author: Cooke, J. (dissenting).

text:
    In the Matter of the Adoption of Drew B. Goldman. Catherine A. Goldman, Appellant; Mary J. Goldman, Respondent.
    Argued January 13, 1977;
    decided February 24, 1977

      David A. Field and Ira A. Turret for appellant.

      Herbert Schrank, Sidney Segelstein and Ralph R. Hochberg for respondent.
   Memorandum. The order of the Appellate Division (51 AD2d 282) is affirmed, with costs. That court correctly determined, upon the record before it, that the natural mother had not abandoned the child within the meaning of section 111 of the Domestic Relations Law in effect at the time this adoption proceeding was commenced or, as we think also, within the meaning of that section as amended by chapter 666 of the Laws of 1976 (see, e.g., Matter of Susan W. v Talbot G., 34 NY2d 76). The heavy burden of proving abandonment (Matter of Bistany, 239 NY 19; Matter of Cocozza v Antidormi, 35 AD2d 810) has not been met by petitioner, who married the natural father following the parents’ divorce. Even with the change, if indeed applicable, wrought by the amendment to section 111 of the Domestic Relations Law (L 1976, ch 666, § 9), lightening the burden of proving abandonment, the burden remains a heavy one, especially if constitutional limitations are to be observed (see Matter of Bennett v Jeffreys, 40 NY2d 543, 548).

Reliance by the Surrogate on the provisions of section 371 of the Social Services Law, in focusing upon the mother’s intent in measuring her conduct as a yardstick or predicate for a finding of abandonment, was inappropriate. That section and article 6 of the Social Services Law within which it is found, deal not with the question of abandonment sufficient to negative the required consent by a natural parent in adoption proceedings, but relates to custody cases dealing with the State’s role in the care and protection of neglected or deprived children.

We do not agree with the analysis advanced by the dissenter and his application of the standards sought to be imposed based on the facts of this case. This proceeding, brought by the father’s second wife, seeking to deprive a mother of parenthood, was commenced in April, 1974, and involves a young man about to reach his majority. In the context of the factual background of this case, it is regrettable that this long controversy has, as is often the case, engendered bitterness between the adult litigants. Often, such charges and countercharges are not conducive to the completely satisfactory resolution of such a highly sensitive and delicate problem.

The Appellate Division found, for which there is adequate support in the record, that the natural mother permitted the son to live with the father, a man of substantial means, during times when she was undergoing two serious operations. The latest was in 1968 when she was required to undergo a laminectomy, a serious surgical procedure necessitating a lengthy hospitalization and convalescence. Testimony also revealed, as found by the court below, that the mother continued to communicate with her son and sent him gifts. The testimony also revealed that by agreement, the son was sent to visit his mother in Westchester by chauffeured limousine on weekends. It is undisputed that these visits began to be more infrequent and, upon inquiry, she was told by the father that the boy was busy and otherwise engaged. She also testified that she requested the father to return the boy to her custody as provided in and by a prior separation agreement, but she was not successful. Additionally, there was testimony that phone calls to her husband’s home were also rebuffed and that she was told " 'You cannot see him on Saturdays anymore or on weekends. Out. Completely.’ * * * In other words, 'Just stay back there’ ”. It is clear, therefore, that petitioner has not met the heavy burden of proving abandonment on the part of the natural mother; nor, in fact, has she demonstrated that the mother evinced "an intent to forego * * * her parental or custodial rights and obligations” as required by the most recent amendment of section 111 of the Domestic Relations Law (L 1976, ch 666, § 9). Thus, we find no warrant for a determination that the status of parenthood be dissolved.

Cooke, J. (dissenting).

I cannot agree with the majority’s affirmance of the Appellate Division order.

The instant adoption proceeding was instituted pursuant to article 7 of the Domestic Relations Law on April 30, 1974. At that time, consent to adoption was not required of a parent who had "abandoned” his or her child. There was, however, no statutory standard set in the Domestic Relations Law for determining what constituted abandonment and courts were required to rely upon the strict common-law standard applied in such cases as Matter of Bistany (239 NY 19) and Matter of Maxwell (4 NY2d 429). Requisite was a showing of acts so unequivocal as to bear one interpretation and one only, that the parent manifested an intention to abandon the child forever (Matter of Bistany, supra, at p 24) or "a settled purpose to be rid of all parental obligations and to forego all parental rights” (Matter of Maxwell, supra, at p 433). As recently as May of 1974, this court reaffirmed that standard, noting that "Even where the flame of parental interest is reduced to a flicker the courts may not properly intervene to dissolve the parentage” (Matter of Susan W. v Talbot G., 34 NY2d 76, 80).

Since 1974, section 111 of the Domestic Relations Law has been twice amended, first to overrule the "flicker of interest” test and ease the burden on the party seeking to prove abandonment (see Memorandum of Joseph R. Pisani, New York State Senator, in support of Senate Bill 1992-A for 1975; NY Legis Ann, 1975, p 62) and later to set a standard for abandonment in keeping with that applicable to other proceedings with the similar objective of terminating parental rights. By section 3 of chapter 704 of the Laws of 1975, the Legislature amended section 111 so that "evidence of insubstantial and infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a finding that such parent has abandoned such child.” Then, in 1976, to become effective on January 1, 1977, section 111 was further amended (L 1976, ch 666, § 9), this time to bring the standard for abandonment applicable to this proceeding into line with those found in the Social Services Law and the Family Court Act.

If we accept, as we must, the proposition that a case must be decided on the basis of the law in effect at the time of judicial review (Matter of Ray A. M., 37 NY2d 619, 621; Strauss v University of State of N. Y., 2 NY2d 464, 467, and cases cited therein), it is clear that we cannot affirm the Appellate Division order of reversal. That court relied upon case law, the stringency of which had been effectively overruled by chapter 704 of the Laws of 1975 which had taken effect on August 9, 1975, seven full months before the Appellate Division handed down its decision reversing the Surrogate. In view of the uncontested fact that the mother made no attempt during a period of three years to visit her son, the mother’s "flicker of interest” as evidenced by a few small gifts and birthday cards might not have been sufficient to preclude a finding of abandonment, particularly in light of the fact that the mother continued to receive $3,000—$4,000 per year from the natural father for care of this child though the child no longer resided with her. While the Surrogate may have misstated and misapplied the law, the Appellate Division was in error when it concluded that "Under the facts disclosed in this record, although the flame of parental interest may be a mere flicker, nevertheless, this court should not extend its hand to extinguish the light” (51 AD2d 282, 285).

In its concern for children heretofore precluded from enjoying a normal family life in a permanent home, the Legislature has determined it wise to lessen the burden on those seeking to free such children from tenuous family ties in an attempt to afford such children the permanent home it believes they deserve and need. Since there is no vested right in a rule of evidence (People v Turner, 117 NY 227, 233; Matter of L’Hommedieu v Board of Regents of Univ. of State of N. Y., 276 App Div 494, 507, affd 301 NY 476, affd 342 US 951), the Legislature had the power to enact the evidentiary rule here and make it applicable to pending proceedings even though it effected a change in a previously existing rule of evidence. The courts, for their part, must acknowledge and carry out the legislative change.

Accordingly, the order of the Appellate Division should be reversed and the matter remitted to the Surrogate’s Court of New York County for further proceedings and determination in the light of existing law.

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

Order affirmed.

       We note that, while this amendment became effective January 1, 1977, the Legislature expressly provided that it should not be construed "so as to alter, affect, impair, defeat or restore any rights * * * accrued, incurred, conferred or terminated prior to the effective date of this act” (L 1976, ch 666, § 35).


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Peter G. Dougherty, on Behalf of Himself and All Others Similarly Situated, Appellants, v Stanley M. Makowski, as Mayor of the City of Buffalo, et al., Respondents.
    Argued February 9, 1977;
    decided February 24, 1977
    Reported below, 49 AD2d 424.
   Appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Friendly Ice Cream Corp. v Great Eastern Mall, 39 NY2d 1032; Cohen and Karger, Powers of the New York Court of Appeals, § 43, subd [d], p 174 et seq.).


text:
    Clarence P. Bilhorn et al., Appellants, v William G. Farlow, Jr., et al., Respondents.
    Submitted January 17, 1977;
    decided February 24, 1977
    Reported below, 54 AD2d 1120.
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion to respondent Smithkline Corporation, upon the ground that the order appealed from involves the exercise of discretion of a type not reviewable by the Court of Appeals.


text:
    The People of the State of New York, Respondent, v Francisco Sandoval, Appellant.
    Submitted February 14, 1977;
    decided February 24, 1977
    Reported below, 55 AD2d 661.
   Motion to dismiss the appeal herein granted and the appeal dismissed upon the ground it does not lie as of right (see CPL 450.90, 460.20).


text:
    The People of the State of New York, Respondent, v John Collice, Appellant.
    Argued February 7, 1977;
    decided March 22, 1977

      James J. McDonough, Matthew Muraskin and Eugene Murphy for appellant.

      Denis Dillon, District Attorney (Judith K. Rubinstein and William C. Donnino of counsel), for respondent.
   Memorandum. Order of the Appellate Division affirmed. On no view of the evidence has a justification defense been established. Even if defendant had actually believed that he had been threatened with the imminent use of deadly physical force, and there is no evidence that he had so believed, his reactions were not those of a reasonable man acting in self-defense (Penal Law, § 35.15). If his fear had been that of close combat with his alleged pursuers, retreat into his home would have been of avail rather than wanton shooting. And, if defendant had been afraid of being shot before he could enter his home, unlikely since he was shooting from his own driveway, taking random shots at an automobile with six occupants was not apt to give him much time. Hence, defendant’s conduct could not be reasonably perceived to have been useful in evading danger, let alone "necessary to defend himself’ (Penal Law, § 35.15). Indeed, the short of it all is that from the inception of defendant’s transaction with his "enemies” he had initially sought them out for a confrontation, backed away when outnumbered, and then when they followed him to his neighborhood, he shot at them before he had completed his "retreat” which was largely successful and could have been consummated by withdrawal in complete safety to his home. A jury charge on the issue of justification was, therefore, unnecessary.

Concerning the issue of exclusion of women from the jury, it is foreclosed by this court’s holding in People v Parks (41 NY2d 36, 41-45) and People v Huffman (41 NY2d 29, 35).

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

Order affirmed in a memorandum.


text:
    In the Matter of John Schwab et al., Appellants, v Richard J. Bowen, as City Manager of the City of Long Beach, et al., Respondents.
    Argued February 8, 1977;
    decided March 22, 1977

      F. James Woods for appellant.

      Morris H. Schneider, Corporation Counsel (David Schlachter of counsel), for respondent.
   Memorandum. Order affirmed, with costs. The issues raised in this proceeding, if they were otherwise still available to petitioners, have been largely determined by this court after leave to appeal had been granted in this case (see Matter of Burke v Bowen, 40 NY2d 264, 267; cf. Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268, 275276). Most important, the collective bargaining agreement under which petitioners assert their claims expired June 30, 1975 thus terminating on any theory the right to reinstatement to their former positions. Reinstatement is the primary relief sought in this proceeding and the primary relief they persist in claiming on appeal to this court.

Damages may not be awarded in this proceeding because damages, if any, would not be incidental to primary relief (CPLR 7806). This determination is without prejudice, of course, to any other action petitioners may be advised to take (see Matter of Burke v Bowen, supra, p 267). Since more than improper form of proceeding is involved, and, moreover, petitioners do not ask for such relief in the alternative, the court does not apply the ameliorative provision of CPLR 103 (subd [c]) to convert this special proceeding.

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

Order affirmed.


text:
    Henry A. Pollak, Respondent, v State of New York, Appellant. Davis Construction Corporation, Respondent, v State of New York, Appellant.
    (Claim No. 50931.)
    (Claim No. 53297.)
    Argued February 7, 1977;
    decided March 22, 1977

      Louis J. Lefkowitz, Attorney-General (Jean M. Coon and Ruth Kessler Toch of counsel), for appellant.

      Bernard Sommer and William D. Siegel for Henry A. Pollak, respondent.

      Michael J. Goldstein for Davis Construction Corporation, respondent.
   Memorandum. The orders of the Appellate Division should be affirmed, with costs. On the issue of access raised in both appeals, the appropriation by the State was without reservation to the property owners of the legal right of access to the public highway. That the State acquiesced in claimants’ use of a service road, on other State-held property, which led to the highway, afforded permissive and practical access but not a permanent legal right of access. The State was and is under no legal constraint to permit claimants to use the roadway nor is the State obligated, by positive law, to maintain the roadway in serviceable condition. The fact is that deprivation of the legal right to access rendered claimants’ titles unmarketable. In like circumstances, we have held that the absence of an explicit reservation of a right to access in the original appropriation may not be cured by provisional expedients, offered by and subject to the grace of the State. (E.g., Kravec v State of New York, 40 NY2d 1060; Wolfe v State of New York, 22 NY2d 292.) Claimants are entitled to be compensated for the loss of their right to enter and exit their property. The costly consequence in these cases appears to have been occasioned by the lapse of those who handled the appropriation on behalf of the State. Similar lapses have recurred in a number of recent cases.

On the other point raised by the State, which affects only the Poliak property, there was expert testimony, credited by both courts below, that the property was rendered insufficient to sustain the chemical operations previously conducted on the premises as a result of a reduction in the length of the railroad siding. The affirmed findings, in this respect, have a basis in the record and there our review must end.

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

In each case: Order affirmed.


text:
    In the Matter of Karen Rankin, by Marion Ritter, Her Mother and Natural Guardian, Respondent, v Abe Lavine, as Commissioner of the New York State Department of Social Services, Appellant, et al., Respondent.
    Argued February 10, 1977;
    decided March 22, 1977

      Louis J. Lefkowitz, Attorney-General (Clifford A. Royael and Jean M. Coon of counsel), for appellant.

      John M. LeFevre for respondent.
   Memorandum. The judgment of the Appellate Division should be affirmed, with costs. Under Federal law, a State may elect to pay, with Federal assistance, aid to dependent children benefits to pregnant women. However, the payment of such benefits is not mandatory. (Burns v Alcala, 420 US 575.) In New York, the Department of Social Services, by its own regulations issued in pursuance of its statutory authority (Social Services Law, §§20, 34), within the compass of the statutory eligibility standard for aid to dependent children benefits (Social Services Law, § 349), extended coverage to unborn children, provided that the mother’s pregnancy is medically established. (18 NYCRR 369.2 [a] [1] [i]; Matter of Boines v Lavine, 44 AD2d 765, mot for Iv to app den 34 NY2d 519, cert den 419 US 1040.) Thus, the commissioner’s argument that such coverage is not provided is conclusively and entirely negated by his own regulations. (E.g., Matter of Catoe v Lavine, 51 AD2d 545, mot for lv to app den 39 NY2d 709; Matter of Boines v Lavine, supra.) The commissioner’s remedy lies in his own regulations, not in the courts. Until then the department should comply with the existing final determination of the courts. (Matter of Jones v Berman, 37 NY2d 42, 52-53.)

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

Judgment affirmed.


text:
    In the Matter of Montauk Improvement, Inc., et al., Respondents, v Mario A. Proccacino et al., Constituting the State Tax Commission, Appellants. In the Matter of Alpha Computer Service Corp. et al., Respondents, v State Tax Commission, Appellant.
    Argued February 8, 1977;
    decided March 22, 1977

      Louis J. Lefkowitz, Attorney-General (Francis V. Dow, Ruth Kessler Toch and John F. Forner of counsel) for appellant.

      Alan S. Rosenberg and David Silvers for Montauk Improvement, Inc., and another, respondents.

      Marvin M. David for Alpha Computer Service Corp. and others, respondents.
   Memorandum. The judgments of the Appellate Division are modified and the matters are remitted to the State Tax Commission for further proceedings.

The determination of the State Tax Commission, acting in a quasi-judicial capacity, to require separate returns was based on the exercise of a discretion vested only in the commission which, through promulgated regulations, has established standards by which that discretion should be exercised (20 NYCRR 5.28 [b]). "[A] reviewing court, in dealing with a determination * * * which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” (Securities Comm. v Chenery Corp., 332 US 194, 196; cited with approval Matter of Barry v O’Connell, 303 NY 46, 50-51). Review is limited to a consideration of the statement of the factual basis for the determination and whether, in light of the agency’s own standards, the findings, supported by substantial evidence, sustained the conclusions. A court cannot surmise or speculate as to how or why an agency reached a particular conclusion. Failure of the agency to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review and deprives the petitioner of his statutory right to such review (Matter of Simpson v Wolansky, 38 NY2d 391, 396; Matter of Barry v O’Connell, supra).

The Tax Commission has appealed from judgments of the Appellate Division which annulled the determinations, but in the cases before us has failed to present sufficient findings of fact, or indeed any findings, upon which review could be predicated. The commission proffered as a conclusion, in both cases, that "[i]t is the policy of the Tax Commission not to permit or require a combined return where taxation on an individual basis produces a more proper result.” No reference was made to the agency’s own regulations, nor were findings of fact posited which demonstrated the basis for its conclusion; and, indeed, no relationship between findings of fact and the conclusory statements were presented. Under these circumstances the Tax Commission failed to provide statements of decision sufficient for review, and its determinations must be annulled. However, in so doing, the judgments of the Appellate Division are modified by remitting the matters to the Tax Commission with instructions to make findings of fact in support of whatever decision it may deem proper, based on the evidence previously presented (see Matter of New York Water Serv. Corp. v Water Power & Control Comm., 283 NY 23; 24 Carmody-Wait 2d, NY Prac, § 145:365).

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

In each case: Judgment modified, with costs to petitioners, and the matter remitted to Supreme Court, Albany County, with directions to remand to the State Tax Commission for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of the Civil Service Employees Association, Inc., Monroe County Chapter, et al., Respondents, v William M. Lombard, as Sheriff for Monroe County, Appellant.
    Argued February 10, 1977;
    decided March 22, 1977

      William J. Stevens, County Attorney (David Van Varick of counsel), for appellant.

      James T. Hancock for respondents.
   Order affirmed, with costs, on the memorandum at the Appellate Division (50 AD2d 708).

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


text:
    In the Matter of the Estate of Nathan Kaplan, Deceased. Miriam Kaplan, as Executrix of Nathan Kaplan, Deceased, Respondent; Robert Kaplan et al., Appellants.
    Argued February 7, 1977;
    decided March 22, 1977

      Ernest L. Matthews, Jr., for appellants.

      Frederick Siegmund for respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. The manifest intent expressed by the will precludes on its face the objections to the account. Assuming that there is a latent ambiguity, the evidence was not so strong as to justify the conclusion by the Surrogate that the will should be interpreted as he did, and on the balancing of the record the views on the facts reached by the Appellate Division are favored.

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


text:
    In the Matter of the Estate of Sam W. Brunner, Deceased. Suzanne Brunner et al., Respondents; Jay Hochman et al., Appellants.
    Argued February 8, 1977;
    decided March 22, 1977

      Julius G. Hirsch and Edward V. Finn for appellants.

      Joseph A. Cox, Shirley Cherin and Robert E. Steinberg for Suzanne Brunner, respondent.

      Robert Markewich and Jon Quint for Robert Denape, respondent.
   Memorandum. The testator was once domiciled in New York, but since he had moved to France, and died there, the question is whether France was his domicile at the time of death. SCPA 103 (subd 15) defines domicile as "A fixed, permanent and principal home to which a person wherever temporarily located always intends to return.” It has been noted that this statute codifies case law under which a domicile is a place which the testator intends to make his home indefinitely (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 103, p 21). This is generally a mixed question of fact and law. Indeed it has been said that it is a question "of fact rather than law, and it frequently depends upon a variety of circumstances, which differ as widely as the peculiarities of individuals” (Matter of Newcomb, 192 NY 238, 250).

Viewing the record in its entirety, we agree with the Appellate Division that the evidence overwhelmingly supports the conclusion that the testator was domiciled in France at the time of his death. Although he was born, and spent most of his life in New York, sometime prior to his death he sold his business and moved to France. Thereafter his contact with this State was minimal. He reserved a life estate in an apartment located at his former business, and on occasion he visited the State and stayed at the apartment for short periods of time. But he always returned to France where he resided with his wife, who is a citizen of France, and his daughter, in a substantial villa he had purchased at about the time of his retirement. It is true, as the Surrogate noted, that he informed the United States Internal Revenue Service that he still considered New York his "permanent residence” but as the Appellate Division observed, he gave a contrary statement to the New York State tax authorities. In the absence of a clearly expressed intent (see, e.g., Matter of Newcomb, supra) the courts must assess the decedent’s conduct, and the record clearly demonstrates, that he established his domicile in France and intended to remain there indefinitely.

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

Order affirmed in a memorandum, with costs payable by appellants personally.


text:
    Gerald I. Rhodes, Respondent, v Astro-Pac, Inc., et al., Appellants.
    Argued February 9, 1977;
    decided March 22, 1977

      John S. Hogg and George T. Mahshie for appellants.

      Gay M. Pomeroy for respondent.
   Memorandum. The order of the Appellate Division should be affirmed. For the reasons stated by the Appellate Division the plaintiff was entitled to summary judgment on the first cause of action. We would emphasize however that in this contract of sale, the defendant specifically agreed to convey to the plaintiff "by warranty, deed good title to the property free of all liens and encumbrances”. It is conceded that there is a common driveway located partially on the subject property and partially on the adjoining property; that there is a written agreement which grants an easement to both owners for the purpose of using the driveway, and that this easement is not specifically excepted in the contract of sale. The question is whether this common driveway is an encumbrance.

It is settled that an easement is an encumbrance (see, e.g., Fossume v Requa, 218 NY 339) and obviously a purchaser need not accept title subject to an encumbrance if the contract specifies conveyance of title free of all encumbrances. The rule applies even though there is no showing that the encumbrance actually diminished the current market value of the property (Fossume v Requa, supra; cf. Bull v Burton, 227 NY 101, 112). Defendant’s reliance on Riggs v Pursell (66 NY 193) is misplaced since that case involved a judicial sale. As we later noted in the Fossume case (supra, at p 344): "There are some cases of judicial sales in which the bidder has been compelled to accept title notwithstanding some minor defect therein, but that rule has not been extended to private contracts.”

Thus the defendant was unable to convey title in accordance with the contract and the plaintiff was entitled to return of the deposit and the incidental relief granted by the Appellate Division.

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

Order affirmed, with costs, in a memorandum.


text:
    American Bank & Trust Company, as Trustee of the First Hanover Retirement Trust, Appellant, v Hartford Accident and Indemnity Company et al., Respondents.
    Argued February 9, 1977;
    decided March 22, 1977

      Vincent Syracuse, David C. Birdoff, Stephen R. Steinberg and Andrew C. Freedman for appellant.

      Jerome Murray and Selig Rosenweig for respondents.
   Memorandum. The order of the Appellate Division should be affirmed.

We agree with the determination below that First Devon-shire Corporation was not a "successor” to First Hanover Corporation as that term was used in the subordination account agreement and within the contemplation of the parties and that the respondent insurer was not otherwise liable. Having so decided, however, it was unnecessary for the Appellate Division to reach the question as to whether or not the discharge in bankruptcy of First Devonshire extinguished the obligation between these parties. We therefore do not reach that issue. The other issues raised were adequately and correctly discussed at the Appellate Division in its memorandum.

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

Order affirmed, with costs, in a memorandum.


text:
    Carole Ann Realties, Inc., Appellant, v Roger Starr, as Administrator of the Housing and Development Administration of the City of New York, et al., Respondents.
    Argued February 10, 1977;
    decided March 22, 1977

      Roy M. Cohn for appellant.

      Arthur Kass, Harry Michelson and Morton Fried for respondents.
   Order affirmed, with costs, on the memorandum at the Appellate Division (50 AD2d 851).

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


text:
    Linda Gibbs, Respondent, v Jack S. Dweck, Appellant.
    Submitted February 10,-1977;
    decided March 22, 1977

      Harvey I. Sladkus and Vincent R. Coffey for appellant.

      Bernard J. Coven for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (52 AD2d 801).

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


text:
    In the Matter of Richard Esposito, Appellant, v Board of Education of the Huntington Union Free School District, Town of Huntington, Respondent.
    Argued February 10, 1977;
    decided March 22, 1977

      Eugene M. Kaufman for appellant.

      Louis C. Bernst and Thomas J. Cote for respondent.
   Judgment affirmed, with costs, on the memorandum at the Appellate Division (51 AD2d 547).

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


text:
    George Jemzura, Appellant, v State of New York, Respondent.
    Submitted February 22, 1977;
    decided March 22, 1977
   Motion to vacate the Court of Appeals order of dismissal, dated January 11,1977, denied. [See 40 NY2d 1091.]


text:
    Margaret R. Lebron, Appellant, v New York City Transit Authority, Respondent.
    Submitted February 14, 1977;
    decided March 22, 1977
    Reported below, 55 AD2d 566.
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of the Arbitration between Country-Wide Insurance Company, Appellant, and Roberto Barrios, Respondent.
    Submitted February 22, 1977;
    decided March 22, 1977
    Reported below, 54 AD2d 879.
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Queensborough Community College of the City University of New York et al., Respondents, v State Human Rights Appeal Board et al., Respondents, and Ethne E. K. Marenco, Appellant.
    Argued February 10, 1977;
    decided March 24, 1977

      Everett E. Lewis for appellant.

      W. Bernard Richland, Corporation Counsel (Mary P. Bass and L. Kevin Sheridan of counsel), for petitioners-respondents.
   Memorandum. Order affirmed, with costs.

The applicable statute provides that: "Any complaint filed pursuant to this section must be so filed within one year after the alleged unlawful discriminatory practice” (Executive Law, §297, subd 5). The alleged discriminatory practice was the manifested decision not to reappoint complainant. Hence, there is no basis for reasoning that the limitation did not start to run until complainant had completed her current term of employment. The act of giving complainant notice that she would not be reappointed gave rise immediately to a "cause of action”, as the Appellate Division observed, and therefore started the running of the limitation period. The analogy to Statutes of Limitation in general civil practice would lead to the same conclusion (CPLR 203, subd [a]; 1 Weinstein-Korn-Miller, NY Civ Prac, par 203.01). Nor is the limitation tolled by the invocation of grievance procedure which is merely an alternative remedy. In Federal practice under the Federal statutes a similar conclusion was reached by the Supreme Court (Electrical Workers v Robbins & Meyers, 429 US 229, 236-240).

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

Order affirmed.


text:
    Leanore Mello, as Mother and Natural Guardian of Robert Mello, an Infant, Appellant, v Hicksville Union Free School District No. 17, Respondent.
    Argued February 11, 1977;
    decided March 24, 1977

      Lewis Herman for appellant.

      William Marino and Joseph W. Conklin for respondent.
   Order affirmed, without costs, on the memorandum at the Appellate Division (51 AD2d 580).

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


text:
    Kenneth Feiger, Respondent, v Iral Jewelry, Ltd., Appellant.
    Argued February 11, 1977;
    decided March 24, 1977

      Barrett G. Kreisberg for appellant.

      Arnold J. Ross for respondent.
   Memorandum. Order affirmed, with costs.

One who owes a duty of fidelity to a principal and who is faithless in the performance of his services is generally disentitled to recover his compensation, whether commissions or salary (Restatement, Agency 2d, § 469). Nor does it make any difference that the services were beneficial to the principal, or that the principal suffered no provable damage as a result of the breach of fidelity by the agent (see Wechsler v Bowman, 285 NY 284, 291-292, remittitur amd 286 NY 582; Lamdin v Broadway Surface Adv. Corp., 272 NY 133, 138-139). Nevertheless, on the findings of fact in this case, meticulously detailed by the court at trial, and affirmed at the Appellate Division, plaintiff was not guilty of any breach of fidelity during the term of his employment or engagement (see opn [85 Misc 2d 994] by Madam Justice Beatrice Shainswit at Supreme Ct). That plaintiff during his employment planned and took preliminary steps to enter into a competitive business involved no breach of fidelity so long as, as the courts below found as a fact, plaintiff never lessened his work on behalf of defendant and never misappropriated to his own use any business secrets or special knowledge (compare Jones Co. v Burke, 306 NY 172, 188-189, with Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 308-309, and Leo Silfen, Inc. v Cream, 29 NY2d 387, 391-392, 395).

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

Order affirmed.


text:
    Julian Naetzker et al., Respondents, v Brocton Central School District, Appellant.
    Argued February 14, 1977;
    decided March 24, 1977

      Stephen Teret for appellant.

      C. De Forest Cummings, Jr., for respondents.
   Memorandum. The order of the Appellate Division should be reversed, with costs, and petitioner’s application for a stay of arbitration denied. The owner’s claim against the architects, which is cognizable in law either in contract or in tort, was interposed within the six-year Statute of Limitations applicable to contract actions. (CPLR 7502, subd [b]; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669.) The facts in the present case are "remarkably like those” in Paver & Wildfoerster itself (38 NY2d, at p 676) and the rule articulated in that case is fully applicable to this one. Since the claim was timely asserted, it was error to stay arbitration.

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

Order reversed, etc.


text:
    Reliance Insurance Companies, Respondent, v James C. Daly, Appellant.
    Argued February 15, 1977;
    decided March 24, 1977

      Eugene G. Lamb and Charles V. McDonald for appellant.

      Edward J. Hart for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (52 AD2d 645).

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


text:
    In the Matter of the Claim of Terry T. McKay, Respondent, v Town of West Seneca et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued February 10, 1977;
    decided March 24, 1977

      Mark W. Hamberger and Marvin H. Mason for appellants.

      John J. Gruber for claimant-respondent.
   Order reversed and the decision of the Workmen’s Compensation Board reinstated on the dissenting opinion by Mr. Justice A. Franklin Mahoney at the Appellate Division (51 AD2d 373, 377-381).

Concur: Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Fuchsberg. Judge Cooke dissents and votes to affirm on the opinion by Presiding Justice Harold E. Koreman at the Appellate Division (51 AD2d 373, 374-377). Taking no part: Judge Jasen.


text:
    Semperit of America, Inc., Respondent, v Todd Equipment Leasing Company, Incorporated, Appellant.
    Argued February 14, 1977;
    decided March 24, 1977

      Henry J. Tashman and Robert G. Sugarman for appellant.

      Stephen P. H. Rachlis and Hans Harnik for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (51 AD2d 908). (See, also, Mallard Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259; Indig v Finkelstein, 23 NY2d 728, 729.)

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


text:
    Trimble-Waterman Associates et al., Appellants, v Certain Underwriters at Lloyd’s et al., Respondents.
    Argued February 7, 1977;
    decided March 24, 1977

      William J. Junkerman and Randal R. Craft, Jr., for appellants.

      Julian S. Gravely, Jr., John J. Martin and Robert F. Ewald for respondents.
   Memorandum. The order of the Appellate Division should be affirmed, with costs.

An aircraft with a market value of perhaps $180,000 crashed in the course of a landing operation. There was proof that repairs would total at least $158,000, and that the damaged aircraft had a salvage value of some $37,000. Respondent insurers had written a "valued policy” in which the stated value of the insured aircraft was $300,000. Appellant insureds claimed entitlement to the agreed value, less $3,000 deductible and the salvage value, and moved for partial summary judgment in the nature of declaratory relief—to wit, a determination that the insurers "are obliged, under the insurance policy and the relevant law, to consider plaintiffs’ aircraft a total loss if the projected cost of attempting to restore the aircraft to its condition prior to the crash exceeds one-half of the aircraft’s projected value after repairs”.

The insureds do not claim, as indeed they cannot, that there was literally an actual total loss, i.e., that the aircraft was lost beyond recovery or damaged beyond repair, in which event the insurers would have been obligated to pay the full agreed value. Much of the tendered proof was addressed to the liability of the insurers in the event of total loss. This policy made explicit provision, however, as to the extent of the liability of the insurers where the loss was partial:

"3. LIMIT OF LIABILITY: SETTLEMENT OPTIONS: NO ABANDONMENT.

"The liability of the Underwriters for direct physical loss of or damage to the aircraft shall not exceed the amount of insurance [i.e., agreed value by virtue of Endorsement 5] set out in the Declarations, less the applicable deductible, nor what it would cost to repair or replace the aircraft or parts thereof with other of like kind and quality, and without compensation for loss of use. The Underwriters may pay for the loss in money or may repair or replace the aircraft or parts thereof, as aforesaid”.

The insurers take the position that under this provision their liability was limited to "what it would cost to repair * * * the aircraft”, rather than its more-than-double agreed value.

As the predicate for the declaratory judgment they desired, the insureds sought to invoke a doctrine from the field of marine insurance that if the projected cost of attempting to restore an insured vessel to its condition prior to the damage exceeds 50% of the vessel’s projected value after repair, the insured may claim "constructive total loss” and thus become entitled to be paid the face amount of a valued policy (see 31 NY Jur, Insurance, § 1401). In the light of the explicit provisions of paragraph 3 which we hold dispositive, we do not consider or decide whether the 50% rule of marine insurance is to be imported into aircraft insurance.

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

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


text:
    Hamilton Mutual Realty Fund, Inc., Respondent, v Band Realty Company, Appellant, and City of Yonkers, Respondent, et al., Defendants.
    Argued February 15, 1977;
    decided March 24, 1977

      Lawrence A. Blatte for appellant.

      Harvey J. Fried and Herbert C. Litt for plaintiff-respondent.

      Eugene J. Fox, Corporation Counsel (William N. Carroll of counsel), for defendant-respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

Appellant has failed to demonstrate that on the record before us there is any triable issue of fact which is legally material. Nor, assuming that the issue was raised below, is there any merit to appellant’s contention that respondent is precluded from foreclosing the tax liens in question because no notice of redemption was given under section 1110 of the Real Property Tax Law. Section 1110 is not applicable since the City of Yonkers has not elected article 11 of the Real Property Tax Law (cf. § 1104, subd 1). We do not consider the several constitutional issues raised for the first time on the appeal to our court.

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

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


text:
    National Commercial Bank and Trust Company, Appellant, v Richard I. Rubin and Co., Inc., et al., Respondents.
    Argued February 11, 1977;
    decided March 24, 1977

      Francis H. Trombly for appellant.

      William P. Willig for respondents.
   Memorandum. The order of the Appellate Division should be affirmed for the reasons stated in the memorandum in that court. Although the new construction and addition of 1972-1973 concededly became part of the Mohawk Mall, no admissible proof is tendered in this record that the new construction and addition in question were part of the plan for the "Landlord’s Complex” at the time of the execution of the lease in November, 1969.

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

Order affirmed, with costs, in a memorandum.


text:
    Frederick P. Bernal, Appellant, et al., Plaintiff, v Pinkerton’s, Inc., Respondent.
    Argued February 11, 1977;
    decided March 24, 1977

      Bernard Meyerson, Lawrence M. Rosenberg and Gustave G. Rosenberg for appellant.

      Joseph D. Ahearn and Daniel J. Coughlin for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (52 AD2d 760).

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


text:
    In the Matter of Stevens Imports, Inc., et al., Appellants, v James J. Lack, as Commissioner of the Department of Consumer Affairs of the County of Suffolk, Respondent.
    Argued February 11, 1977;
    decided March 24, 1977

      Sherwin E. Allen for appellants.

      Howard E. Pachman, County Attorney (Anton J. Barovina and Henry G. Wenzel, III, of counsel), for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (52 AD2d 928).

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


text:
    Jack M. Lester et al., Respondents, v Irving Levick et al., Appellants.
    Argued February 15, 1977;
    decided March 24, 1977

      Lewis S. Sandler for Irving Levick, appellant.

      Joseph Winston for Bernard Greenspan, appellant.

      Herbert B. Ruskin and Richard Gyory for respondents.
   Order reversed, with costs, and defendants’ motion for summary judgment dismissing the complaint granted on the dissenting memorandum by Mr. Justice Marcus G. Christ at the Appellate Division (50 AD2d 860, 862-863). Question certified answered in the negative.

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


text:
    Bernard M. Axelrod et al., as Trustees under the Will of Charles Axelrod, Deceased, Appellants, v Roger Starr, as Administrator of the Housing and Development Administration of New York City, et al., Respondents.
    Argued February 14, 1977;
    decided March 24, 1977

      Wynne B. Stern, Jr., for appellants.

      W. Bernard Richland, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for respondent.
   Order affirmed, with costs, on the opinions by Mr. Justice Nathaniel T. Helman at Special Term and Mr. Justice Samuel J. Silverman at Appellate Division (52 AD2d 232).

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


text:
    John Grace Co., Inc., Respondent, v State University Construction Fund, Appellant. A. D. Herman Construction Co., Inc., Respondent, v State University Construction Fund, Appellant.
    Submitted February 14, 1977;
    decided March 24, 1977
    Reported below, 55 AD2d 299.
   Motions for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the nonfinal orders sought to be appealed from were entered in actions, not proceedings, and therefore are not ones which come within the provisions of CPLR 5602 (subd [a], par 2). (See, e.g., Ofenloch v Gaynor, 28 NY2d 806; Regenbogen v Rent Stabilization Assn. of N. Y. City, 31 NY2d 668.)


text:
    In the Matter of Frederick Boutelle, Appellant, v New York State Board of Parole et al., Respondents.
    Submitted March 7, 1977;
    decided March 24, 1977
    Reported below, 53 AD2d 397.
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, for mootness.


text:
    In the Matter of Carlton Whittaker, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted February 14, 1977;
    decided March 24, 1977
    Reported below, 51 AD2d 858.
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, for mootness.


text:
    Mobil Oil Corporation, Respondent, v Paul Rubenfeld, Appellant.
    Submitted February 14, 1977;
    decided March 24, 1977
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein, there was considered and rejected the contention that, under the Federal antitrust laws, appellant was entitled to the relief he sought.

Motion for a stay associated with amendment of remittitur dismissed (US Code, tit 28, § 2101, subd [f]). [See 40 NY2d 936.]


text:
    Jose Soler, Appellant, v Consolidated Edison Co., Inc., Respondent.
    Submitted February 14, 1977;
    decided March 24, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, for mootness.


text:
    The People of the State of New York, Respondent, v Elliot Cole, Appellant.
    Submitted February 18, 1977;
    decided March 29, 1977

      Thomas N. O’Hara for appellant.

      Carl A. Vergari, District Attorney (Anthony Joseph Servino of counsel), for respondent.
   Order reversed and a new trial ordered (see People v Waterman, 9 NY2d 561, 564-566; People v Di Biasi, 7 NY2d 544, 549-551; cf. People v Hobson, 39 NY2d 479, 481-485; People v Meyer, 11 NY2d 162, 164-165).

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


text:
    The People of the State of New York, Respondent, v Walter Lee Casiel, Appellant.
    Argued February 18, 1977;
    decided March 29, 1977

      Charles M. Schutzman for appellant.

      Henry F. O’Brien, District Attorney (Mark D. Cohen of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be reversed. In People v Brown (40 NY2d 381), this court interpreted recent rulings of the United States Supreme Court as precluding appeal by the People "from an adverse trial ruling whenever such appeal if resolved favorably for the People might require the defendant to stand retrial—or even if it would then be necessary for the trial court 'to make supplemental findings’ ”. Since, in this case, correction of any error committed by the trial court would lead to a second trial, as indeed the Appellate Division ordered, the taking of the appeal by the People to the Appellate Division violated the double jeopardy principles considered in Brown. Because the People were constitutionally precluded from appealing to the Appellate Division, the Appellate Division should have dismissed their appeal.

Accordingly, the order appealed from should be reversed and the case remitted to the Appellate Division, with directions that the appeal to that court be dismissed. (People v Baker, 39 NY2d 923, cert den 429 US 868.)

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

Order reversed, etc.


text:
    Edward A. Volkman et al., Appellants, v Alan Miller, as Commissioner of the Department of Mental Hygiene of the State of New York, et al., Respondents.
    Argued February 16, 1977;
    decided March 29, 1977

      Christopher A. Hansen and Bruce J. Ennis for appellants.

      Louis J. Lefkowitz, Attorney-General (Michael F. Colligan and Ruth Kessler Toch of counsel), for respondents.
   Memorandum. Prima facie the State has the power to provide a central facility for the storage and retrieval of statistics involving inpatients or outpatients of institutions and facilities owned or operated by the State. On this record there has been no showing that any supervening right has been invaded. (Cf. Matter of Schulman v New York City Health & Hosps. Corp., 38 NY2d 234; Whalen v Roe, 429 US 589.)

Accordingly, the order of the Appellate Division is affirmed, with costs.

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

Order affirmed.


text:
    Kennard Y. Schwamb, Doing Business as Cowhig Pharmacy, Respondent-Appellant, v Fireman’s Insurance Company of Newark, New Jersey, Appellant-Respondent.
    Argued February 16, 1977;
    decided March 29, 1977

      Roger M. Dunwell for respondent-appellant.

      Robert J. Lackaye and J. George Spitz for appellant-respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

The issue is whether appellant insurer is obligated, under the terms of the druggists’ liability insurance policy which it issued, to defend the insured druggist in a third-party action brought by one of his customers. No issue is now tendered as to the possible liability of the insurer to pay any judgment which may be recovered against the druggist in the underlying action.

The malpractice action is grounded in alleged sales of a proprietary drug to the customer at her request. It is clearly made to appear that perhaps in major part the claimant bases her theory of liability on assertions that while the druggist may have been authorized to fill the original prescription, he thereafter refilled the prescription on several occasions without written or oral authorization of the prescribing physician, in violation of subdivision 2 of section 6810 of the Education Law (cf. § 6811, subd 19). The insurer points to an express provision of the insurance policy which excludes "bodily injury or property damage caused by the willful violation of a penal statute”. If this were all, the insurer would be in a strong position to disclaim liability to defend.

Reference to the complaint in the tort action discloses, however, that the pharmacist’s liability is or may be predicated on more than prescription refills in violation of section 6810. In the first place, the complaint alleges without specificity as to dates that the refills in question occurred following the filling of the initial prescription on June 26, 1971. The pertinent interdiction of section 6810, however, did not become effective until September 1, 1971 (L 1971, ch 987). Prior to that date it does not appear that the drug sold to the customer came within the statutory ban (cf. Education Law, § 6814, prior to Sept. 1, 1971). Because the refillings complained of did not necessarily all occur after the effective date of the statute on which the insurer would rely, the policy exclusion cannot be said wholly to preclude the alleged liability.

Additionally, aside from liability based on the refilling of the prescriptions, the complaint contains claims of traditional negligence or malpractice and as well asserts liability arising from alleged failure to inform or warn the customer.

As we have said, "While policy coverage such as the one here involved is often referred to as 'liability insurance’, it is clear that it is, in fact, 'litigation insurance’ as well.” (International Paper Co. v Continental Cas. Co., 35 NY2d 322, 326.) So long as the claims, even though predicated on debatable or even untenable theory, may rationally be said to fall within policy coverage, whatever may later prove to be the limits of the insurer’s responsibility to pay, there is no doubt that it is obligated to defend (cf. Prashker v United States Guar. Co., 1 NY2d 584).

On the cross appeal it was not error to deny the insured’s request for an allowance for attorneys’ fees.

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

Order affirmed, without costs, in a memorandum.


text:
    Fred R. Oppenheimer, Appellant, v Dresdner Bank A. G., Respondent.
    Argued February 15, 1977;
    decided March 29, 1977

      Leon Rock for appellant.

      John A. Young for respondent.
   Memorandum. The plaintiff seeks to recover from the defendant bank the amount paid by it, plus interest, to the office of the court cashier of Frankfurt/Main, Germany, under constraint of an order of attachment and collection issued by the German court for court costs owed by the plaintiff’s assignor. Plaintiff claims that the bank was prohibited from reducing the installment payment due him by the amount it had been required to pay under the order of attachment. By the terms of its promissory note, the bank agreed to "pay * * * unconditionally, irrevocably, without our right to set-off or otherwise deduct any bank charges or any amounts for any reason whatsoever”.

On this motion for summary judgment, the intention of the parties, in the absence of the submission in evidentiary form of any parol evidence concerning their intent, is to be gleaned by the court solely from an interpretation of the written documents (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290; see Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 349). In the instant case the Appellate Division correctly determined that the language employed cannot be interpreted to preclude payment notwithstanding a valid levy upon the debt by the service of an order of attachment upon the bank by a third party. The bank, having paid the debt owing to the third party, is discharged from its obligation to the plaintiff to the extent of the amount paid (see Harris v Balk, 198 US 215, 226-227; cf. CPLR 6204). For these reasons and for other reasons stated by Mr. Justice Martuscello at the Appellate Division, except for the discussion of the question of public policy which it is not necessary to reach, the order of that court should be affirmed.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Arbitration between Aaacon Auto Transport, Inc., Respondent, and State Farm Mutual Automobile Insurance Co. et al., Appellants.
    Argued February 16, 1977;
    decided March 29, 1977

      Walter Williamson for appellants.

      Ralph J. Zola for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

The appellants were served by certified mail with a properly drawn notice of intention to arbitrate by the respondent and they voiced no objection. Thereafter the respondent moved, by order to show cause, to compel arbitration and appellants cross-moved to dismiss on forum non conveniens grounds (CPLR 327).

Pursuant to CPLR 7503 (subd [c]) appellants were "precluded from objecting that a valid agreement was not made or has not been complied with” by their failure to move to stay the proceedings within 20 days of their receipt of the notice of intention to arbitrate (see Matter of Jonathan Logan, Inc. [Stillwater Worsted Mills], 31 AD2d 208, affd 24 NY2d 898). They therefore are prohibited at this juncture from seeking to dismiss the proceeding to compel arbitration on the ground of the infirmity of the agreement to arbitrate.

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

Order affirmed, without costs, in a memorandum.


text:
    Frank Orelli et al., Respondents, v Jerome Ambro et al., Constituting the Town Board of the Town of Huntington, Appellants.
    Argued February 16, 1977;
    decided March 29, 1977

      Ronald Glickman, Town Attorney (Jerome P. Wallin of counsel), for appellants.

      Charles Feit for respondents.
   Memorandum. The judgment appealed from is reversed and the order of Special Term granting defendants’ motion for summary judgment and denying plaintiffs’ cross motion for summary judgment is reinstated.

The notice calling for the public auction at which Frank Orelli made his bid stated that "[t]he Town, at its option, may cancel the sale at any time before the actual delivery of the deed”. When the town board, acting at a time before the closing of the sale or delivery of the deed had taken place, rescinded its earlier resolution authorizing the acceptance of the Orelli bid, it was doing so within the clear letter of that language. It is important that the contemplated sale was not one between private parties. The public interest required the board to secure the most beneficial terms for the sale of the town’s property in order to lessen the possibility of extravagance, fraud or favoritism (10 McQuillin, Municipal Corporations, § 28.44, p 137). The board’s exercise of its option to cancel when it learned that another prospective buyer was ready to pay a considerably higher price for the property was consistent with that obligation. (See Min-Lee Assoc. v City of New York, 28 AD2d 553, affd 27 NY2d 790.)

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

Judgment reversed, without costs, and the order of Supreme Court, Suffolk County, reinstated in a memorandum.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property for Arverne II, Stage II, Urban Renewal Project, in the Borough of Queens. Den Robert Realty Co., Inc., et al., Appellants.
    Submitted January 10, 1977;
    decided March 29, 1977
    Reported below, 52 AD2d 877.


text:
    Elizabeth Scott, Respondent, v William H. Scott, Appellant.
    Submitted March 14, 1977;
    decided March 29, 1977
    Reported below, 55 AD2d 674.
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    Moke Realty Corporation, Respondent, v Whitestone Savings & Loan Association, Appellant.
    Argued February 17, 1977;
    decided March 31, 1977

      William J. Nielsen, George J. Meade and James G. Meade for appellant.

      George J. Solleder, Jr., for respondent.
   Order affirmed, with costs, on the opinion by former Justice Bertram Harnett at Trial Term (82 Misc 2d 396).

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


text:
    Harry W. Bobley, Appellant, v California Union Insurance Company, Respondent.
    Argued February 16, 1977;
    decided March 31, 1977

      Frank A. Weg for appellant.

      James S. Morris, Joseph V. McCarthy and Lawrence N. Chanen for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (52 AD2d 557).

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


text:
    George Mutterperl, Appellant-Respondent, v Arthur Levitt, as Comptroller of the State of New York and as Head of the New York State Employees’ Retirement System, Respondent-Appellant.
    Argued February 17, 1977;
    decided March 31, 1977

      Richard L. Burstein for appellant-respondent.

      Louis J. Lefkowitz, Attorney-General (John Q. Driscoll and Ruth Kessler Toch of counsel), for respondent-appellant.
   Judgment affirmed, with costs, on the opinion by Mr. Justice James Gibson at Special Term.

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


text:
    Bonnie Dalrymple, an Infant, by Her Mother and Natural Guardian, Dorothy Mee, et al., Respondents, v Ed Shults Chevrolet, Inc., Appellant.
    Argued February 17, 1977;
    decided March 31, 1977

      Bruce K. Carpenter and William C. Arrison for appellant.

      John L. Goodell for respondents.
   Orders affirmed, with costs, on the memorandum at the Appellate Division (51 AD2d 884, 885).

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


text:
    Von Arx, AG., Respondent, v C. J. Breitenstein, Defendant, and C. J. Breitenstein Co., Inc., Appellant.
    Argued February 17, 1977;
    decided March 31, 1977

      John Clifford Brady for appellant.

      Francis X. Murphy and Gerard Mandelbaum for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

There is no merit to defendant’s affirmative defense based on plaintiffs failure to comply with section 1312 of the Business Corporation Law. The purpose of that section is to regulate foreign corporations which are “doing business” within the State, not, as defendant would suggest, to enable the avoidance of contractual obligations.

For the reasons noted by the Appellate Division, the plaintiff is not “doing business” within this State as would render it liable to the qualification requirements of section 1312 of the Business Corporation Law. In addition, plaintiffs activity must be classified under the United States Constitution as beyond State interference (Allenberg Cotton Co. v Pittman, 419 US 20; Dahnke-Walker Co. v Bondurant, 257 US 282, 291; International Fuel & Iron Corp. v Donner Steel Co., 242 NY 224, 229).

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

Order affirmed, with costs, in a memorandum.


text:
    Arthur H. Shaffer, Appellant, v Howard C. Hirsch, Respondent, et al., Defendants.
    Argued February 17, 1977;
    decided March 31, 1977

      Herman Mark Harris and Michael Jerome Zissu for appellant.

      S. S. Goldsmith for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division, with the added observation that the record reveals that the failure to complete the examination before trial of the defendant Hirsch appears to be attributable in the main to the harassing, abusive and vulgar tactics employed by counsel for plaintiff.

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


text:
    In the Matter of Elmer Hodgkins, Respondent, v Board of Education of Central School District No. 1 of Towns of Conklin, Binghamton, Kirkwood and Vestal, Appellant.
    Argued February 14, 1977;
    decided March 31, 1977

      Frank C. Shaw for appellant.

      Richard C. Heffern and Bernard F. Ashe for respondent.
   Order reversed, with costs, and the determination of appellant board of education reinstated (see Matter of Bott v Board of Educ., 41 NY2d 265).

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


text:
    Kew Gardens Hills Housing Associates (Garage Units), Appellant, v Office of Rent Control, Respondent.
    Argued February 15, 1977;
    decided March 31, 1977

      Robert S. Fougner for appellant.

      Stephen H. Deutschmeister and Harry Michelson for respondent.
   Memorandum. We do not agree that there is a rational basis for respondent’s order here challenged. Without passing on the validity of any future claims of landlords for additional rent for such items as furniture, terraces, fireplaces and second bathrooms for which respondent alleges similar challenges may be made (cf. Matter of Plaza Mgt. Co. v City Rent Agency, 48 AD2d 129, affd 37 NY2d 837), we merely note that there is a significant difference between such items and garage space available only to a limited number of tenants of an apartment complex. This difference was recognized in a prior order, under the rent control system, concerning this same housing complex wherein it was concluded that since the right to use garage space did not attach to any particular apartment, but, rather, was transferable, it was inappropriate for the amount charged for the rental of space to be included in the computation of maximum rent for an apartment.

Of course, respondent is not bound by its prior determination under the rent control system, but, as noted by Special Term, there is no indication in the record that under the order challenged here the landlord is realizing a return upon the garage space that is equivalent to that which it had previously received from separate rentals for those facilities. Although respondent’s order is an administrative determination rather than a local law or ordinance or a rule or regulation, the order apparently reflects the policy of respondent as expressed in a departmental memorandum regarding the treatment of garage spaces under the MBR (Maximum Base Rent) system and, hence, violates the spirit, if not the letter, of the Legislature’s expressed intention not to subject landlords under the MBR system to "more stringent or restrictive provisions of regulation and control than those presently in effect” (L 1971, ch 1012).

Respondent takes the position that the landlord is adequately compensated under the MBR system by an 8Vi% return on the capital value of its property, based on assessed real estate values, including the portion thereof attributable to the garage space in question (see Administrative Code of City of New York, §Y51-5.0, subd a, par [3], as amd by Local Laws, 1970, No. 30 of City of New York, § 11). Under the law, the landlord is entitled to this return, which the legislative body considered an adequate return (cf. Matter of 340 East 57th St. Corp. v Weaver, 3 Misc 2d 356, 361, affd 2 AD2d 678). But, the enactment was not designed to reduce a landlord’s return, if such return was greater than 8Vi%. If the previous separate rentals for garage spaces allowed the landlord a separate return on this aspect of its investment, respondent’s implementation of the MBR system need not eliminate that portion of the landlord’s return. Indeed, as we have said on a prior occasion: "The thrust of the Local Emergency Rent Control Act, and particularly the 1971 amendments, * * * is to facilitate the transition from regulation to a free market by preventing imposition of stricter regulations which, due to an inadequate return to landlords, inhibit maintenance of existing housing stock” (Matter of 241 East 22nd St. Corp. v City Rent Agency, 33 NY2d 134, 144; emphasis in original). Thus, while not allowing a separate rental for garage spaces in this case may benefit the particular tenants utilizing such spaces, such benefit is at the expense of the other tenants, the landlord and, ultimately, the public at large which suffers when landlords are discouraged from maintaining property by an insufficient return on their investment.

Concluding, we note that the effect of respondent’s order is, as conceded by respondent, to pass the cost of the garage spaces in question along to all the tenants even though only a small number of such tenants have the right to use the spaces. Although those tenants not having garage space apparently have not protested respondent’s order, the fact that they must share the expense puts into question the rationality of respondent’s determination. The law implementing the MBR system speaks in terms of "housing accommodations” (see Administrative Code of City of New York, § Y51-5.0, as amd by Local Laws, 1970, No. 30 of City of New York, § 11). While ordinarily garage space that is available to all tenants may be considered a service provided as part of the housing accommodations (cf. Einhorn v 100 E. 21st St. Garage, 278 App Div 848), such space should not be regarded as a service for which all tenants can properly be charged if, as here, it is not available to all tenants. As previously noted, garage space available only to some tenants is not the same as special features of some apartments. Although not unmindful of the administrative difficulties faced by respondent, such difficulties do not constitute a sufficient basis for upholding respondent’s order in this case.

Accordingly, the order of the Appellate Division entered upon reargument should be reversed, without costs, and the judgment of Supreme Court, New York County, reinstated. The appeal from the order of the Appellate Division, entered December 11, 1975, should be dismissed as academic.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur in memorandum; Judge Wachtler taking no part.

Order reversed, etc.


text:
    In the Matter of the Arbitration between Jay A. Rosenblum, Respondent, and Government Employees Insurance Company, Appellant.
    Argued February 11, 1977;
    decided March 31, 1977

      E. Richard Rimmels, Jr., for appellant.

      Bernard Meyerson for respondent.
   Memorandum. The term "claimant” in subdivision 2 of section 675 of the Insurance Law encompasses assignees of medical claims against insurance carriers, and there is no indication in the statute that the Legislature did not intend to require insurers to arbitrate disputed claims assigned to such persons. Accordingly, the order of the Appellate Division is affirmed.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Eugene F. Clayton, Respondent, v Board of Education of Central School District No. 1 of the Towns of Conklin, Binghamton, Kirkwood and Vestal, Appellant.
    Argued February 14, 1977;
    decided March 31, 1977

      Frank C. Shaw for appellant.

      Richard C. Heffern and Bernard F. Ashe for respondent.
   October 14, 1976 determination appealed from reversed and vacated, order of the Appellate Division brought up for review modified to the extent of reinstating the August 8, 1974 determination of appellant Board of Education as to all specifications and charges except Specification 7 of Charge II, and matter remitted to Supreme Court, Broome County, with directions to remand to the Board of Education for imposition of an appropriate penalty, and, as so modified, order affirmed, with costs to appellant. The record contains substantial evidence to support the finding of the board as to the reinstated specifications and charges (see Matter of Bott v Board of Educ., 41 NY2d 265; Matter of Jerry v Board of Educ., 35 NY2d 534).

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


text:
    In the Matter of County of Suffolk et al., Respondents. Suffolk County Legislature et al., Appellants.
    Argued March 23, 1977;
    decided March 31, 1977

      Gary N. Weintraub for appellants.

      Howard E. Pachman, County Attorney, for respondents.
   Judgment, insofar as appealed from, reversed, without costs, on thé dissenting opinion by Mr. Justice Vito J. Titone at the Appellate Division, and judgment granted in favor of appellants declaring that subdivision (a) of section 223 of the Suffolk County Charter does not require the submission of a resolution appointing a Police Commissioner to the County Executive for his approval or disapproval.

Concur: Chief Judge Breitel and Judges Jasen, Jones and Fuchsberg. Judges Gabrielli, Wachtler and Cooke dissent and vote to affirm on the opinion by Presiding Justice Frank A. Gulotta at the Appellate Division.


text:
    John Bronts, on His Own Behalf and on Behalf of All Others Similarly Situated, Appellant, v William E. Kirwan, Individually and as Superintendent of the New York State Police, et al., Respondents, et al., Defendants.
    Submitted March 21, 1977;
    decided March 31, 1977
    Reported below, 55 AD2d 904.
   Motion to dismiss the appeal herein granted and appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]; Christovao v Unisul-Uniao De Coop. Transf. De Tomate Do Sul Do Tejo, 41 NY2d 338; Guaspari v Gorsky, 29 NY2d 891).


text:
    In the Matter of Leslie Canty, Jr., Appellant, v Greer Children’s Community et al., Respondents.
    Submitted February 14, 1977;
    decided March 31, 1977
    Reported below, 54 AD2d 698.
   Motion to dismiss the appeal herein granted and appeal dismissed, without costs, upon the ground it does not lie as of right.


text:
    Jacob Puro, Respondent, v Travelers '72 Company et al., Defendants, and Arthur Puro, Appellant.
    Submitted March 14, 1977;
    decided March 31, 1977
   Motion to resettle the Court of Appeals order, dated May 4, 1976, dismissing the appeal taken by defendant Arthur Puro granted to the extent that the order is amended to indicate that said defendant’s appeal was dismissed in its entirety. [See 39 NY2d 808.]


text:
    State Division of Human Rights, Appellant, v University of Rochester et al., Respondents.
    Submitted February 22, 1977;
    decided March 31, 1977
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that since an appeal lies to the Human Rights Appeals Board, the determination of the Division of Human Rights is not a final determination of an administrative agency, and hence an appeal does not lie pursuant to CPLR 5601 (subd [d]).


text:
    Village of Southampton, Appellant, v Elaine Platt, Respondent.
    Submitted February 14, 1977;
    decided March 31, 1977
    Reported below, 55 AD2d 603.
   Motion to dismiss defendant’s cross appeal granted and the cross appeal dismissed, without costs, upon the ground that there is no substantial constitutional question directly involved (CPLR 5601, subd [b], par 1); and upon the ground that the dissent at the Appellate Division is not on a question of law in favor of the party taking the cross appeal (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of Margaret B., Respondent, v Gilbert W., Appellant.
    Argued February 18, 1977;
    decided April 5, 1977

      Esther D. Curtwright, Jeffrey E. Glen and John H. Kirklin for appellant.

      W. Bernard Richland, Corporation Counsel (Diane R. Eisner and L. Kevin Sheridan of counsel), for respondent.
   Order reversed, without costs, and petitioner’s motion denied on the dissenting opinion by Mr. Justice Louis J. Capozzoli at the Appellate Division (51 AD2d 456, 461-462). Question certified answered in the negative.

Concur: Chief Judge Breitel and Judges Gabrielli, Wachtler, Fuchsberg and Cooke. Judges Jasen and Jones dissent and vote to affirm on the opinion by Mr. Justice Samuel J. Silverman at the Appellate Division (51 AD2d 456, 457-461).