, 409). In light of the record evidence that the victim and the assailant were co-workers who may have been engaged in a dispute over a loan of money — a practice which was condoned by the employer — and that the parties had no social ties outside of work, the Workers’ Compensation Board was within its fact-finding province to reject the testimony of decedent’s assailant as to the personal motive for the homicide, and to conclude that the police investigator’s testimony that the assault was motivated by robbery was insufficient to overcome the statutory presumption that the dispute was work-related (see, Matter of Daly v Opportunities for Broome, 39 NY2d 862).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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


text:
    Joan C. Lipin, Appellant, v Robert M. Bender, Jr., et al., Respondents.
    Submitted September 12, 1994;
    decided September 27, 1994
   Motion to substitute the judgment of Supreme Court entered August 31, 1994 as the appealable paper herein denied. Judge Ciparick taking no part.


text:
    Park Lexington Co., Inc., Respondent, v Andre Hyman, Respondent, and Amos Lior, Appellant.
    Submitted July 18, 1994;
    decided September 27, 1994
   Motion for reargument of motion for leave to appeal dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 83 NY2d 907.] Cross motion by respondent Park Lexington Co. denied.


text:
    The People of the State of New York, Respondent, v Hilario Rosario, Appellant. The People of the State of New York, Respondent, v Jose Lopez, Appellant.
    Submitted August 1, 1994;
    decided September 27, 1994
   Motion for clarification of the Court of Appeals July 7, 1994 memorandum denied. [See, 83 NY2d 994.]


text:
    Laurence Sovik, Individually and Doing Business as 300 Salina Co., Appellant, v Dawn M. Hogan et al., Respondents.
    Submitted September 6, 1994;
    decided September 27, 1994
   Motion for reargument of motion for leave to appeal dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 83 NY2d 993.]


text:
    [642 NE2d 321, 618 NYS2d 3]
    Nathan Silberberg Galleries, Ltd., Appellant, v Holmes Protection of New York, Inc., Respondent.
    Decided September 29, 1994

      APPEARANCES OF COUNSEL

      Jafiin, Conrad & Finkelstein, New York City (Martin L. Conrad and Herbert L. Finkelstein of counsel), for appellant.

      Conway, Farrell, Curtin & Kelly, P. C, New York City (Jonathan T. Uejio of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, and certified question answered in the affirmative (see, Gutter Furs v Jewelers Protection Servs., 79 NY2d 1027; Sommer v Federal Signal Corp., 79 NY2d 540, 554).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    Bromwell Ault, Respondent, v John D. Soutter et al., Appellants, et al., Defendant.
    Submitted June 20, 1994;
    decided September 29, 1994
   Motion, treated as a motion for reargument, dismissed as untimely (22 NYCRR 500.11 [g] [3]; see, 81 NY2d 1007).

Judge Smith taking no part.


text:
    In the Matter of the Claim of Sandra L. DeVita, Appellant. John F. Hudacs, as Commissioner of Labor, Respondent.
    Submitted July 11, 1994;
    decided September 29, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief, etc., dismissed as academic.


text:
    In the Matter of Government Employees Insurance Company, Respondent, v Betty L. Hehl, Appellant. In the Matter of Betty L. Hehl, Appellant, v Government Employees Insurance Company, Respondent.
    Submitted July 18, 1994;
    decided September 29, 1994
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]; 2103 [b] [2]).


text:
    In the Matter of Malka Helbrans et al., Appellants, v Thaddeus E. Owens, as Justice of the Supreme Court, Kings County, et al., Respondents.
    Submitted August 29, 1994;
    decided September 29, 1994
   Motion by respondents to dismiss petitioners-appellants’ appeal herein granted and the appeal dismissed, with $400 costs and $100 costs of motion upon the ground that no substantial constitutional question is directly involved. Motion by petitioners-appellants for leave to appeal denied. Motion by petitioners-appellants for a stay dismissed as academic.


text:
    In the Matter of Larry Holmes, Appellant, v Thomas M. Coughlin, as Commissioner of the Department of Correctional Services, et al., Respondents.
    Submitted August 22, 1994;
    decided September 29, 1994
   Motion for leave to appeal dismissed upon the ground that the proceeding and the motion have abated because of the death of the petitioner.


text:
    In the Matter of National Union Fire Insurance Company of Pittsburgh, Pa., Respondent, v Eland Motor Car Company, Inc., et al., Appellants.
    Submitted June 27, 1994;
    decided September 29, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order entered October 31, 1990, granted; motion otherwise dismissed upon the ground that the remaining part of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v William Letterlough, Respondent.
    Submitted August 8, 1994;
    decided September 29, 1994
   Motion to dismiss the appeal herein granted, and the appeal dismissed upon the ground that the modification 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 * * * modification” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Respondent, v Richard E. Sloan, Also Known as Richard E. Sloane, Appellant.
    Submitted September 19, 1994;
    decided September 29, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order entered in this criminal proceeding.


text:
    In the Matter of Doris L. Sassower, Appellant, v Guy J. Mangano, as Presiding Justice of the Appellate Division of the Supreme Court, Second Department, et al., Respondents.
    Submitted August 1, 1994;
    decided September 29, 1994
   Motion for reconsideration of the Court of Appeals May 12, 1994 order of dismissal denied. [See, 83 NY2d 904.] Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied petitioner’s cross motion, dismissed upon the ground that that part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal, etc., otherwise denied.

Judges Levine and Ciparick taking no part.


text:
    In the Matter of John A. Steel, Appellant, v Stanley Parness, as Justice of the Supreme Court, New York County, et al., Respondents. In the Matter of John A. Steel, Appellant, v Eve M. Preminger, as Surrogate Court Judge, New York County, Respondent.
    Submitted June 27, 1994;
    decided September 29, 1994
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied petitioner’s motion for leave to appeal to the Appellate Division from an order of Surrogate’s Court, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    [644 NE2d 1338, 620 NYS2d 782]
    The People of the State of New York, Respondent, v Benjamin Cray, Appellant.
    Argued September 19, 1994;
    decided October 20, 1994

      APPEARANCES OF COUNSEL

      George W. Albro, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Donna Krone and Robert M. Raciti of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Between November 1986 and July 1988, defendant and his wife, who operated a residence for the elderly in their home, stole the life savings of five elderly residents and were charged with multiple counts arising out of the thefts. The People moved pursuant to CPL article 660 for permission to take conditional examinations of three of the elderly victims due to their advanced age and ill health. The court granted the motion and the conditional examinations of two victims were videotaped on April 14 and October 5, 1989. The third was not examined, as he was physically unable to testify on the date of the examination.

When the People sought to introduce the two videotaped examinations at trial, defendant moved for preclusion on the ground that the People had not complied with the certification and filing requirements of CPL 660.60 (2) (see also, 22 NYCRR 32.3 [c]). Permitting the People to satisfy those requirements on January 3, 1990, the first day of trial, the court admitted the videotapes over defendant’s objection. Defendant thereafter stipulated to the accuracy of the videotapes as offered. Defendant was convicted, and the Appellate Division affirmed.

CPL 660.60 (2) requires that the videotape and stenographic transcript of a conditional examination be certified and filed with the court "[u]pan conclusion of the examination.” We reject the People’s contention that CPL 660.60 (2) is satisfied by certification and filing at any time, which construction renders meaningless the plain statutory direction. Indeed, the former Code of Criminal Procedure directed certification and filing "without unnecessary delay” after conclusion of the conditional examination (former Code Crim Pro § 630), a requirement made even more specific in CPL 660.60 (2). Moreover, security and integrity of the record appear to be the primary objective of the certification and filing requirement (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 660.60, at 330). Requiring certification and filing of the videotape and transcript as soon as practicable after an examination is completed furthers that objective (see, 22 NYCRR 32.5).

Having failed to satisfy the statutory requirements until the commencement of trial, months after completion of the examinations, the People must demonstrate the integrity of the record as a precondition to admissibility. In the case before us, however, defendant’s stipulation to the accuracy of the videotapes satisfied that obligation, and preclusion was properly denied.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.

       Defendant’s wife, who was charged under the same indictment and tried with defendant, is not a party to this appeal.


text:
    [644 NE2d 1340, 620 NYS2d 784]
    In the Matter of RIHGA International U.S.A., Inc., Respondent, v New York State Liquor Authority, Appellant.
    Argued September 20, 1994;
    decided October 20, 1994

      APPEARANCES OF COUNSEL

      Adrian C. Hunte, New York City, and Scott A. Weiner for appellant.

      Graubard Mollen Horowitz Pomeranz & Shapiro, New York City (Kevin B. McGrath, Scott E. Mollen, Ellen M. Coin and John Greco of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner is the owner of the RIHGA Royal Hotel in New York City. Three unrelated manufacturers of alcohol products hold ownership interests in petitioner. Those separate interests, which are held indirectly, each aggregates less than 10% of the ownership of petitioner. In May of 1990 respondent denied petitioner’s application for a license to sell alcohol at the RIHGA Royal Hotel basing its denial, inter alla, on Alcoholic Beverage Control Law § 101 (1) (a).

Petitioner commenced this proceeding pursuant to CPLR article 78 to challenge that ruling. Supreme Court found that the manufacturers’ ownership interests in petitioner were de minimis, and that respondent’s denial of the application was arbitrary and capricious because respondent ignores de minimis interests when applying other provisions of the Alcoholic Beverage Control Law. Supreme Court remitted the matter to respondent with instruction to reconsider petitioner’s application. Respondent appealed and the Appellate Division affirmed, agreeing with Supreme Court that the determination was arbitrary because the interests were de minimis and concluding that respondent’s continued denial of petitioner’s application for a license failed to fulfill any statutory objective.

Alcoholic Beverage Control Law § 101 (1) (a) states that "[i]t shall be unlawful for a manufacturer or wholesaler licensed under this chapter to * * * [b]e interested directly or indirectly in any premises where any alcoholic beverage is sold at retail * * * by stock ownership, interlocking directors, mortgage or lien or any personal or real property, or by any other means.” On its face, this statute forecloses issuance of a license to petitioner.

Petitioner correctly observes that the statutory purpose underlying Alcoholic Beverage Control Law § 101 (1) (a), which was originally enacted in 1933, is the prevention of monopolies and other undesirable influences within the alcoholic beverage industry. It contends that this statutory purpose is not served by denying its application, because petitioner has agreed to refrain from purchasing the products of the stock-holding manufacturers, and because the interests of those stockholders are insignificant in size. The logic of petitioner’s argument notwithstanding, Alcoholic Beverage Control Law § 101 (1) (a) does not grant respondent any discretion when such ownership interests exist.

To the extent that petitioner challenges the vitality of the statute because of its age, it is noteworthy that the statute was amended in 1988 and 1989 to redefine those geographic areas that are expressly exempt from the statutory prohibition (see, L 1988, ch 209; L 1989, ch 100). Thus, any argument that section 101 (1) (a) has merely escaped the attention of the Legislature is without merit. Moreover, even if the statute was adopted some years ago, it is for the Legislature, not respondent or the courts, to update its provisions and restrictions.

Nor does respondent have the discretion to issue a license prohibited by Alcoholic Beverage Control Law § 101 (1) (a) when an applicant shows that the impermissible interest is de minimis. Petitioner cites several cases involving situations in which respondent has overlooked de minimis interests. Those cases, however, involved statutes in which the Legislature granted respondent discretion. For example, respondent is to determine which gifts flowing from a manufacturer to a licensee "may tend to influence such licensee to purchase the product of such manufacturer” (Alcoholic Beverage Control Law § 101 [1] [c]; see, 9 NYCRR part 86; see also, Matter of Schenley Indus. v State Liq. Auth., 25 AD2d 285). Similarly, petitioner has cited regulations that provide exceptions for persons holding interests of less than 10% (see, 9 NYCRR 49.5 [b]; 53.1). Those regulations were promulgated pursuant to statutory provisions that implicitly grant respondent the authority to exercise discretion (see, Alcoholic Beverage Control Law § 64-b [3]; § 118).

In contrast to petitioner’s examples, where there was a statutory grant of discretion and judicial review was therefore limited, the clear language of Alcoholic Beverage Control Law § 101 (1) (a) does not allow respondent to make exceptions for de minimis interests under any circumstances.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


text:
    [644 NE2d 1342, 620 NYS2d 786]
    The People of the State of New York, Respondent, v Antonio Tevaha, Appellant.
    Decided October 20, 1994

      APPEARANCES OF COUNSEL

      Laura Burde, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Daniel A. Lowenthal, III, and Joseph J. Dawson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant’s sole claim of error — that he was denied a fair

trial when the court permitted testimony by the arresting officer regarding the general practices of drug sellers — has not been preserved for our review. Defense counsel simply made a general objection when the testimony was proffered, and failed to advise the trial court that the present claimed error was the basis for his objection. The word "objection” alone was insufficient to preserve the issue for our review (see, People v Fleming, 70 NY2d 947, 948; People v West, 56 NY2d 662, 663).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick 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:
    Theresa A. Clark, Appellant, v Howard Johnson’s Ontario Service Center (Marriott Corporation), Respondent.
    Submitted July 11, 1994;
    decided October 20, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which dismissed plaintiff’s appeal from the order of Supreme Court entered August 31, 1993 denying plaintiff’s motion to set aside the verdict, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order which, upon defendant’s appeal to that Court, affirmed Supreme Court’s judgment entered October 1, 1993, dismissed upon the ground that movant is not a party aggrieved (see, CPLR 5511).


text:
    In the Matter of Raymond Corbett et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v New York State Thruway Authority et al., Respondents.
    Submitted August 1, 1994;
    decided October 20, 1994
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Green Point Savings Bank, Appellant, v Dan’s Supreme Supermarket, Inc., Defendant, and Lawyers Title Insurance Corp., Respondent.
    Submitted July 11, 1994;
    decided October 20, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying plaintiff’s motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    [644 NE2d 1343, 620 NYS2d 787]
    In the Matter of Alfred Koch, Respondent, v State of New York Division of Housing and Community Renewal Office of Rent Administration, Appellant.
    Argued September 20, 1994;
    decided October 25, 1994

      APPEARANCES OF COUNSEL

      Martin B. Schneider, Bronx, and Dennis J. Saffran for appellant.

      Mulhem & Klein, Wantagh (Jeff Klein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

Petitioner is the owner of rental property subject to the Emergency Tenant Protection Act (ETPA) (L 1974, ch 576, § 4), which is administered by respondent Division of Housing and Community Renewal (DHCR). After a formal tenant complaint, a DHCR District Rent Administrator on January 23, 1987 ordered petitioner to make seven repairs within 30 days and directed a rent reduction pursuant to the Emergency Tenant Protection Regulations (9 NYCRR 2503.4) until compliance was demonstrated, warning that failure to comply could result in "additional penalties.”

In early 1989, the tenants filed an affidavit of noncompliance, prompting an inspection. Petitioner claimed the violations had been corrected, but by letter dated November 13, 1989, DHCR advised him that this was not the case. Petitioner was notified of a noncompliance hearing to be held November 17, 1989, and that he could be subject to a civil penalty of "at least $250.00” for "each offense.”

Following the hearing, DHCR’s Rent Commissioner found petitioner had made some, but not all, of the repairs mandated by the 1987 order and imposed a penalty of $3,000— $1,000 for violating the order to make four repairs (at $250 for each violation) and $2,000 for the additional two years during which the conditions continued. The order warned that "any further violation of the orders or any part thereof shall result in a civil penalty of $1,000.00 for each such violation,” and that "each day each violation continues may constitute a separate violation.”

Petitioner commenced this CPLR article 78 proceeding seeking annulment of the agency’s determination or reduction of the penalty. The Appellate Division reduced the fine to $1,000, ruling that DHCR could not impose more than a $250 fine for each of the four violations of the order. DHCR appealed to this Court, contending that it was within the agency’s authority to impose the cumulative fines. We agree with the Appellate Division that passage of time alone did not operate to create a new offense supporting the cumulative fines.

ETPA § 12 (a) (3) (i) (McKinney’s Uncons Laws of NY § 8632 [a] [3] [i]), pursuant to which DHCR imposed the penalty on petitioner, states that if an owner is found by the Commissioner

"to have violated an order of the division the commissioner may impose by administrative order after hearing, a civil penalty in the amount of two hundred and fifty dollars for the first such offense and one thousand dollars for each subsequent offense.” (See also, 9 NYCRR 2506.2 [c] [i].)

Under the plain language of the statute on which DHCR based its order, an "offense” arises only upon a determination after a hearing that an agency order has been violated. A first offense subjects the owner to a civil penalty of $250, while "each subsequent offense” may result in a fine of $1,000. DHCR’s imposition of a $3,000 penalty instead of a $1,000 penalty (for four violations of the order, at $250 per violation) therefore contravened the statute, which the agency is without authority to do.

Statutes authorizing escalating penalties are created not to generate income but to compel prompt performance of a duty. The conduct of DHCR in this case failed to further that purpose. While ordering petitioner to make repairs within 30 days of the initial order, DHCR failed for nearly three years to schedule the hearing required by statute before the first offense could be found and additional penalties thereafter sought. Only by adhering to the statutory procedure could DHCR seek additional penalties for petitioner’s continuing failure to make the repairs.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order, insofar as appealed from, affirmed, with costs, in a memorandum.


text:
    [644 NE2d 1344, 620 NYS2d 788]
    Philip R. Bartoo, Appellant, v Robert O. Buell, Respondent. Dennis E. Pangburn, Appellant, v Robert O. Buell, Respondent. Allen Skiver, Jr., et al., Appellants, v Robert O. Buell, Defendant and Third-Party Plaintiff-Respondent. General Roofing & Heating Co., Inc., Third-Party Defendant-Respondent.
    Decided October 25, 1994

      APPEARANCES OF COUNSEL

      Embser & Woltag, P. C., Wellsville (G. William Gunner of counsel), for Philip R. Bartoo and another, appellants.

      Joseph C. Dwyer, Olean, for Allen Skiver, Jr., and another, appellants.

      Shane & Franz, Olean (J. Michael Shane of counsel), for Robert O. Buell, defendant and third-party plaintiff-respondent.

      Chamberlain D’Amanda Oppenheimer & Greenfield, Rochester (Henry R. Ippolito of counsel), for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The appeals taken by the Bartoo and Pangburn plaintiffs and by the Skiver plaintiffs, respectively, should each be dismissed upon the ground that the June 2, 1994 Supreme Court order appealed from pursuant to CPLR 5601 (d) in order to secure review of prior nonfinal Appellate Division orders, does not itself finally determine the actions within the meaning of the Constitution.

The June 2, 1994 Supreme Court order, being nonfinal, cannot serve to bring up for review, pursuant to CPLR 5601 (d), prior nonfinal Appellate Division orders (see, e.g., Bartoo v Buell, 198 AD2d 819, appeal dismissed 83 NY2d 800). With respect to plaintiffs Skivers’ appeal, the prior nonfinal Appellate Division order left pending plaintiffs’ separately pleaded claim based on Labor Law § 200. With respect to plaintiffs Bartoo’s and Pangburn’s appeal, the Appellate Division order left pending plaintiffs’ separately pleaded claims based on Labor Law §§ 200 and 240 (2). The subsequent Supreme Court order, entered upon the parties’ stipulation, discontinuing all common-law claims expressly reserved all Labor Law claims. Thus, procedurally, certain statutory claims appear to remain open and pending.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeals taken by the Bartoo and Pangburn plaintiffs and by the Skiver plaintiffs dismissed, with costs, in a memorandum.


text:
    [644 NE2d 1345, 620 NYS2d 789]
    The People of the State of New York, Respondent, v Kevin Brian, Also Known as Kevin Bryan, Appellant.
    Argued September 19, 1994;
    decided October 25, 1994

      APPEARANCES OF COUNSEL

      Susan J. Horowitz, New York City, and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Andrea G. Klineman and Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that the People’s entire case was based upon circumstantial evidence and that the trial court erred in declining the defense request for a circumstantial evidence charge. Defendant was not observed in actual physical possession of the drugs and weapons found in his apartment. Therefore, his criminal responsibility for the possessory crimes charged against him had to be based upon his "exercise [of] dominion or control over” the contraband (Penal Law § 10.00 [8]). Although there may have been direct evidence of defendant’s dominion and control over his apartment from defendant’s observed presence in the apartment and his admissions that he lived there, there was no direct evidence of his dominion or control over the drugs and weapons found in the apartment. The direct evidence of defendant’s dominion and control over the apartment, as well as the remaining incriminating evidence against him such as his flight from the premises, the gun which fell to the floor at the window through which he fled and the presence of his passport along with weapons in the locked safe in the closet of his apartment, all required the drawing of an additional inference to establish defendant’s dominion and control over the contraband and, thus, was circumstantial (cf., People v Daddona, 81 NY2d 990, 992).

The circumstantial evidence charge is a "material legal principle[ ]” required by CPL 300.10 (2) when the People’s evidence is entirely circumstantial. In this case, however, the evidence that defendant at least shared dominion and control over the weapons and drugs was overwhelming and there simply is no reasonable possibility, let alone significant probability that the jury would have acquitted here if the circumstantial evidence charge had been given (People v Crimmins, 36 NY2d 230, 242). Thus, we agree with the Appellate Division in concluding that, in light of the People’s proof, this represents the exceptional case where the failure to give the circumstantial evidence charge was harmless error (see, CPL 470.05 [1]). Contrary to defendant’s contention, the failure to so instruct did not deprive defendant of his right to a jury trial under the Federal and State Constitutions (US Const Sixth Amend; NY Const, art I, § 2). Under the circumstances presented in this case, the inference of defendant’s constructive possession of the contraband was the only reasonable inference.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    Clarence Eisen, Appellant, v Sackman-Gilliland Corporation, Respondent.
    Submitted August 1, 1994;
    decided October 25, 1994
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see, NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Claire L. Hoffman, Appellant, v Jerome Petrizzi et al., Respondents.
    Submitted August 8, 1994;
    decided October 25, 1994
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [bp.


text:
    Jacob M. Lehman et al., Appellants, v Shlomo Piontkowski, Respondent.
    Submitted August 1, 1994;
    decided October 25, 1994
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    Michael Tucciarone, as Subrogee of Helen Hawkins, et al., Appellants, v Progressive Insurance Company, Respondent, et al., Defendants.
    Submitted July 18, 1994;
    decided October 25, 1994
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    [644 NE2d 1347, 620 NYS2d 791]
    In the Matter of Sobeida Cruz, as Chairperson of the Charter Revision Commission of the City of Yonkers, et al., Appellants, v Joan C. Deierlein, as City Clerk of the City of Yonkers, et al., Respondents.
    Decided October 27, 1994

      APPEARANCES OF COUNSEL

      Sive, Paget & Riesel, P. C., New York City (Steven Barshov of counsel), for Sobeida Cruz and another, appellants.

      Hashmall, Sheer, Bank & Geist, White Plains (Jay B. Hash-mall of counsel), for Joan C. Deierlein, respondent.

      Christina Lomolino, Corporation Counsel of the City of Yonkers, for City of Yonkers, respondent.

      Robert Flower, Yonkers, and John M. Murtagh, Jr., for New York Renaissance, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the judgment and order of Supreme Court, Westchester County reinstated.

The Appellate Division concluded that the report of the Charter Revision Commission of the City of Yonkers failed to comply with the requirements of Municipal Home Rule Law §36 (5) (a). This conclusion is erroneous. The seven-page single-spaced report details the history of the Commission’s formation, giving a background and overview of the two Charter amendment propositions that the Commission ultimately adopted — including a discussion of its review of the proposed Local Laws considered by the City Council on the issues involved. The report also specifically states that the Charter Revision Commission examined the balance of the Charter, discussed other amendments to the Charter, including changing the years in the term of City Council Member and City Council President, staggering Council Members’ terms, changing the City Council President to a Vice Mayor and other changes to the form and organization of City government. The report concludes that the Commission proposed no changes to the balance of the Charter at the time because those portions of the Charter required "significant further study”. Rather than propose a new Charter, therefore, the Commission proposed only two amendments to the existing Charter (see generally, Municipal Home Rule Law § 36 [5] [b]). The report satisfied the requirements of Municipal Home Rule Law § 36 (5) (a). In light of this conclusion, we need not reach petitioners’ additional argument concerning the scope of the City Clerk’s power to substantively review the report of Charter Revision Commission upon its filing.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick 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:
    [644 NE2d 1348, 620 NYS2d 792]
    Anne-Renee Testa et al., Appellants, v John Ravitz et al., Respondents. New York County Committee of the Liberal Party, Intervenor-Respondent.
    Decided October 27, 1994

      APPEARANCES OF COUNSEL

      Tanner Propp & Farber, New York City (Lester J. Tanner, Stanley Futterman and Scott A. Mautner of counsel), for appellants.

      Gentile & Ciampoli, Garden City (John Ciampoli of counsel), for John J. Ravitz and another, respondents.

      Herzfeld & Rubin, New York City (Erie B. Bettelheim of counsel), for Raymond B. Harding and others, respondents and for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court, New York County, with directions to remand to respondent Board of Elections in the City of New York for further proceedings in accordance with this memorandum.

At a primary election held on September 13, 1994, petitioner Anne-Renee Testa and respondent John Ravitz were the two candidates for the nomination of the Liberal Party candidate for Member of Assembly from the 73rd Assembly District. Testa was a write-in candidate, and Ravitz had been designated by the Liberal Party.

Following the primary, petitioners commenced this proceeding under article 16 of the Election Law seeking a judicial determination of the winner or, in the alternative, an order directing the holding of a new primary pursuant to Election Law § 16-102 (3). The proceeding was adjourned pending the filing of the tabulated statements by the Board of Elections setting forth the results of the voting. Ultimately, Supreme Court was advised that the Board of Elections had not signed the required statements and that, because its members were unable to agree, no majority decision would be available. That court was further advised that the Board of Elections’ vote was 4 to 4, with two members not present. The issue is whether a vacancy in a nomination is created within the meaning of Election Law § 6-148, where such “vacancy” results from the failure of the Board of Elections to fulfill its statutory duty under Election Law § 9-200 (1) to canvass the primary ballots and file tabulated statements setting forth the voting results. We conclude that no vacancy is created.

Under Election Law § 6-148, a valid nomination is a prerequisite to the creation of a vacancy (see, Matter of Di Lorenzo v Heffernan, 187 Misc 766, affd 271 App Div 802, affd 296 NY 687). Here, as a result of the Board of Elections’ failure to act, no valid nomination has been made in accordance with the provisions of the Election Law. Thus, no vacancy has been created within the meaning of Election Law § 6-148.

We also note that Supreme Court correctly concluded that it lacks jurisdiction to conduct its own canvass of the ballots and determine a winner before the Board of Elections has conducted its canvass (Matter of Larsen v Canary, 107 AD2d 809, affd for the reasons stated below 65 NY2d 634). The Board of Elections has a statutory duty to canvass the ballots and file tabulated statements of the voting results (Election Law § 9-200 [1]), and such duty cannot be abdicated (Larsen, supra, at 811).

Moreover, the failure of the Board of Elections to fulfill its statutory duty does not warrant an order directing the holding of a new primary election. Election Law § 16-102 (3) authorizes the court to direct the holding of a new primary “where it finds there has been such fraud or irregularity as to render impossible a determination as to who rightfully was nominated” (id.). Because Supreme Court lacks jurisdiction to examine the ballots and conduct its own canvass prior to the Board of Elections conducting its canvass, that court similarly lacks jurisdiction to conduct such an examination for the purpose of ascertaining whether it is impossible to determine who was rightfully nominated. The proceeding is premature in either case. Pursuant to Election Law § 16-106 (4), Supreme Court should remand the matter to the Board of Elections, and direct it to perform its statutory duty to canvass the ballots and file the requisite tabulated statements.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick 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.


author: Titone, J.

text:
    [644 NE2d 1350, 620 NYS2d 794]
    Luis D. Lazo, Appellant, v Mak’s Trading Company, Inc., Respondent.
    Argued September 19, 1994;
    decided October 27, 1994
    APPEARANCES OF COUNSEL

      Jack Baum, Brooklyn, for appellant.

      Smith & Laquercia, P. C, New York City (Thomas Michael Laquercia and Vanessa M. Corchia of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, the operator of a tractor trailer, delivered a shipment of rice to defendant, a wholesale and retail grocer in New York City. Defendant grocer engaged three neighborhood men to help unload the trailer. During the unloading, one of the three individuals got into an altercation with plaintiff, resulting in personal injuries.

The alleged tortfeasor came and went as he and his companion pleased, worked at their own convenience, were free to hold other employment, were never placed on defendant’s payroll, received no fringe benefits, and had no taxes withheld from the flat rate, single payment for all three. Defendant paid $80 in cash to one of the three workers and left it up to them to divide the payment. While they had performed other unloading tasks for defendant previously, they did so on a random, on-inquiry-for-work basis. In the circumstances of this case, defendant did not exercise actual or constructive control over the performance and manner in which the work of these unloaders was performed. We agree with the Appellate Division that this record does not support the existence of any question of fact that could lead to the conclusion that defendant supervised these day laborers’ activities for vicarious liability purposes. Also, in the circumstances of this case, there is no duty to conduct background inquiries in the selection of individuals for this as-needed task.

Titone, J.

(concurring). I agree with the Court’s holding that defendant cannot be held liable, vicariously or otherwise, for the injuries plaintiff sustained when he was assaulted by a worker whom defendant had engaged. I part company with the majority, however, in its analysis of both the facts and the applicable legal principles. Accordingly, I write separately to explain the basis of my vote to affirm.

Initially, I note my disagreement with the conclusion, critical to the majority’s rationale, that defendant did not exercise any actual or constructive control over "the performance and manner in which the work of these unloaders was performed.” The "unloaders” were individuals who frequented the neighborhood looking for odd jobs. They had no special expertise and no special relationship to defendant’s business such as would empower them to make the necessary decisions as to how the unloading work was to be performed. The sole function of these itinerant workers was to remove the sacks of rice they were told to remove from plaintiffs truck and to place those sacks where defendant’s owner-manager wanted them placed. Indeed, defendant’s owner-manager testified during his deposition that he told the apparent leader of the three workers where the men were to place the sacks of rice each time they unloaded the truck. Moreover, it is apparent from the agreed-upon facts that the men did not have the authority to choose when or where to perform the unloading.

It is at best implausible to suggest under these circumstances that as a matter of law it was the workers, rather than defendant, who were in control of the conduct of the work (see, majority mem, at 897). As the comments to the Restatement (Second) of Agency indicate, ”[u]nskilled labor is usually performed by those customarily regarded as servants, and a laborer is almost always a servant in spite of the fact that he may nominally contract to do a specified job for a specified price” (§ 220 [2] [d], comment i [emphasis supplied]). Further, where, as here, the workers have neither control over the results produced nor the means used to achieve the results, they could readily be found not to be in control of the work (see, Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726; Matter of 12 Cornelia St. [Ross] 56 NY2d 895, 897; Matter of Sullivan Co. [Miller] 289 NY 110, 112). Accordingly, in my view, it is unreasonable to hold, as the majority has, that there was not even a fair question of fact as to the status of the itinerant workers.

More importantly, it is not necessary in this case to grapple with the question of who had control over the work, since the answer to that question has no legal significance in the context of the present dispute. The control question is relevant to resolving whether the three itinerant workers were "independent contractors” or were instead "employees” of defendant (see, e.g., Matter of Ted Is Back Corp. [Roberts] supra). However, in this case involving an assault, it is not important whether the workers were "employees” or "independent contractors,” since, regardless of the status of the three men, there is no legal basis for holding defendant vicariously liable for the assault.

Although an employer is often held liable for the torts of employees (see, Cornell v State of New York, 46 NY2d 1032), an employer cannot be held liable for an employee’s assaultive acts where the tortious conduct was not undertaken within the scope of employment, the employer did not authorize the violence and the use of force is not within the discretionary authority afforded the employee (e.g., Sauter v New York Tribune, 305 NY 442; Braceo v Arro Sportswear Co., 3 NY2d 726; Gibilaro v Lomax Trading Corp., 22 AD2d 703, affd 16 NY2d 898; Oneta v Toed Co., 271 App Div 681, affd 297 NY 629; see, Sims v Bergamo, 3 NY2d 531; see generally, Restatement [Second] of Agency §§235, 245; Prosser and Keeton, Torts § 70, at 505-507 [5th ed]). In fact, it is elementary that "if a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible” (Mott v Consumers’ Ice Co., 73 NY 543, 547).

Almost directly on point is Oneta v Toed Co. (supra), which has twice been cited by this Court with approval (Sims v Bergamo, supra, at 536-537; Sauter v New York Tribune, supra, at 445). In Oneta, an employee of a waste-paper collection service assaulted a building’s porter during an altercation over the location of a hand truck. This Court affirmed a ruling denying the injured porter recovery from the waste-paper collection concern. The Court subsequently explained the Oneta holding by stressing that although the precipitating dispute concerned a tool related to the tortfeasor-employee’s job duties, "there was no basis for an inference that the assault was in furtherance of the employer’s interests” (Sims v Bergamo, supra, at 537).

Here, as in Oneta, the assault occurred while the tortfeasorworker was engaged in the employer’s business, but there was no connection between the assault and the tortfeasor’s duties as a day laborer. The assault was not undertaken in furtherance of defendant’s business, nor was the use of force implicit in the tortfeasor’s duties (cf., Sims v Bergamo, supra; De Wald v Seidenberg, 297 NY 335, 338). Finally, there was no claim that the assault was authorized, instigated or condoned by defendant’s manager. Thus, even if we were to assume that the assaultive worker was an employee of defendant, defendant could not be held vicariously liable for the worker’s wrongful act.

Based on the foregoing, I would hold that the Court below properly granted defendant’s motion for summary judgment dismissing the complaint. Inasmuch as plaintiff could not benefit from a finding that the tortfeasor was an "employee” of defendant, I find no need to explore the status of degree or control over the work that these itinerants had, nor do I perceive a reason to enmesh the Court in the essentially factual question of a particular hiree’s status (see, e.g., Matter of Field Delivery Serv. [Roberts], 66 NY2d 516, 521; Matter of Concourse Ophthalmology Assocs. [Roberts] 60 NY2d 734; Matter of Di Martino [Buffalo Courier Express Co. — Ross] 59 NY2d 638). Accordingly, my vote is to affirm for the simple reason that regardless of defendant’s control over the unloading work, it was not liable for the worker’s entirely separate assaultive conduct.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith and Ciparick concur; Judge Titone concurs in result in an opinion in which Judge Levine concurs.

Order affirmed, with costs, in a memorandum.

       I have no quarrel with the majority’s conclusion that there was no basis for holding defendant liable for its own alleged negligence in failing adequately to screen its laborers or in failing to intervene at an earlier point, when plaintiff complained about the assaultive worker’s verbal abuse.


text:
    [645 NE2d 1204, 621 NYS2d 505]
    In the Matter of Patrick T. Morphy, Appellant-Respondent, v Thomas Wade et al., Constituting the Rensselaer County Board of Elections, Respondents, and Henry R. Bauer, Respondent-Appellant.
    Decided October 27, 1994

      APPEARANCES OF COUNSEL

      Pattison, Sampson, Ginsberg & Griffin, P. C., Troy (Terence E. Shanley of counsel), for appellant-respondent.

      David L. Gruenberg, Troy, for respondent-appellant.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for reasons stated in the memorandum of the Appellate Division (208 AD2d 1039).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    Emmett W. Caldwell, Appellant, v Consolidated Edison Co. of New York, Respondent and Third-Party Plaintiff. Interboro Asphalt Paving Co. et al., Third-Party Defendants-Respondents.
    Submitted August 22, 1994;
    decided October 27, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for reargument of motion for leave to appeal denied. [See, 83 NY2d 953.]


text:
    Jack P. Chanler, Appellant, v Bob Roberts et al., Respondents. (And Another Action.)
    Submitted August 15, 1994;
    decided October 27, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Arthur R. Melius et al., Appellants, v Robert J. Pletman et al., Defendants, and Ellis Hospital, Respondent.
    Submitted August 8, 1994;
    decided October 27, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying plaintiffs’ motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Levine taking no part.


text:
    In the Matter of Ingrid Simone-Smith, Petitioner, v Eugene P. Edwinn et al., Respondents. Julian Kaplan, Nonparty Appellant; Leon D. Schneider, as Guardian ad Litem, Nonparty Respondent.
    Submitted July 18, 1994;
    decided October 27, 1994
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s denial of petitioner Simone-Smith’s cross motion for sanctions, dismissed upon the ground that as to that portion of the Appellate Division order movant is not a party aggrieved (see, CPLR 5511); motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York ex rel. Jay Solow, on Behalf of Jeffrey Grune, Appellant, v Norwood Jackson, Respondent.
    Submitted September 6, 1994;
    decided October 27, 1994
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order from which leave is sought has been vacated and the appeal to the Appellate Division reinstated.


text:
    In the Matter of Lillian Seril et al., Respondents-Appellants, v New York State Division of Housing and Community Renewal, Appellant-Respondent. Belnord Tenants Association et al., Intervenors-Appellants.
    Submitted July 25, 1994;
    decided October 27, 1994
   Motions by appellant-respondent New York State Division of Housing and Community Renewal and by intervenors-appellants for leave to appeal granted. Motion by respondents-appellants Seril et al. for leave to appeal denied.

Judge Levine taking no part.


text:
    In the Matter of Shaida W. and Others, Children Alleged to be Neglected. Frances W., Respondent. Commissioner of Social Services of the City of New York, Respondent-Appellant; Lenore Gittis, as Law Guardian, Appellant-Respondent.
    Submitted September 6, 1994;
    decided October 27, 1994
    Submitted September 26, 1994;
    decided October 27, 1994
   Motion for leave to appeal by appellant-respondent Law Guardian granted. Motion for leave to appeal by respondent-appellant Commissioner dismissed upon the ground that it does not lie (see, Koch v Consolidated Edison Co., 62 NY2d 548, 562, n 10). Motions for a stay granted to the extent of staying the Appellate Division order without prejudice to movant seeking other relief before an appropriate court of original jurisdiction (see, Family Ct Act § 1055 [b] [v]).


text:
    David R. White, Appellant, v Robert Long, Respondent.
    Submitted July 18, 1994;
    decided October 27, 1994
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied plaintiffs motion to amend his complaint to assert a cause of action for breach of contract, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    [644 NE2d 1362, 620 NYS2d 806]
    The People of the State of New York, Respondent, v Sevil Aksoy, Appellant. The People of the State of New York, Respondent, v Lester Janoff, Appellant.
    Argued September 22, 1994;
    decided November 1, 1994

      APPEARANCES OF COUNSEL

      Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City (Patricia M. Graham and James B. Blaney of counsel), for Sevil Aksoy, appellant.

      Newman & Schwartz, New York City (Andrew J. Frisch and Gustave H. Newman of counsel), for Lester Janoff, appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Paul Harnisch and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be affirmed.

Defendant Janoff, an attorney, seeks to overturn his convictions for insurance fraud and attempted petit larceny, and codefendant Aksoy seeks to overturn her convictions for the same crimes as well as for scheme to defraud in connection with defendant JanofFs filing of over 15 fraudulent personal injury claims on behalf of Aksoy and her infant son against various insurers over a 10-year period. The record is replete with evidence that Janoff repeatedly represented Aksoy and her son while they denied under oath ever having suffered prior injuries, that Janoff had actually represented the Aksoys in earlier litigations against different defendants in which the very same injuries were claimed and that he joined in the clients’ affirmative misrepresentations by failing to accurately comply with a discovery stipulation in which prior like injuries would have been revealed. Accordingly, the proof was sufficient to support the jury verdict that defendant Janoff had actual knowledge that the lawsuits he commenced on defendant Aksoy’s behalf were fraudulent (see, People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932).

The unobjected-to language used in the court’s initial instructions on intent adequately conveyed to the jury that to be found guilty of insurance fraud, defendant Janoff must have had actual knowledge of his client’s fraud and must have shared that criminal intent. Defendant Janoff was not entitled to an initial instruction on intent in language crafted by defense counsel and was not prejudiced by the court’s decision to give the requested instruction to the jurors after they requested a clarification during deliberations (see, People v Radcliffe, 232 NY 249, 254).

The indictment properly included one count of insurance fraud for each of the allegedly fraudulent personal injury claims filed by defendants against each insurer. The rule against duplicitous pleadings (see, CPL 200.20 [1]; 200.30) does not require a separate count for each component document submitted in support of the same fraudulent insurance matter where, as here, the "all-or-nothing” theory of the prosecution was that the commencement of each personal injury lawsuit or claim and not the filing of individual documents constituted the criminal offense.

Under Penal Law § 176.05, the crime of insurance fraud is committed upon the filing of a false "written statement as part of, or in support of, * * * a [fraudulent insurance] claim for payment” (emphasis added; see also, People v Alfaro, 108 AD2d 517, 520, affd 66 NY2d 985). A written statement within the meaning of the statute may consist of one materially false or misleading document or multiple documents collectively submitted to the insurer to advance a single fraudulent claim (see, Penal Law § 176.00 [2]).

The criminal act which constitutes the offense jointly encompasses the filing of documents and the making of a false claim for payment. Thus, the submission of each document was not a repeated instance of a particular offense that was required to be contained in a single count (cf., People v Keindl, 68 NY2d 410). Rather, the submissions were multiple overt acts done in furtherance of the commission of a single crime, the essence of which is the filing of a false claim for payment (see, People v Ferone, 136 AD2d 282, 286 [procurement of personal insurance policy, in absence of subsequent claim for payment under policy, not a fraudulent insurance act under Penal Law § 176.05]). In other words, the series of acts done in furtherance of filing the false claim could not be divorced from the ultimate act of making the claim for payment for purposes of separate prosecution. Indeed, that higher degrees of the crime of insurance fraud are correlated with a specific value of property wrongfully secured indicates a legislative intent to equate the criminal act with the filing of the entire claim and not with the filing of each individual statement (see, Penal Law §§ 176.15, 176.20, 176.25, 176.30).

The defendants’ remaining contentions lack merit.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

In each case: Order affirmed in a memorandum.


text:
    [644 NE2d 1364, 620 NYS2d 808]
    The People of the State of New York, Respondent, v Edward J. McKiernan, Appellant.
    Argued September 22, 1994;
    decided November 1, 1994

      APPEARANCES OF COUNSEL

      Brian P. Schechter, Hempstead, Kent V. Moston and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney of Nassau County, Mineóla (Mary Louise Biunno and Peter A. Weinstein of counsel), for respondent.

      Jonathan E. Gradess, Albany, and Stacy Wolf for New York State Defenders Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Following a bench trial, defendant was convicted of driving without insurance, failing to display rear lamps and driving while intoxicated (Vehicle and Traffic Law § 319 [1]; § 375 [2] [a] [3]; § 1192 [2]). The record indicates that on July 20, 1990 at his arraignment on the charges, defendant agreed to be represented by Legal Aid. At a subsequent appearance on August 20, 1990 defendant disputed an assertion by the court that defendant had failed to provide verification to the unit which determined his eligibility to receive representation without charge. He also indicated that he wanted to represent himself. At the time of the trial in May 1991, defendant indicated that he would engage a lawyer if he could afford one. Under these circumstances the court had an obligation to inquire further into defendant’s eligibility for and desire for the appointment of counsel. The court did not make a sufficient inquiry into the defendant’s ability to engage a lawyer. The fact that the defendant expressed an intention to exercise his constitutional right to represent himself (see, Faretta v California, 422 US 806; and People v Davis, 49 NY2d 114) did not eliminate the court’s obligation.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


text:
    [644 NE2d 1365, 620 NYS2d 809]
    The People of the State of New York, Respondent, v Jerry Love, Appellant.
    Decided November 1, 1994

      APPEARANCES OF COUNSEL

      Miriam J. Hibel, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Sylvia Wertheimer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The courts below did not err in determining that the police officers’ entrance into the hotel room was the result of a reasonably perceived emergency excusing the warrant requirement and that, consequently, their observation and seizure of the contraband in plain view was lawful (see, People v Mitchell, 39 NY2d 173, 177-178, cert denied 426 US 953). The nature and specificity of the police radio transmissions, their close temporal proximity, the reputation of the hotel as a locale for drug and prostitution activity, and the hostile reception by Sonya Cook, a woman in the room when the police officers knocked on the door, all support the finding of reasonableness of the perception that there was an emergency. Further, there is an undisturbed factual finding, supported by the record, that the search was not primarily motivated by an intent to arrest and seize evidence, which finding is binding on this

Court (see, Mitchell, supra, at 178). Finally, there was a reasonable association between the emergency and the place to be searched that was not disputed by the parties and, indeed, the specificity of both police radio transmissions leaves no doubt as to this association.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick 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:
    Board of Education of the Sachem Central School District at Holbrook et al., Respondents, v Frank Jones, as Supervisor of the Town of Islip, et al., Appellants. Board of Education of the Bayport-Blue Point Union Free School District, Respondent, v Frank Jones, as Supervisor of the Town of Islip, et al., Appellants. Board of Education of the Happauge Union Free School District, Respondent, v Frank Jones, as Supervisor of the Town of Islip, et al., Appellants. Board of Education of the Connetquot Central School District et al., Respondents, v Frank Jones, as Supervisor of the Town of Islip, et al., Appellants. Board of Education of the Bay Shore Union Free School District et al., Respondents, v Frank Jones, as Supervisor of the Town of Islip, et al., Appellants.
    Submitted August 1, 1994;
    decided November 1, 1994
   On the Court’s own motion, appeals dismissed, without costs, each upon the ground that no substantial constitutional question is directly involved. Motions for leave to appeal denied.


text:
    In the Matter of Commonwealth of Massachusetts et al., Respondents, v New York State Board on Electric Generation Siting and the Environment, Respondent, and Inter-Power of New York, Inc., Appellant. In the Matter of Concerned Citizens for the Environment, Inc., Respondent, v New York State Board on Electric Generation Siting and the Environment, Respondent, and Inter-Power of New York, Inc., Intervenor-Appellant.
    Submitted August 15, 1994;
    decided November 1, 1994
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Loretta DeGrijze, Respondent, v Richard DeGrijze, Appellant.
    Submitted October 11, 1994;
    decided November 1, 1994
   Motion for reargument of motion for leave to appeal dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 82 NY2d 908.]


text:
    Tyron Deygoo, Respondent, v Eastern Abstract Corp., Appellant, et al., Defendant.
    Submitted September 19, 1994;
    decided November 1, 1994
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying defendant’s motion to vacate the judgment, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Craig Fialkowski, Respondent, v Paula M. Gilroy, Also Known as Paula M. Elliot, Appellant.
    Submitted August 1, 1994;
    decided November 1, 1994
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which dismissed movant’s appeal to that Court from so much of Family Court’s order as set a visitation schedule, dismissed upon the ground that as to that part of the order, movant is not a party aggrieved (see, CPLR 5511); motion for leave to appeal otherwise denied.


text:
    Daniel Long, Appellant, v City of Buffalo et al., Respondents.
    Submitted August 15, 1994;
    decided November 1, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Richard Allende, Appellant.
    Submitted October 24, 1994;
    decided November 1, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal action (see, NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v Sheldon Weaver, Appellant.
    Submitted October 17, 1994;
    decided November 1, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of County Court entered in this criminal action (see, NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    River Bank America, Respondent, v Janet Gatov, Appellant, and Imperial Savings Association et al., Respondents.
    Submitted August 22, 1994;
    decided November 1, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie (see, CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Carlos Roman, Respondent, v New York City Housing Authority et al., Appellants.
    Submitted August 1, 1994;
    decided November 1, 1994
   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 a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    In the Matter of Turin Housing Development Fund, Inc., Respondent, v Leonard Neff et al., Respondents, and Parkinson Pino, Appellant.
    Submitted October 24, 1994;
    decided November 1, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies (see, NY Const, art VI, § 3 [b]; CPLR 5601).

Judge Smith taking no part.


text:
    [644 NE2d 1366, 620 NYS2d 810]
    The People of the State of New York, Respondent, v Thomas C. Bowman, Appellant.
    Argued October 21, 1994;
    decided November 29, 1994

      APPEARANCES OF COUNSEL

      Joseph A. Fiorella, Buffalo, for appellant.

      John C. Grennell, Town Attorney of Town of Brant, Angola, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be affirmed.

In 1990, defendant was charged in 20 separate prosecutor’s informations with violations of General Municipal Law § 136 regulating conduct of junkyards. On April 27, 1992, while the matter was still pending, yet another information was served on defendant, alleging some of the same offenses charged in the previous informations. Defendant was, however, never arraigned on the succeeding instrument. After moving unsuccessfully for dismissal pursuant to CPL 100.50 of all but one of the instruments filed prior to April 27, 1992, defendant was convicted of 20 counts of violating the General Municipal Law.

CPL 100.50 (1) provides that upon the filing of a subsequent information, the first instrument is "superseded by the second and, upon the defendant’s arraignment upon the latter, the count of the first instrument charging such offense must be dismissed by the court.” Defendant contends that dismissal of all preceding instruments was required upon the filing of the April 1992 information, and that his conviction on the preceding informations was therefore a nullity. Because defendant was never arraigned on the succeeding information, however, no statutory obligation arose to dismiss the preceding instruments that charged the same offenses. Accordingly, defendant’s conviction upon the earlier informations was not jurisdictionally barred.

We have considered defendant’s remaining arguments and conclude them to be without merit.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    [644 NE2d 1367, 620 NYS2d 811]
    The People of the State of New York, Appellant, v Jamie Williams, Respondent.
    Argued October 26, 1994;
    decided November 29, 1994

      APPEARANCES OF COUNSEL

      James T. King, District Attorney of Jefferson County, Water-town (Cindy F. Intschert of counsel), for appellant.

      Michael F. Young, Lowville, and James R. McGraw, Syracuse, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to that court for consideration of the facts (see, CPL 470.25 [2] [d]; 470.40 [2] [b]) and issues raised by defendant but not considered on the appeal to that court.

The Appellate Division reversed defendant’s conviction on the law for insufficient evidence. However, it erroneously reviewed the evidence pursuant to a standard available only to a trier of fact: whether the circumstantial evidence excluded "to a moral certainty” every reasonable hypothesis of innocence. A court reviewing legal sufficiency of the trial evidence must instead determine whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People (People v Wong, 81 NY2d 600, 608; see also, People v Bleakley, 69 NY2d 490, 495). Applying this standard here, we conclude the evidence was sufficient to establish defendant’s guilt of manslaughter in the second degree.

Although the evidence established that on the day seven-week-old Jamila Mallette was fatally injured, her mother (Wynonna Mallette) and defendant, together, were alone with the infant, only defendant was charged with causing the child’s death (cf., People v Wong, 81 NY2d 600, supra). Viewed in the light most favorable to the People, the evidence was sufficient to establish that defendant, rather than Mallette, recklessly caused the child’s death. Medical testimony established that the cause of death was blunt force trauma to the abdomen, injury that was not accidental in nature, and there was evidence that infliction of that injury occurred in a time frame during which the infant was alone with defendant.

Defendant gave contradictory statements concerning his contact with the infant during that critical time span, and Mallette testified that she did not injure her child in any manner. When she left the infant alone with defendant, who was agitated following an argument with his mother, the baby was in good health. Upon her return, defendant was in ill temper, frustrated by his inability to tend to the baby’s needs, and the child was extremely sleepy — a symptom of shock— with tears in her eyes. Defendant spontaneously denied to Mallette that he had inflicted the bruises that appeared on the baby’s abdomen. When the infant’s condition worsened and she was taken to the hospital, defendant suggested to Mallette that they “get their stories straight” and that she not tell the authorities he had been alone with the child. Moreover, in addition to the fatal injuries suffered by the infant, in the month prior to her death the baby had sustained rib and arm fractures as well as injuries to her legs caused by twisting. These injuries were consistent with battering, negating an inference that the fatal injuries were accidental and supporting a determination that defendant had recklessly caused the infant’s death (see, People v Henson, 33 NY2d 63, 73-74).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.


text:
    [644 NE2d 1368,620 NYS2d 812]
    Carven Associates, Also Known as Carvan Associates, et al., Respondents, v American Home Assurance Corp., Defendant and Third-Party Plaintiff-Appellant. Delro Industries, Inc., et al., Third-Party Defendants-Appellants, et al., Third-Party Defendants.
    Argued October 27, 1994;
    decided November 29, 1994

      APPEARANCES OF COUNSEL

      Mound, Cotton & Wollan, New York City (Andrew C. Jacobson, Diane P. Simon and David I. Schonbrun of counsel), for defendant and third-party plaintiff-appellant.

      Herzfeld & Rubin, P. C, New York City (David B. Hamm, Herbert Rubin, Ellin Mulholland and Linda M. Brown of counsel), for Delro Industries, Inc., third-party defendant-oppellant.

      Spiegel, Pergament & Brown, Poughkeepsie (Donald D. Brown, Jr., and Cynthia K. Fichera of counsel), for Litton Systems, Inc., third-party defendant-appellant.

      Bartlett, McDonough, Bastone & Monaghan, White Plains
      (Edward J. Guardaro, Jr., of counsel), for Northberry Concrete Corp., third-party defendant-appellant.

      Wilson, Bave, Conboy & Bave, P. C., White Plains (John P. Perfetti of counsel), for Charles V. Castaldo Construction Corp., third-party defendant-appellant.

      Weg & Myers, P. C., New York City (Dennis T. D’Antonio, Myrle L. Davis and Joshua L. Mallín of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the order of Supreme Court dismissing plaintiffs’ complaint reinstated. The certified question should be answered in the negative.

In the singular circumstances presented by this appeal we conclude that Supreme Court properly exercised its discretion to dismiss the complaint and the third-party complaint, even after its previous denial of defendant American Home’s motion had been affirmed by the Appellate Division, First Department (173 AD2d 369). A subsequent order of the Appellate Division, Second Department (175 AD2d 790), determined that a prior action by plaintiffs based upon the same events as the present action had been dismissed for their willful and repeated refusal to obey court-ordered disclosure and accordingly, plaintiffs were not entitled to reinstitute their action against defendant (see, CPLR 205 [a]).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur in memorandum; Judge Smith taking no part.

Order reversed, etc.


text:
    [645 NE2d 1210, 621 NYS2d 511]
    The People of the State of New York, Appellant, v Leo Huurre, Respondent.
    Argued October 21, 1994;
    decided November 29, 1994

      APPEARANCES OF COUNSEL

      Francis D. Phillips, II, District Attorney of Orange County, Goshen (Laura J. Meehan of counsel), for appellant.

      Gary Schoer, Syosset, for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by Justice Charles B. Lawrence at the Appellate Division (193 AD2d 305).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    [644 NE2d 1369, 620 NYS2d 813]
    Barry E. Snyder, Sr., Doing Business as Seneca Hawk, Appellant, v James W. Wetzler, as Commissioner of Taxation and Finance of the State of New York, et al., Respondents.
    Argued October 20, 1994;
    decided December 1, 1994

      APPEARANCES OF COUNSEL

      Jones, Day, Reavis & Pogue (Timothy B. Dyk and Gregory G. Katsas, of the District of Columbia Bar, admitted pro hoc vice, of counsel), and Toohey & Dowd, P. C., Lewiston (Timothy J Toohey of counsel), for appellant.

      G. Oliver Koppell, Attorney-General, Albany (Lew A. Millenbach, Jerry Boone and Peter H. Schiff of counsel), for respondents.

      Block & Colucci, P. C., Buffalo (Joseph F. Crangle of counsel), for Seneca Nation of Indians and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

In this action for declaratory and injunctive relief, the issue is whether the State Department of Taxation and Finance may require plaintiff, an enrolled member of the Seneca Nation, to collect and remit sales, use and excise taxes on sales of cigarettes and motor fuel to non-Indian consumers at plaintiff’s retail business on the Cattaraugus Reservation. Because the issue is directly governed by controlling precedent, we affirm the order of the Appellate Division dismissing plaintiff’s complaint.

The United States Supreme Court has clearly established that State tax statutes requiring Indian retailers to collect and remit taxes on sales to non-Indian purchasers, and to keep the records necessary to ensure compliance, violate neither the Commerce Clause nor the constitutional proscription against direct taxation of Indians absent explicit congressional consent (see, Oklahoma Tax Commn. v Potawatomi Tribe, 498 US 505; Washington v Confederated Tribes, 447 US 134; Moe v Salish & Kootenai Tribes, 425 US 463). To the extent plaintiff contends that the State tax statutes at issue violate either the Supremacy Clause or New York law, his arguments are unpreserved and cannot be considered on this appeal. Plaintiff’s complaint asserted only violations of the Commerce Clause and "the Laws of the United States enacted pursuant thereto”.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs, in a memorandum.