text:
    Tarbert Realty, Inc., Appellant, v Three Kay Holding Corp., Inc., Respondent.
    Decided October 17, 1989

      APPEARANCES OF COUNSEL

      Philip M. Halpern for appellant.

      Mark M. Altschul for respondent.
   OPINION OF THE COURT

Memorandum.

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

Although the contract stated the buyer was to purchase the property subject to minor violations whose cost of repair totaled less than $1,000, it did not necessarily require the seller to cure major violations. The contract was ambiguous with respect to whether the buyer or the seller had the obligation to cure the major violations. Considering the affirmed factual findings — for example, the contract was amended during negotiations between sophisticated real estate dealers who were represented by counsel; the sentence clearly obligating the seller to cure all violations was stricken during negotiations; the buyer was satisfied with a cursory inspection of the building prior to down payment, and was aware of substantial violations; and the buyer was interested in a "quick flipping” of the contract — we conclude that the trial court and the Appellate Division properly interpreted the contract as giving the buyer the option not to close in the event the seller failed to cure the major violations by the closing date. Accordingly, specific performance was properly denied.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Austin Lemontree, Inc., Appellant, v New York State Liquor Authority, Respondent.
    Decided October 17, 1989

      APPEARANCES OF COUNSEL

      Richard J. Oddo for appellant.

      Sharon L. Tillman and Roberta L. Hiller for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (147 AD2d 476).

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


text:
    Arlene C. Britton, as Administratrix of the Estate of Catherine Brizinski, Deceased, Respondent, v Plaza 400 Owners Corp., Appellant-Respondent, and Otis Elevator Company, Respondent-Appellant.
    Submitted July 17, 1989;
    decided October 17, 1989
   Motion by defendant Plaza 400 Owners Corp., insofar as it addresses defendant’s cross claim for indemnity against defendant Otis Elevator Company, dismissed upon the ground that the order sought to be appealed from in that respect does not finally determine the action within the meaning of the Constitution. Motion by Plaza 400 Owners Corp. and cross motion by Otis Elevator Company for leave to appeal otherwise denied.


text:
    Andrew F. Capoccia et al., Appellants, v Dominick J. Brognano, Respondent.
    Submitted July 3, 1989;
    decided October 17, 1989
   Motion for leave to appeal dismissed for failure 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:
    In the Matter of Michael F. Cerami, Respondent, v Rochester City School District, Appellant. Workers’ Compensation Board, Respondent.
    Submitted July 17, 1989;
    decided October 17, 1989
   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 the Claim of Helen Kokoni, Respondent. National Freelancers, Inc., Appellant; Thomas F. Hartnett, as Commissioner of Labor, Respondent.
    Submitted July 10, 1989;
    decided October 17, 1989
   Motion for leave to appeal dismissed upon the ground that movant has failed to comply with section 500.11 (d) (l).(iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Frank A. Vesey, Appellant, v Macys, Herald Square, Respondent.
    Submitted July 17, 1989;
    decided October 17, 1989
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the order of the Appellate Division entered in an action commenced in Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Barbara DeLyra, Respondent, v Raymund DeLyra, Appellant.
    Argued September 8, 1989;
    decided October 19, 1989
    APPEARANCES OF COUNSEL

      Joseph C. Leshen and Philip F. Alba for appellant.

      Gary F. Westfal for respondent.
   OPINION OF THE COURT

Memorandum.

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

The parties were married on October 14, 1977, and lived together as husband and wife for seven years. In 1984, plaintiff brought this matrimonial action seeking a divorce. Defendant counterclaimed for a declaration that the marriage was void ab initio because at the time of the wedding (see generally, Domestic Relations Law arts 2, 3) in 1977, plaintiff was still married to her former husband (see, Domestic Relations Law § 140 [a]). Supreme Court declared the parties’ marriage void, finding certain defects with respect to plaintiff’s Dominican Republic divorce decree which rendered the decree ineffective to terminate the prior marriage. After declaring the nullity of the parties’ marriage, Supreme Court ordered that the parties’ marital property be equitably distributed pursuant to Domestic Relations Law § 236 (B) (5). The Appellate Division affirmed.

Domestic Relations Law § 236 (B) (5) (a) provides that a court shall make an equitable distribution of marital property in an action "wherein all or part of the relief granted is * * * the * * * declaration of the nullity of a marriage”. The Appellate Division properly concluded that under the facts of this case, where the parties’ void marriage has been declared a nullity, their marital property is subject to equitable distribution. Accordingly, the certified question is answered in the affirmative.

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

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


text:
    EDP Medical Computer Systems, Inc., Appellant, v Sears, Roebuck & Co., Respondent.
    Submitted July 24, 1989;
    decided October 19, 1989
   Motion for leave to appeal from so much of the Appellate Division order as affirmed the severance and dismissal of a portion of the fourth cause of action 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 from so much of the Appellate Division order as severed and dismissed the third cause of action denied.


text:
    Joseph M. Feigen et al., Appellants, v Advance Capital Management Corp. et al., Respondents.
    Submitted July 17, 1989;
    decided October 19, 1989
   Motion for leave to appeal from so much of the order sought to be appealed from as dismissed certain causes of action asserted against defendants Advance and Skelgas dismissed upon the ground the order sought to be appealed does not finally determine the action with respect to these defendants; motion for leave to appeal otherwise denied.


text:
    In the Matter of Frank Rodriguez, Appellant, v Probation Department, Bronx County, Respondent.
    Submitted July 24, 1989;
    decided October 19, 1989
   Motion dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion for leave to appeal from the order of the Appellate Division denying leave to prosecute an appeal in that court as a poor person.


text:
    The People of the State of New York, Appellant, v Lamont Victor, Also Known as Victor Townes, Also Known as Victor Lamont, Respondent.
    Decided October 24, 1989

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Kenneth G. Crowley of counsel), for appellant.

      Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified and the case remitted to Supreme Court, New York County, for a hearing on defendant’s motion to suppress evidence.

This case presents the same issue as People v Giles (73 NY2d 666), albeit with one notable difference: once Supreme Court, New York County, denied defendant’s motion to suppress, defendant pleaded guilty to two counts of criminal possession of a weapon in the third degree and one count of criminal possession of a controlled substance in the seventh degree, rather than proceeding to trial as did his codefendant Giles. In People v Giles (supra), we held that the Appellate Division did not have the power to rely upon later-developed trial evidence to retrospectively decide the merits of an unlitigated suppression motion. Therefore, the Appellate Division erred in granting defendant’s motion to suppress and dismissing the indictment by relying upon the facts as established by a trial record rather than a suppression hearing record. That error was compounded in this case, however, when the court failed to confine itself to the facts and law before it and relied upon the facts developed in a wholly separate case.

We remit this case directly to Supreme Court, for a hearing on defendant’s motion to suppress evidence. If defendant prevails, then the indictment against him should be dismissed, or if the People prevail, then the judgment should be amended to reflect that determination.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified and case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Dorothy M. Hermans, Appellant, v Earl D. Hermans, Also Known as E. Douglas Hermans, Respondent.
    Argued September 14, 1989;
    decided October 24, 1989

      APPEARANCES OF COUNSEL

      Neil S. Weiner for appellant.

      Val M. Serbalik for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to appellant, by reinstating the order for spousal maintenance and, as so modified, affirmed.

In this proceeding brought under article 4 of the Family Court Act for an increase of an alimony award included within a 1966 judgment of divorce, the Family Court had the power to grant relief to the respondent in the form of an order decreasing or even terminating the alimony obligation, notwithstanding the absence of a pending formal request for such relief (see, Domestic Relations Law § 236 [A]; see also, § 236 [B]). Inasmuch as respondent had initially applied for a downward modification, petitioner had adequate notice that such relief was a possibility. Thus, in the absence of some showing of actual prejudice, petitioner cannot complain because the Family Court terminated respondent’s alimony obligation even after respondent had withdrawn his formal request for such relief (see, CPLR 3017 [a]).

Nevertheless, the courts below applied the wrong standard in terminating the alimony award. The Family Court based its decision in part on "changes in the law since 1966[,] evidencing] a change in attitude and thinking” and the provisions of the current Domestic Relations Law permitting maintenance awards that are limited in duration (Domestic Relations Law § 236 [B] [1] [a]). In support of their conclusions that indefinite alimony payments were unnecessary, both courts below also cited the short duration of the parties’ marriage, petitioner’s age at the time of the divorce and the fact that she was then employed. Finally, the Appellate Division noted that petitioner currently holds full-time employment.

Under the case law applicable to this 1966 divorce judgment, an alimony award may be modified only upon a clear and convincing showing of a substantial change in circumstances (Brody v Brody, 22 AD2d 646, affd 19 NY2d 790; see, Kover v Kover, 29 NY2d 408, 413; see also, Domestic Relations Law § 236 [B] [9] [b]). This standard requires a particularized showing of facts concerning the personal and financial circumstances of the parties both at the time of the original divorce settlement and at the present time. The changes in the prevailing social and legal climate that may have occurred since the parties were divorced do not satisfy this standard. Similarly, the requirement of a substantial change in circumstances cannot be satisfied solely by reference to the other personal factors on which the courts below relied, since they are not "changes” and already existed or were reasonably foreseeable at the time of the entry of the divorce judgment.

Indeed, the Hearing Examiner expressly found "there is no proof of the change in circumstances.” Thus, the exercise of the authority to vacate the alimony award was erroneous.

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

Order modified, etc.


text:
    In the Matter of the Arbitration between Allcity Insurance Company, Appellant, and Donato Vitucci, Respondent.
    Decided October 24, 1989

      APPEARANCES OF COUNSEL

      Adolph Salib and Anthony J. McNulty for appellant.

      Joseph Greene and Edward C. Fernbach 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. Assuming without deciding that a stay of arbitration is available (see, CPLR 7503 [b]; Matter of City School Dist. v Tonawanda Educ. Assn., 101 AD2d 1011, affd 63 NY2d 846), petitioner’s application in this case was untimely (CPLR 7503 [c]).

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


text:
    In the Matter of Willie John B., Jr. Cardinal McCloskey Children’s and Family Services, Respondent, v Willie B., Appellant.
    Submitted August 21, 1989;
    decided October 24, 1989
   Motion for reargument or for amendment of remittitur denied. [See, 74 NY2d 77.]


text:
    In the Matter of Donald Chusid et al., as Executors of Anne Chusid, Deceased, Respondents, v Benjamin H. Wright et al., Appellants.
    Decided October 24, 1989
   Appeal taken pursuant to CPLR 5601 (d) from a final judgment entered in New York City Civil Court on June 28, 1989 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the proceeding did not originate in a court specified in CPLR 5601 (a).


text:
    The People of the State of New York, Respondent, v Michael Coveney, Appellant.
    Submitted August 28, 1989;
    decided October 24, 1989
   Motion for leave to appeal pursuant to CPLR 5602 dismissed upon the ground that the Court of Appeals lacks jurisdiction to entertain the motion for leave to appeal from an order entered in a criminal action.


text:
    Finance Investment Company (Bermuda) Limited, Appellant, v Robert M. Gossweiler et al., Respondents, et al., Defendants.
    Submitted June 26, 1989;
    decided October 24, 1989
   Motion for reargument granted and upon reargument motion for leave to appeal denied. [See, 74 NY2d 650.]


text:
    F.W.E. Stapenhorst, Inc., Respondent, v Public Service Commission of the State of New York, Appellant, and New York State Electric & Gas Corporation, Defendant.
    Submitted July 24, 1989;
    decided October 24, 1989
   On the court’s own motion appeal taken as of right by defendant dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.


text:
    David S. Hall, Appellant, v United Parcel Service of America, Inc., et al., Respondents. (Appeal No. 1.) (And Another Title.) (Appeal No. 2.)
    Submitted July 17, 1989;
    decided October 24, 1989
   Motion for leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order dated March 30, 1988 insofar as it denied plaintiffs motion to amend his 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 otherwise granted. Motion for leave to appeal from the Appellate Division order which affirmed Supreme Court’s order dated October 4, 1988 granted.


text:
    In the Matter of Alice Scolamiero, Respondent, v Nancy Cincotta, Individually and Doing Business as Status Quo, Appellant.
    Submitted July 24, 1989;
    decided October 24, 1989
   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.


text:
    Elmer Van Wagner et al., Respondents, v Hyde Park Fire and Water District et al., Appellants.
    Decided October 24, 1989
   Appeal 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:
    The People of the State of New York, Respondent, v David Swinson, Appellant.
    Argued October 13, 1989;
    decided October 26, 1989

      APPEARANCES OF COUNSEL

      Sarah Berger and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Donald J. Siewert and Ellyn Polshek of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. The only issue presented on appeal was not preserved for review by this court (see, CPL 470.05 [2]).

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


text:
    Jorge Caceras, Appellant, v George Zorbas, Respondent.
    Decided October 26, 1989
    APPEARANCES OF COUNSEL

      Stanley A. Landers for appellant.

      Alice Spitz for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured in the course of his employment and instituted this action against defendant, who was both the owner of the building where the accident happened and the president and sole stockholder of plaintiff’s corporate employer (the lessee of the premises). The complaint did not allege workers’ compensation benefits were unavailable. In fact, plaintiff applied for and received such benefits. The defendant’s original answer did not assert the Workers’ Compensation Law as an affirmative defense but in November 1987, after a jury had been selected, defendant moved to amend his answer to assert that workers’ compensation was plaintiffs only remedy (see, Heritage v Van Patten, 59 NY2d 1017). Plaintiff did not deny the statute’s application to the case.

Supreme Court denied the motion to amend on the ground of laches. On appeal the Appellate Division reversed holding that under our decision in Murray v City of New York (43 NY2d 400), the motion to amend must be granted, even when tardily asserted.

While we agree with the Appellate Division that it was error to deny the motion to amend, we do not agree that the trial court was without discretion in the matter. The trial court could have denied the motion if plaintiff demonstrated prejudice resulting from defendant’s delay. Plaintiff was required to establish prejudice accruing to him as a consequence of defendant’s failure to timely assert the defense, and to include a showing that the prejudice could have been avoided if the defense had been timely asserted. He failed to make such a showing here and cannot claim prejudice or surprise because he was aware of his employment status from the outset and had received workers’ compensation benefits.

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

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


text:
    Tilles Investment Company, Appellant, v Town of Huntington, Respondent.
    Argued September 7, 1989;
    decided October 26, 1989

      APPEARANCES OF COUNSEL

      Charles G. Moerdler and Burton N. Lipshie for appellant.

      Arlene R. Lindsay, Town Attorney (Patrick A. Sweeney of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff owns two contiguous parcels of real property totaling approximately 52 acres of land. The property is located at the southwest corner of the intersection of the eastbound service road of the Long Island Expressway and Walt Whitman Road in Melville, New York. The property is currently zoned R-40 residential and may be developed with single-family homes built on lots no less than one acre in size. The property is undeveloped farmland and is bounded on three sides by primarily residential districts. Immediately to the west of plaintiff’s property is more vacant land, also zoned R-40 residential. Immediately to the south, there is another vacant field. Further to the south and on the west side of Walt Whitman Road, there is a small development of houses on small lots. Still further south, a residential condominium is under development on a parcel originally zoned R-40, but which, in a prior unrelated action, was ordered rezoned by Supreme Court. To the northwest, across the Long Island Expressway, there is another R-40 district, which has been developed with a residential community. Only the areas across Walt Whitman Road to the east and northeast are commercial and industrial.

Plaintiff’s contention that the continued R-40 zoning is invalid because it is not in accordance with a comprehensive plan (Town Law § 263) must be rejected. While the statutory requirement serves to protect individuals from arbitrary action on the part of local zoning authorities (Udell v Haas, 21 NY2d 463, 469), it mandates "comprehensiveness of planning * * * not slavish servitude to any particular comprehensive plan” (Matter of Town of Bedford v Village of Mount Kisco, 33 NY2d 178, 188). The trial evidence established that plaintiff’s property was zoned residential in accordance with the Town’s master plan, as amended in 1966. Plaintiff has not demonstrated that the Town has so deviated from its original plan that a comprehensive plan is no longer in existence. Although there have been some 70 ad hoc changes to the area of the master plan containing plaintiff’s property, the development of the areas surrounding plaintiff’s property still reflects the Town’s original and continued intention to allow the east side of Walt Whitman Road to be commercially developed while keeping the west side residential.

Plaintiff further contends that the Zoning Code of the Town of Huntington is unconstitutional as applied to its property because continued R-40 zoning of the property is not rationally related to a valid government interest. To succeed on this claim, plaintiff must rebut the presumption of the constitutionality of the legislative enactment beyond a reasonable doubt (Williams v Town of Oyster Bay, 32 NY2d 78, 81). This presumption of constitutionality is not rebutted if the residential classification is even "fairly debatable” (Shepard v Village of Skaneateles, 300 NY 115, 118). Plaintiff has not met this high burden. The fact that two other parcels in the Town of Huntington were rezoned for commercial or higher density residential development does not render the continued R-40 zoning of plaintiff’s 52-acre property arbitrary or irrational. Rather as the Appellate Division concluded, this R-40 zoning is consistent with the Town’s comprehensive plan and rationally serves the Town’s continued interest in fostering residential development.

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

Order affirmed, with costs, in a memorandum.

       Plaintiff has abandoned its alternate argument that the zoning ordinance is confiscatory as well as its claim for damages and attorneys’ fees pursuant to 42 USC §§ 1983 and 1988.


text:
    The People of the State of New York, Respondent, v John Douglas Zerbst, Appellant.
    Decided October 26, 1989

      APPEARANCES OF COUNSEL

      Michael J. Hutter for appellant.

      Michael A. West, District Attorney, 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 for the reasons stated in so much of the memorandum at the Appellate Division as concluded that the evidence adduced at trial from both victims was sufficient to corroborate the defendant’s confession (147 AD2d 844, 845-846).

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


text:
    In the Matter of Anonymous, Appellant, v Grievance Committee for the Second and Eleventh Judicial Districts of the State of New York et al., Respondents.
    Decided October 26, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that (1) the order of the Appellate Division, insofar as it affirmed the denial of a motion for a preliminary injunction, does not finally determine the action within the meaning of the Constitution, and (2) as to the remainder of the order of the Appellate Division, no substantial constitutional question is directly involved.


text:
    In the Matter of Anonymous, Appellant, v Charles F. Cacciabaudo, as a Judge of the County Court, Suffolk County, et al., Respondents.
    Decided October 26, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the issues presented have become moot.


text:
    Board of Education of the East Syracuse-Minoa Central School District et al., Appellants, et al., Plaintiffs, v Commissioner of Education of the State of New York et al., Respondents.
    Submitted July 31, 1989;
    decided October 26, 1989
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as granted partial summary judgment to the Board of Cooperative Educational Services for the sole supervisory district of Onondaga-Cortland-Madison Counties, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action with respect to that defendant. Motion for leave to appeal otherwise denied.

Judge Hancock, Jr., taking no part.


text:
    Kenneth Kelchner, Individually and as Father and Natural Guardian of Jennifer Kelchner, an Infant, Respondent, v John Deere Company et al., Appellants and Third-Party Plaintiffs-Appellants. Joan Kelchner et al., Third-Party Defendants-Respondents.
    Submitted July 17, 1989;
    decided October 26, 1989
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which affirmed the denial of defendants and third-party plaintiffs’ motion for renewal and rehearing, and insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the grant of summary judgment dismissing the counterclaim as against Kenneth Kelchner, dismissed upon the ground that that order and portion of an order do not finally determine the action within the meaning of the Constitution; motion otherwise denied.


text:
    In the Matter of Cristina Decker, Appellant, v Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted September 11, 1989;
    decided October 26, 1989
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, 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 (CPDR 5601 [a], [b]).


text:
    In the Matter of Celeste Pilgrim, Appellant, v Commissioner of the Department of Correction of the City of New York, Respondent.
    Submitted August 7, 1989;
    decided October 26, 1989
   Motion for leave to appeal dismissed upon the ground that movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    The People of the State of New York, Respondent, v Leonard Russell, Appellant.
    Argued October 13, 1989;
    decided November 16, 1989
    APPEARANCES OF COUNSEL

      Hilliard Wiese, Philip L. Weinstein and Marsha Tabenhaus for appellant.

      Robert M. Morgenthau, District Attorney (Ralph Fabrizio and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a bench trial, of burglary in the first degree (Penal Law § 140.30 [2]) and sentenced to an indeterminate term of from 5 to 15 years. Defendant’s conviction was affirmed by order of the Appellate Division.

The question presented by this appeal is whether the Trial Judge abused his discretion in refusing to grant defense counsel’s request for a mental competency examination of the defendant (CPL 730.30 [1]). Defense counsel first requested a competency examination at the close of the People’s case and he renewed his request after the defendant’s conviction but before his sentencing. The defendant argues that his attorney’s application for a competency hearing should have been granted since it was made in good faith and contained factual allegations that were sufficient to raise the possibility that defendant might be incompetent to stand trial.

Under the facts of this case, we find that the Trial Judge -did not abuse his discretion in refusing to order a competency examination. The Judge here had examined the defendant in connection with his decision to represent himself at trial. The Judge granted the defendant’s pro se request and later reappointed counsel after the defendant decided he no longer wanted to represent himself. In addition, the Judge instructed the defendant on the legal implications of his request for a bench trial and then permitted the defendant to waive his right to trial by jury. These direct encounters with the defendant, when considered in combination with the Judge’s overall ability to observe the defendant at trial, gave the Trial Judge ample opportunity to assess the defendant’s ability to assist in his own defense. We conclude, therefore, that there is no basis for upsetting the Trial Judge’s determination that a competency hearing was not warranted in this case.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Keith Keeton, Appellant.
    Argued October 12, 1989;
    decided November 16, 1989
    APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for appellant.

      Howard R. Relin, District Attorney (Elizabeth Clifford of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant, Keith Keeton, and his brother, Ben, engaged in a street fight with brothers Thomas and James Pearson, resulting in the hospitalization of both Keetons and Thomas Pearson, as well as the death of a bystander. Each set of brothers described the other as the aggressor, and each claimed to have acted in self-defense. The Keetons were charged with (and acquitted of) the bystander’s murder as well as assault upon Thomas Pearson. James Pearson was charged with assault upon Ben Keeton; no charges were filed as the result of defendant’s injury. After he was indicted, defendant unsuccessfully requested the appointment of a special prosecutor, maintaining that because defendant was witness to his brother’s assault by James Pearson, the District Attorney should be disqualified from simultaneously prosecuting him. Defendant’s sole contention on appeal from his assault conviction is that the trial court committed reversible error by denying his request.

As a general rule, courts "should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence.” (Matter of Schumer v Holtzman, 60 NY2d 46, 55.) An appearance of impropriety alone might not be grounds for disqualification. (Id.) Here, defendant has failed to demonstrate that the District Attorney’s simultaneous prosecutions actually prejudiced him.

In that defendant was not a witness in the Pearson prosecution, as was assured in advance that he would not be, we need not consider whether there is any merit in his contention that his role as a witness created an impermissible conflict for the District Attorney. No abuse of confidence is claimed. As the Appellate Division observed, "there is no danger that the threat of subsequent prosecution exerted pressure on anyone to testify adversely to defendant. Thomas Pearson, who testified against defendant, was not charged in this incident; the target of the subsequent prosecution, James Pearson, did not testify against defendant.” (144 AD2d 1008, 1009.)

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Willie Gamble, Appellant.
    Argued October 12, 1989;
    decided November 16, 1989

      APPEARANCES OF COUNSEL

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

      Howard R. Relin, District Attorney (Robert Mastrocola of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial evidence showed that defendant was apprehended by a parking garage security officer shortly after the complaining witness saw him in a car attempting to remove a stereo speaker. While the parties were in the garage waiting for the police to arrive, defendant, who was standing five feet from the complainant and staring directly at her, said "If you f_me up with the police, I will f_you up.” The evidence also established that defendant continued to stare and curse at the complainant and to make "physical profane statements” to her. The complainant testified that she understood the defendant’s words to be a sexual threat and that as a result, she knew she had a decision to make about the possible consequences of cooperating with the police.

Defendant’s sole argument on this appeal is that this evidence is legally insufficient to sustain his conviction of intimidating a victim or witness in the third degree (Penal Law § 215.15 [1]). Specifically, he contends that this evidence, which he characterizes as entirely circumstantial, is legally insufficient because it is equivocal.

Contrary to defendant’s contention, his statement constituted an element of the crime and therefore is direct evidence. Viewing this statement and the other evidence adduced at trial in the light most favorable to the People (People v Contes, 60 NY2d 620, 621), it is sufficient to establish that defendant knew the complainant possessed information relating to a crime and "[w]rongfully * * * attempted] to compel [her] to refrain from communicating such information to * * * [a] police officer * * * by means of instilling * * * a fear that [he would] cause physical injury to [her]” (Penal Law § 215.15 [1]).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Faye Johnson; Appellant.
    Argued October 11, 1989;
    decided November 16, 1989

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Yolanda Villa and Howard K. Broder of counsel), for appellant.

      Howard R. Relin, District Attorney (Alan Cruikshank of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum of the Appellate Division (148 AD2d 940).

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


text:
    In the Matter of Michael Barrett, Respondent, v Robert M. Morgenthau, as District Attorney of New York County, et al., Appellants.
    Argued October 18, 1989;
    decided November 16, 1989

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Morrie I. Kleinbart and Marc Frazier Scholl of counsel), appellants pro se.

      Robert Selcov, Deborah Schneer and David C. Leven for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner commenced this article 78 proceeding to compel production of certain documents after his Freedom of Information Law request, initially directed to the District Attorney, was denied in a letter signed by the District Attorney’s records access officer. Inasmuch as the District Attorney failed to advise petitioner of the availability of an administrative appeal in the office (see, 21 NYCRR 1401.7 [b]) and failed to demonstrate in this proceeding that procedures for such an appeal had, in fact, even been established (see, Public Officers Law § 87 [1] [b]), he cannot be heard to complain that petitioner failed to exhaust his administrative remedies.

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

Order affirmed, without costs, in a memorandum.


text:
    Eugene O’Neil et al., Appellants, v Metropolitan Transit Authority et al., Respondents.
    Argued October 18, 1989;
    decided November 16, 1989
   Appeal dismissed, without costs, for mootness.


text:
    Gola Supermarket, Inc., et al., Respondents, v Travelers Indemnity Company, Appellant, et al., Defendant.
    Submitted August 7, 1989;
    decided November 16, 1989
   Motion for leave to appeal dismissed, with $100 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Cross motion for imposition of sanctions against defendant-appellant denied.


text:
    Powers Chemco, Inc., Appellant, v Federal Insurance Co., Respondent.
    Argued October 18, 1989;
    decided November 21, 1989
    APPEARANCES OF COUNSEL

      George Berger, Judith S. Roth, Emery M. Schweig and David B. Schacher for appellant.

      David A. Schulz, John J. Sheehy, Nancy A. Brown and Jane F. Golden for respondent.

      Paul R. Koepff, Thomas W. Brunner, James M. Johnstone and John W. Cavilia for Insurance Environmental Litigation Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

This appeal involves a general comprehensive liability insurance policy containing the same "pollution exclusion” clause, and the same exception for "sudden and accidental” dispersals, that we construed in Technicon Elecs. Corp. v American Home Assur. Co. (74 NY2d 66). In Technicon, we noted that the exception to the exclusion for liability arising from pollution is not operative unless the occurrence in question was both "sudden” and "accidental” (id., at 75).

Plaintiff here is seeking a declaration that defendant insurer is obligated to pay "all expenses which plaintiff has paid or will have to pay” in connection with a consent order issued by the Department of Environmental Conservation to decontaminate and restore its property. The action arose out of the leaching of hazardous wastes which were allegedly disposed by plaintiff’s predecessor’s: (1) "burying drums containing the wastes,” (2) "dumping waste liquids from 55-gallon drums into open pits and then disposing of the drums in the pit,” and (3) discharging "wastes through a pipe into pits at the site.” In other words, plaintiff seeks to be indemnified for intentional discharges of waste, leading to the ultimate pollution of the environment. Such an "occurrence,” resulting from purposeful conduct, cannot be considered "accidental” under our analysis in Technicon (id.).

We also reject plaintiff’s contention that since it was not the actual polluter, but merely inherited the problem from the prior landowner, the pollution exclusion clause cannot bar its present insurance claim. Simply put, there is nothing in the language of the pollution exclusion clause to suggest that it is not applicable when liability is premised on the conduct of someone other than the insured. Plaintiff’s reliance on Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co. (34 NY2d 356) is misplaced, since the analysis in that case depended both on a potential ambiguity in the terms of the policy and the conclusion that the insurer’s contrary construction would all but negate the coverage offered by the policy as a whole. Neither of these concerns is presented in this case. As we noted in Technicon, the exclusion clause is "unambiguously plain and operative” (74 NY2d, at 71), and represents only a single discrete exception to the insurer’s obligation to indemnify under the policy.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Board of Education of the Watertown City School District, Respondent, v Watertown Education Association, Appellant.
    Argued October 19, 1989;
    decided November 21, 1989
    APPEARANCES OF COUNSEL

      Gerard John DeWolf Bernard F. Ashe and Rocco A. Solimando for appellant.

      Paul W. Brown for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition to stay arbitration denied.

Respondent, Watertown Education Association, sought arbitration alleging that petitioner, the Board of Education of the Watertown City School District, had violated exhibit B of the parties’ collective bargaining agreement (salary schedule) by failing to distribute moneys received by petitioner, pursuant to Education Law § 3602 (27), to one of respondent’s members. Specifically, respondent alleged that these funds (EIT funds) were part of the teacher’s salary for the school year and that a dispute concerning such moneys was subject to arbitration under the parties’ collective bargaining agreement. Petitioner responded by commencing this proceeding under CPLR 7503 to stay arbitration and vacate respondent’s demand on the ground that the parties’ "Excellence in Teaching” moneys agreement (EIT agreement) is separate and distinct from the parties’ collective bargaining agreement, and that disputes pertaining to EIT funds are not subject to arbitration. Supreme Court vacated the demand for arbitration and granted the petition staying arbitration, concluding that the labor dispute between petitioner and respondent was not arbitrable.

If it is determined that the arbitration clause is broad enough to encompass the subject matter of the dispute, "[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator” (Board of Educ. v Barni, 49 NY2d 311, 314; see, Matter of Franklin Cent. School [Franklin Teachers Assn.], 51 NY2d 348, 355; Board of Educ. v Cattaraugus Teachers’Assn., 84 AD2d 685, affd 55 NY2d 951). In addition, CPLR 7501 specifically prohibits a court from "considering] whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute” (see, Mineola Union Free School Dist. v Mineola Teachers Assn., 46 NY2d 568, 572).

Applying these rules, we conclude that the parties’ agreement to arbitrate is clear and unequivocal, and that if there exists some dispute as to the coverage of the substantive provisions of the contract, this dispute is for the arbitrator to resolve (see, Board of Educ. v Barni, supra, at 314-315; Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669, 671). Article XV of the collective bargaining agreement at issue contains a broad arbitration clause which defines an arbitrable "grievance” to include — "[A] claim by any party to the contract that there has been a violation, misinterpretation or misapplication of: (a) law; (b) the employment contract; (c) by-laws and written policies or any unilateral attempt to change the terms and conditions of employment.” By focusing solely on the separate terms of the EIT agreement, instead of simply resolving whether the dispute fell within the scope of the arbitration provision of the collective bargaining agreement, Supreme Court improperly injected itself into the determination of the underlying merits of this arbitrable contract dispute (see, Mineola Union Free School Dist. v Mineola Teachers Assn., supra, at 572).

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

Order reversed, etc.


text:
    In the Matter of the Claim of James Deas, Claimant, v New York City Housing Authority et al., Respondents. Workers’ Compensation Board, Appellant.
    Decided November 21, 1989
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Iris A. Steel of counsel), for appellant.

      Paul A. Isaacson and Raymond C. Green for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the decision of the Workers’ Compensation Board reinstated.

Workers’ Compensation Law § 25 (3) (c) (since amended with minor changes and renumbered as Workers’ Compensation Law § 25 [3] [d]) provides that an employer or insurer that fails to make timely payment of a workers’ compensation award must pay a penalty "to the injured worker or his or her dependents.” A penalty was assessed against respondent State Insurance Fund for not timely reimbursing the Housing Authority even though the employer paid claimant’s full wages pending determination and reimbursement of the award. The State Insurance Fund expressly conceded on the record an obligation to pay the penalty but argued it should be paid to the employer Housing Authority.

In view of the concession, we need not pass on whether the penalty provision is implicated at all, for if it is, the payment by the statute’s plain command must go to the claimant (see, Workers’ Compensation Law § 25 [3] [c]).

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

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


text:
    Paul Brown et al., Respondents, v Two Exchange Plaza Partners, Defendant, and George A. Fuller Company, Defendant and Third-Party Plaintiff-Respondent. Heydt Contracting Corp. et al., Third-Party Defendants-Respondents; A & M Wallboard Co., Third-Party Defendant-Appellant; Heydt Contracting Corporation, Fourth-Party Plaintiff-Respondent; Walter F. Ulma, Inc., et al., Fourth-Party Defendants-Respondents.
    Submitted August 14, 1989;
    decided November 21, 1989
   Motion for leave to appeal granted. Motion for a stay granted. Motion to strike so much of the submissions of Central Furring and Dry Wall Company as seeks dismissal denied.


text:
    The People of the State of New York ex rel. Michael Dennard, Appellant, v Andrew P. Meloni, as Monroe County Sheriff, et al., Respondents.
    Submitted July 31, 1989;
    decided November 21, 1989
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see, People ex rel. Wilder v Markley, 26 NY2d 648). Motion for assignment of counsel dismissed as academic.


text:
    Oakbridge Realty Corp. et al., Appellants, v Jericho Water District et al., Defendants, and Wormald U.S., Appellant.
    Submitted September 11, October 2, 1989;
    decided November 21, 1989
   Motion for leave to appeal [by defendant-appellant] dismissed for failure to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).

Motion for leave to appeal [by plaintiffs-appellants] denied.


text:
    Seyed M. Raji et al., Respondents-Appellants, v Bank Sepah-Iran et al., Appellants-Respondents.
    Submitted August 7, 1989;
    decided November 21, 1989
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. On the court’s own motion, cross appeal dismissed, without costs, upon the ground that plaintiffs, having stipulated to reducing the amount of damages to which they are entitled, are not aggrieved by the modification for purposes of appeal (see, CPLR 5511; Smith v Hooker Chem. & Plastics Corp., 69 NY2d 1029; Dudley v Perkins, 235 NY 448).


text:
    Charlene S. Shrauger, Respondent, v Robert C. Shrauger, Defendant, and Dorothy B. Wager, Appellant.
    Submitted November 6, 1989;
    decided November 21, 1989
   Motion to vacate September 22, 1989 order of dismissal denied. [See, 74 NY2d 844.]


text:
    Thomas J. Monteleone, Individually and as Father and Natural Guardian of Thomas C. Monteleone, an Infant, Appellant, v Incorporated Village of Floral Park, Respondent, et al., Defendants.
    Decided November 28, 1989

      APPEARANCES OF COUNSEL

      Joseph Kelner for appellant.

      Mark S. Moroknek for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Plaintiff Thomas C. Monteleone was injured when a low-lying branch overhanging the sidewalk hit him in the eye, while he was walking on a sidewalk in the respondent Village of Floral Park. Thomas’ father then commenced this negligence action on his son’s behalf. Section 57-1 of the Code of the Village of Floral Park, patterned after the prior notice statute in Village Law §6-628, provides that no civil action shall be brought against the Village as a result of an accident caused by a sidewalk "being defective * * * unsafe, dangerous or obstructed” unless the Village Clerk had received written notice of the condition prior to the occurrence of the accident, and the Village failed to correct the condition within a reasonable period. The courts below properly dismissed plaintiff’s complaint on the ground that the low-lying tree branch was an obstructed condition within the meaning of the Village’s prior notice statute, and the Village had received no notice of that condition, as required, before plaintiff’s accident. Our decisions in Alexander v Eldred (63 NY2d 460) and Doremus v Incorporated Vil. of Lynbrook (18 NY2d 362) do not hold to the contrary. In those cases, we refused to hold that a defective or missing traffic sign was a defective condition within the meaning of the prior notice statutes. We also emphasized that prior written notice statutes should be strictly construed and refer "to physical conditions in the streets or sidewalks * * * which do not immediately come to the attention of the village officers unless they are given actual notice thereof.” (Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366, supra.) Because this low-lying branch creates a condition which would not immediately come to the attention of the Village officers unless they were given actual notice thereof, the prior notice statute applies.

Moreover, the Village’s planting of, and subsequent failure to prune, the tree that injured plaintiff did not constitute affirmative negligence rendering the Village’s prior notice statute inapplicable (see, Muszynyski v City of Buffalo, 33 AD2d 648, affd on opn below 29 NY2d 810). At most, the Village’s conduct amounted to nonfeasance (compare, Radicello v Village of Spring Val., 115 AD2d 466 [municipality’s mere failure to remove snow and ice from sidewalk is not affirmative negligence], with Siddon v Fishman Co., 65 AD2d 832, lv denied 46 NY2d 714 [prior notice statute requirement held inapplicable where plaintiff was injured climbing over snow piled by municipality between parking meters]).

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

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


text:
    The People of the State of New York, Respondent, v Eugene Phelps, Appellant.
    Argued October 13, 1989;
    decided November 28, 1989

      APPEARANCES OF COUNSEL

      Robert B. Hallborg, Jr., Linda S. Reynolds and Barbara Davies Eberl for appellant.

      Kevin M. Dillon, District Attorney (Susan D. Nusbaum and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At the request of defense counsel made during a proceeding to sentence defendant for sexual abuse, the trial court directed that, pursuant to CPL article 730, the director of Community Mental Health Services should cause an examination to be made of defendant to determine his mental competency. The director then orally designated a qualified psychiatrist and a certified psychologist to perform the examination. The two doctors reported defendant fit. When asked by the trial court, defense counsel said he had no objection to the court’s adopting the doctors’ reports and making them a part of the record. On appeal from his conviction, however, defendant contended that the designation of a psychiatrist and a psychologist, rather than two qualified psychiatrists (see, CPL 730.20 [1]), rendered the competency examination defective.

While CPL 730.20 (1) provides that the director receiving an examination order "must designate two qualified psychiatrists” to examine the defendant, it also permits one of the two experts conducting the examination to be a psychologist when the facility director "is of the opinion that the defendant may be mentally defective”. In the absence of any contrary evidence, we presume that the director’s designation of a psychiatrist and a psychologist to examine defendant was regular and in accordance with statutory directive (Richardson, Evidence § 72, at 49 [Prince 10th ed]). In that defendant’s objection was raised only on appeal from his conviction, there is no factual record sufficient to permit review of his present contention.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Anthony Wharton, Appellant.
    Argued October 12, 1989;
    decided November 28, 1989

      APPEARANCES OF COUNSEL

      Richard Joselson and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

An undercover police officer carrying out his official duties on a Brooklyn street, in what is commonly referred to as the law enforcement technique of a narcotics "buy and bust” operation, purchased two foil packets of cocaine from defendant. The undercover purchasing officer radioed a description of defendant to the backup team of officers, who immediately responded to make the arrest at the site of the criminal transaction. Within five minutes, the purchaser-undercover police officer drove past that site and viewed defendant being detained at curbside by the backup arresting officers, an observation relied on by the suppression court in its ruling. Approximately three hours later, the purchaser-undercover officer also identified defendant through a one-way mirror at the local precinct as the person who sold him the cocaine.

A pretrial motion to suppress the identification testimony of the purchaser-undercover police officer was denied without a hearing. The officer testified at trial about the criminal transaction and identified the defendant. Defendant was thereafter convicted by a jury of criminal sale and criminal possession of a controlled substance in the third degree.

We conclude that the trial court did not err by denying defendant’s motion for a Wade hearing. It is not disputed that the identification was made by a trained undercover officer who observed defendant during the face-to-face drug transaction knowing defendant would shortly be arrested. Thus, there is evidence in the record to support the determination of the courts below that the officer’s observation of defendant at the station house approximately three hours later was not of a kind ordinarily burdened or compromised by forbidden suggestiveness, warranting a lineup procedure or Wade hearing. The viewing by this trained undercover narcotics officer occurred at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure. Additionally, as we have observed in this kind of situation, it lent assurance that an innocent person was not being detained by reason of a mistaken arrest (People v Morales, 37 NY2d 262, 272). The undercover officer’s participation in the criminal apprehension operation at issue was planned, and he was experienced and expected to observe carefully the defendant for purposes of later identification and for completion of his official duties (id., at 271).

The station house viewing in this standard police operational procedure was not the kind of per se suggestive or improper bolstering present in show-up identifications by civilian witnesses (cf., People v Gissendanner, 48 NY2d 543, 552), too often resulting in misidentifications and thus warranting the strict rule we promulgated in People v Riley (70 NY2d 523). In sum, we imply no categorical rule exempting from requested Wade hearings confirmatory identifications by police officers by merely labeling them as such (see, People v Perez, 74 NY2d 637). Where the nature and circumstances of the encounter and identification may warrant, a hearing should and undoubtedly will be held. However, there is no basis in this record for us to conclude that the trial court, as affirmed by the Appellate Division, erred as a matter of law in denying the suppression hearing and motion.

Titone, J. (dissenting). In this "buy and bust” case, the issue is whether a defendant who has been identified by an undercover police officer in a pretrial station house procedure is entitled to a hearing pursuant to CPL 710.60 (4) to determine whether the identification was tainted by any unnecessarily suggestive factors. The majority memorandum rejects this defendant’s claim of entitlement to a hearing and affirms his conviction, but leaves this important legal question unanswered. Inasmuch as my own analysis leads me to conclude that a hearing is required in these and similar circumstances, I must respectfully dissent.

At the outset, I note my agreement with the majority’s observation that merely labeling a pretrial identification procedure "confirmatory” neither advances analysis nor justifies the refusal to hold a hearing. Indeed, although the Appellate Divisions have often used the term in this context (see, e.g., People v Thompson, 149 AD2d 634; People v Davis, 141 AD2d 831; People v Francis, 139 AD2d 527; People v Leacraft, 128 AD2d 640; People v Marrero, 110 AD2d 785; People v Stanton, 108 AD2d 688, 689), its application to street "buy and bust” cases or other crimes in which the police officer has had his first contact with the alleged perpetrator at the time of the crime is, at best, questionable.

The "confirmatory identification” label, as well as the premise that such identifications are not subject to testing for suggestiveness, is apparently derived from two prior decisions by this court, People v Gissendanner (48 NY2d 543, 551-553) and People v Morales (37 NY2d 262, 271-273). In Gissendanner, the court held that CPL article 710’s notice and hearing procedures for testing the constitutional propriety of pretrial identification procedures are not applicable in cases where "the defendant’s identity is not in issue, or * * * the protagonists are known to one another” (48 NY2d, at 552, supra). This holding was premised on the conclusion that the due process concern for the suggestiveness of a pretrial procedure is not implicated in such situations (id.; see, People v Collins, 60 NY2d 214, 218-219; see also, People v Tas, 51 NY2d 915).

In People v Morales (supra), this court declined to disturb the finding of the trial court, made after a traditional Wade hearing, that a police officer’s station house viewing of an arrestee following the latter’s alleged sale of narcotics to the officer was not unduly suggestive. In so ruling, the court relied on three factors: the officer’s expertise and training in the observation and retention of details relevant to identification, the absence of " 'unnecessarily suggestive’ ” procedures and, finally, the fact that "the viewing had not been for the purpose of identification but for [the officer] to assure himself that his backup team had arrested the man he intended.” (Id., at 271, 272.) The first two of these factors were obviously relevant to the traditional due process inquiry into whether a particular procedure created a risk of suggested or mistaken identification. While the relevance of the third factor, which is the apparent source of the "confirmatory identification” doctrine, may initially seem somewhat murky, closer analysis reveals that it too was considered in Morales as part of the court’s traditional due process inquiry.

As one commentator has observed, the "unnecessarily suggestive” prong of the Stovall v Denno (388 US 293) due process analysis "can, in turn be broken down into two constituent parts: that concerning the suggestiveness of the identification, and that concerning whether there was some good reason for the failure to resort to less suggestive procedures” (1 LaFave & Israel, Criminal Procedure § 7.4 [b], at 581). Specifically with regard to one-person showups, we have recognized that such procedures are inherently suggestive, but are nonetheless permissible where justified by necessity, including the need for prompt assurance that an innocent person has not been mistakenly detained (People v Riley, 70 NY2d 523, 529; People v Rivera, 22 NY2d 453, cert denied 395 US 964; see, e.g., People v Love, 57 NY2d 1023; People v Logan, 25 NY2d 184, cert denied 396 US 1020 [cited in Morales]; see also, Russell v United States, 408 F2d 1280, 1284, cert denied 395 US 928 [cited in Morales]).

In light of these principles, Morales’ extended discussion of the distinction between viewings conducted for the purpose of identification and those conducted for the purpose of "confirmation” can only be understood as an effort to demonstrate that the inherently suggestive one-person showup conducted there was permissible nonetheless because it was initiated merely to assure that the police had arrested the right man. Indeed, the court itself stated that the station house viewing, which it had determined to be "confirmatory,” was "far from being improper, actually 'consistent with good police work’ * * * since it assured that an innocent man was not incarcerated by someone else’s mistake.” (37 NY2d, at 272 [citations omitted].)

Thus, Morales does not stand for the proposition that so-called "confirmatory” identification procedures conducted in connection with a "buy and bust” operation are not subject to the traditional due process analysis that is ordinarily implemented through the procedural vehicle of a Wade hearing. To the contrary, Morales actually stands for the very different proposition that the "confirmatory” nature of a particular viewing is a significant factor to be considered in determining whether the Stovall v Denno (supra) due process standard has been satisfied. Indeed, the Morales holding was reached only after a Wade hearing had been held and the facts necessary to resolving the due process inquiry had been fully explored.

In short, neither Morales nor Gissendanner may be read to justify the summary denial of a Wade hearing under the circumstances presented by this case. While it is true that the police officer in this case was acquainted with the person he identified as defendant by virtue of their alleged contact during the sale, the Gissendanner rationale has no application. In this regard, the court’s observations in People v Collins (supra, at 219 [emphasis supplied]) are most apt: "This, of course, is necessarily a question of degree. When a crime has been committed by a family member, former friend or long-time acquaintance of a witness there is little or no risk [of taint through police suggestion]. * * * But in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the witness in making an identification. ”

Here, as is apparent from his trial testimony, the officer’s contact with the drug seller, lasting only seconds, was "fleeting” and certainly did not establish the level of familiarity contemplated by Gissendanner. Moreover, unlike Gissendanner, the seller’s identity was very much at issue in defendant’s trial. Accordingly, a hearing to explore "the possibility that police suggestion may [have] improperly influence[d] the [identifying] witness” should have been conducted, unless there exists a special rule that obtains when the identifying witness is a police officer who was pursuing his investigative duties at the time his observations were made (but see, People v Perez, 74 NY2d 637, 638).

The majority here has expressly declined to adopt such a "categorical rule” (majority mem, at 923). Yet, in the absence of a categorical rule, it is difficult to justify the majority’s conclusion that a hearing was not required in this case. Indeed, while acknowledging that "a hearing should and undoubtedly will be held” "[w]here the nature and circumstances of the encounter and identification may warrant” (id.), the majority has made no effort at all to suggest when such circumstances might exist, much less to explain how this case is distinguishable from those yet-to-be-described cases in which a hearing must be held.

Short of adopting a per se rule that, because of their training and special expertise, identifications by police officers acting in pursuit of their duties are never subject to suggestiveness — a rule that I would find unacceptable — there is really no sound basis for denying Wade hearings where a police officer has made a station house identification following a successful street "buy-and-bust” encounter. First, CPL 60.25 and 60.30, the very foundations for the admission of out-of-court identifications as evidence-in-chief pertaining to identity, require that the circumstances under which the evidence was obtained be "consistent with such rights as an accused person may derive under the constitution of this state or of the United States,” a test that is ordinarily explored through the procedural mechanism of a Wade hearing. Notably, the statutes make no exception for police officer-witnesses.

Second, although a particular officer’s training and special experience are certainly relevant to determining his susceptibility to suggestive circumstances, it cannot be said that they obviate the need to examine all of the specific events surrounding the identification to ascertain whether some suggestive circumstance, above and beyond the inherently suggestive nature of the showup procedure itself, irreparably tainted the identification (see, People v Rubio, 118 AD2d 879, 880). In People v Baez (103 AD2d 746), for example, the Wade hearing revealed that before viewing the suspect, the police officer had been shown a photograph of the suspect by a colleague and been told that the person depicted was arrested for another drug sale as well. Similarly, in People v Chillis (60 AD2d 968) a serious question about the reliability of an undercover’s identification testimony was held to warrant a Wade hearing where the undercover’s description of the suspect changed dramatically after he was shown a "mug shot” at police headquarters (see also, People v Perez, supra). Finally, in People v Williams (79 AD2d 929), it was disclosed during the Wade hearing that the undercover identified the defendant after he was told that the suspect arrested had been found with the "buy” money on his person.

It may well be that the foregoing examples represent precisely the type of circumstances that the majority refers to when it acknowledges that a hearing should be held in some cases. However, the idea of making the right to a Wade hearing turn upon the "nature and circumstances of the encounter” is fatally flawed because of its obvious circularity. The true "nature and circumstances” of a particular encounter ordinarily cannot be ascertained without a hearing in which testimony is taken, cross-examination is had and the evidence is evaluated by the trier of fact, for both credibility and reasonableness. Thus, to make the right to a hearing depend upon the specific events in the case, as the majority appears to do, is to establish what will, in most cases, amount to an insuperable threshold.

The majority’s own analysis of the facts in this case demonstrates the weakness of its legal approach. In determining that this defendant was not entitled to a Wade hearing, the majority relies upon the bare undisputed facts revealed by the motion papers, i.e., that the officer was trained, that he made his observations in anticipation of a subsequent arrest and that only three hours had elapsed between the initial encounter and the identification. The majority then goes on to uphold the mixed "determination of law and fact” (see, People v Dickerson, 50 NY2d 937) purportedly made by the courts below that "the officer’s observation of defendant at the station house approximately three hours later was not of a kind ordinarily burdened or compromised by forbidden suggestiveness” (majority mem, at 922).

However, since the trial court’s ruling was made upon motion papers alone — and before any hearing was held — it is difficult to understand how such a mixed conclusion could have been drawn. CPL 710.60 (3) permits summary denial of a suppression motion only where the motion papers fail to "allege a ground constituting legal basis for the motion” (CPL 710.60 [3] [a]) or "[t]he sworn allegations of fact do not as a matter of law support the ground alleged” (CPL 710.60 [3] [b]; see, CPL 710.60 [4]). Yet, as we have stated on at least one occasion, mixed questions of law and fact "can rarely be resolved as a matter of law even when the facts are not in dispute” (People v Harrison, 57 NY2d 470, 478). By upholding a mixed "determination” on the basis of so-called "evidence in the record” where the record consists only of motion papers, the majority has brought about a drastic change both in the fundamental precepts of criminal motion practice and in the prior traditional concept of "evidence,” which was always thought to mean testimony or exhibits admitted at an adversary hearing.

Even more importantly, to arrive at the mixed conclusion the majority now endorses, the courts below had to adopt a chain of assumptions, without any basis in the pretrial record, about what did (or did not) occur before the corporeal viewing in the station house took place. The conclusion assumes, for example, that none of the identifying officer’s colleagues informed him that the person arrested had a prior history of drug arrests (cf., People v Baez, supra) or that the person was found with "buy” money or drugs (see, People v Williams, supra). Such circumstances would certainly have raised a serious question about the reliability of the officer’s identification, notwithstanding that the procedure may have occurred only three hours after the sale (see, majority mem, at 922). Yet, because the ruling below, which the majority now affirms, short-circuited the usual fact-finding process represented by a Wade hearing, the occurrence or nonoccurrence of these or other similar circumstances is, and will remain, a matter of speculation.

Inasmuch as there seems to be no other realistic method for ruling out the possibility of improper suggestiveness, with its attendant risk of unreliable identification and miscarriage of justice (see, United States v Wade, 388 US 218, 228 [and authorities cited therein]), I would hold that, regardless of whether it may or may not be labeled "confirmatory,” a police officer’s pretrial viewing of the defendant must be tested in the crucible of an adversary Wade hearing if the officer’s identification testimony is to be offered at trial. Clearly, regardless of the purpose of the viewing, suggestive conduct by fellow officers, if it occurred, would raise due process concerns, leading to a legitimate question about the procedure’s consistency with the State and Federal Constitutions (see, CPL 60.25, 60.30).

As cases such as People v Chillis (supra), People v Baez (supra) and People v Williams (supra) reflect, even trained police officers who have observed the suspect with professional detachment are subject to suggestive influences. Indeed, although the risk of misidentification may be diminished in cases involving police witnesses because of their expertise and relative detachment, there are special problems associated with station house police identifications following street "buy and bust” operations that raise reliability questions not present in ordinary pretrial identification procedures. As is evident from the trial record in this case, "buy and bust” teams ordinarily have many encounters and make many "buys” during the course of their shifts before they return to the station house to "confirm” the arrests made by their backup teams. Accordingly, they must retain in their memories the details of many intervening faces and events, all of which relate to essentially similar transactions. Furthermore, the undercover’s contact with the drug seller often is fleeting and takes place under circumstances that are not conducive to careful observation because of the officer’s wish to avoid arousing suspicion. Finally, although I do not suggest that a police officer would knowingly identify the "wrong” person, it cannot be denied that there is a certain degree of suggestion inherent in the very fact that the officer’s own backup team, consisting of individuals with whom he may work on a regular basis, has made an arrest on the basis of the officer’s description.

For all of these reasons, I do not believe that the expertise and detachment that ordinarily accompanies identifications by police officers obviates the need to test such identifications for suggestive influences that might impair their accuracy. Accuracy of the postarrest station house identification is particularly critical in cases such as this, since, unlike the ordinary citizen witness who typically have few encounters with crime, a police officer may have contact with hundreds of suspects in the time between the arrest and the trial. Accordingly, the police officer’s in-court identification testimony, if any, is likely to be discounted, and, concomitantly, his testimony describing the station house identification that took place shortly after the arrest is likely to take on great probative significance.

Since the hearing mandated by CPL 710.60 (4) is the only practical method of assuring that all of the facts necessary to assessing the reliability of the officer’s identification testimony are elicited, I would hold that such a hearing was required here, and is required, in general, in cases involving station house procedures in which individuals who are not personally acquainted with the suspect, whether they are police officers or civilians, are asked to make an identification. Accordingly, I dissent from the majority’s decision to affirm and vote instead to give defendant the relief he seeks, at least to the extent of remitting for a Wade hearing.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Bellacosa concur; Judge Titone dissents and votes to reverse in an opinion in which Judge Hancock, Jr., concurs.

Order affirmed in a memorandum.

      . Indeed, on oral argument, even the People eschewed reliance on any per se rule that would insulate "confirmatory” identifications from Wade review in all cases.

      . For example, under this provision, a request for a Wade hearing could properly be denied summarily if there was undisputed proof that the identifying officer and the defendant were personally acquainted before the alleged crime or the identity of the alleged perpetrator was not in issue (see, People v Gissendanner, 48 NY2d 543).

      . This is not to suggest that a lineup necessarily must be held every time a police officer is called upon to make a station house identification. In this regard, the police officer’s special training and expertise, on which the majority has placed so much reliance, may well be a significant factor in determining what procedures due process requires. In any event, the question whether a one-person station house identification procedure is permissible is not before the court on this appeal and need not be decided here (but see, majority mem, at 922).


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    The People of the State of New York, Respondent, v McClean Mayers, Appellant.
    Decided November 28, 1989
    APPEARANCES OF COUNSEL

      Evan H. Krinick for appellant.

      James T. Hayden, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant claims that the trial court committed per se error by failing explicitly to advise him at the time of the guilty plea that he might be sentenced as a second felony offender. We conclude that the lower courts did not err and defendant may not be relieved of his guilty plea inasmuch as his claim was not raised by motion to withdraw the plea (CPL 220.60 [3]) or by motion to vacate the judgment of conviction (CPL 440.10). The record demonstrates that defendant was informed of the potential sentence and enhancement before he entered his plea and, indeed, received the precise sentence for which he bargained. Under existing law, the claimed error is not a matter of fundamental fairness and is governed by our usual preservation rules, which have not been satisfied.

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

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


text:
    In the Matter of Organization of Ancillary Services of the State University College at Oneonta, New York, Inc., Appellant. Thomas F. Hartnett, as Commissioner of Labor, Respondent.
    Decided November 28, 1989
   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 F. Bett, Respondent, v City of Lackawanna et al., Appellants.
    Submitted September 11, 1989;
    decided November 28, 1989
   Motion for leave to appeal dismissed upon the ground that the "judgment” sought to be appealed from does not finally determine the action within the meaning of the Constitution. Cross motion to vacate stay denied.


text:
    Edward Goldstein et al., Appellants, v Thiravim Jothy et al., Respondents.
    Submitted August 28, 1989;
    decided November 28, 1989
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Barbara Jiggetts et al., Appellants, v William J. Grinker, as Commissioner of the New York City Department of Social Services, et al., Respondents, et al., Defendants.
    Submitted November 13, 1989;
    decided November 28, 1989
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    In the Matter of Salue Rozier, Appellant, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Submitted August 28, 1989;
    decided November 28, 1989
   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 dismissed as academic.


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    In the Matter of Hee K. Choi, Appellant, v State of New York et al., Respondents.
    Argued October 11, 1989;
    decided November 30, 1989

      APPEARANCES OF COUNSEL

      Mary Good and Paul J. Cambria for appellant.

      Robert Abrams, Attorney-General (John J. O’Grady and O. Peter Sherwood of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner is a physician licensed to practice medicine in New York State. Respondent Commissioner of Education has found him guilty of professional misconduct and suspended his license for two years, the last 22 months stayed. After two months, petitioner will be placed on probation for the remainder of the suspension. Respondent Commissioner’s decision was based upon a determination of respondent Board of Regents which adopted the determination of its Review Committee made after an expedited hearing (see, Public Health Law § 230 [10] [m] [iv]). The Review Committee’s determination was based upon findings made by the Department of Social Services in a prior unrelated proceeding that petitioner had provided an unacceptable level of care and inappropriate treatment to Medicaid recipients, failed to state a diagnosis in many cases, ordered excessive laboratory tests and engaged in several unacceptable practices in violation of 18 NYCRR part 515. The findings were made after a full administrative hearing and resulted in DSS revoking petitioner’s Medicaid eligibility.

In the proceedings before the Regents Review Committee, it held petitioner was estopped from challenging the findings of DSS and limited to presenting evidence relating to the nature and severity of the punishment to be imposed upon him.

In this article 78 proceeding, petitioner claims that collateral estoppel was improperly invoked by the RRC because he had been denied a full and fair opportunity to litigate the issues presented in the DSS proceedings. His argument is based upon claims that he was denied effective assistance of counsel before DSS and that he did not have an incentive to fully litigate the issues there because he was unaware that the DSS determination would also be used as a basis for action against his license to practice medicine. He also challenges RRC’s use of the DSS findings to conduct an expedited hearing.

The doctrine of collateral estoppel precludes a party from relitigating in a subsequent proceeding an issue clearly raised and decided against that party even if the tribunals or causes of action are not the same (Ryan v New York Tel. Co., 62 NY2d 494, 500; Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11, 17). Before the doctrine may be invoked there must be "an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and * * * there must have been a full and fair opportunity to contest the decision now said to be controlling.” (Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 71; see also, Gilberg v Barbieri, 53 NY2d 285, 291.)

Petitioner, as the party opposing collateral estoppel, had the substantial burden of establishing that he did not have a full and fair opportunity in the DSS proceeding to contest its decision (see, Schwartz v Public Adm’r of County of Bronx, supra, at 73; B. R. DeWitt, Inc. v Hall, 19 NY2d 141, 148). He could do so before RRC by addressing factors such as the nature of the forum and the importance of the claim in the prior DSS litigation, the incentive and initiative to litigate there and the actual extent of the litigation, the competence and expertise of his counsel, the availability of new evidence, differences in applicable law and the foreseeability of future litigation (see, Ryan v New York Tel. Co., supra, at 501). He failed to satisfy that burden.

In attempting to do so, petitioner contended first that his counsel, who simultaneously represented a colleague at the DSS hearing, had a conflict of interest. He failed, however, to identify the nature of the conflict or how it prejudiced him. Petitioner also asserted that he lacked sufficient incentive and initiative to litigate the charges leveled against him by the DSS but he offered no evidence to support this allegation and the record indicates otherwise. The DSS proceedings lasted four days and petitioner fully participated in them by introducing evidence and cross-examining witnesses. He knew that an adverse decision by DSS placed him in jeopardy of being suspended from the Medicaid program on a State-wide basis for a period of two years and that a considerable number of his patients were subsidized by the medical assistance program. Thus, petitioner had the opportunity and ample reason to forcefully defend himself at the DSS proceeding and, in the absence of evidence indicating otherwise, we conclude that he did so.

Nor was petitioner denied an opportunity by RRC to prove that he did not have a full and fair opportunity to contest the decision of DSS. He attempted to address the issue at the hearing before RRC but did not submit factual support for his claim although the Committee had repeatedly informed petitioner on several earlier occasions that he should do so by submitting documentary evidence, a written answer, a brief or sworn testimony.

Finally, petitioner contends that the Committee improperly decided the charges against him in an expedited proceeding. The Public Health Law provides for expedited proceedings when charges of professional misconduct are based solely upon an agency’s final determination of a “violation of a state or federal statute or regulation” and where the "determination would constitute professional misconduct pursuant to section sixty-five hundred nine of the education law” (Public Health Law §230 [10] [m] [iv]). DSS did not find petitioner had violated Education Law § 6509. It did find petitioner had violated several rules and regulations and respondent Commissioner properly equated these findings with violations of Education Law § 6509 (2) and (9) to sustain the charges that petitioner practiced medicine with negligence on more than one occasion (charge 3) and that he ordered excessive tests and unwarranted treatment and use of treatment facilities (charge 6). Accordingly, we find no error in RRC employing this expedited procedure or in respondent Commissioner’s determination that petitioner was guilty of professional misconduct.

We have considered petitioner’s remaining arguments and find them either unpreserved or without merit.

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

Judgment affirmed, with costs, in a memorandum.


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    In the Matter of Anonymous, Appellant.
    Argued October 19, 1989;
    decided November 30, 1989
    APPEARANCES OF COUNSEL

      Ezra K. Katzen for appellant.
    No appearance for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner appeals from an order of the Appellate Division denying his application for admission to the Bar. The court’s decision came after the Committee on Character and Fitness found petitioner lacking in "the character necessary to discipline himself to control his standard of living and the amount of his indebtedness, thus showing a lack of financial responsibility necessary for an attorney.” At the time of his application, petitioner had filed a petition in bankruptcy. He maintains the Committee and the Appellate Division denied him admission because of his bankruptcy and thereby violated 11 USC §525. That statute provides that a governmental unit may not refuse to grant a license solely because the applicant is or has been a bankruptcy debtor.

The primary purpose of the Bankruptcy Act is to give debtors " 'a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt’ ” (Perez v Campbell, 402 US 637, 648 [quoting from Local Loan Co. v Hunt, 292 US 234, 244]). This purpose may be defeated if certain benefits are denied because the debtor has filed a petition in bankruptcy or because the debtor refuses to reaffirm and reinstate obligations which have been discharged by bankruptcy. Thus, in Perez the Supreme Court held that a State’s refusal to renew a driver’s license because of an unsatisfied tort judgment, arising from an automobile accident and discharged in bankruptcy, was contrary to principles underlying the bankruptcy laws and void under the Supremacy Clause of the Constitution (US Const, art VI, cl 2). Similar reasoning has been applied by State courts in Bar admission cases (see, Application of Gahan, 279 NW2d 826 [Minn], citing Perez v Campbell, supra; see also, Florida Bd. of Bar Examiners [Re: Groot], 365 So 2d 164 [Fla]; Florida Bd. of Bar Examiners [Re: G. W.L.], 364 So 2d 454 [Fla]; see generally, Annotation, Failure to Pay Creditors as Affecting Applicant’s Moral Character for Purposes of Admission to the Bar, 4 ALR4th 436).

Section 525 of title 11 is based upon the Perez holding and is intended to protect debtors from being denied governmentally granted privileges because of bankruptcy. The legislative history makes clear, however, that Congress’ concern was discrimination against debtors based upon the fact of bankruptcy; the statute was not intended to shield debtors from reasonable inquiries about their, ability to manage financial matters when the ability to do so is related to their fitness for the license sought (see, HR Rep No. 95-595, 95th Cong, 1st Sess, at 165 [1977], reprinted in 1978 US Code Cong & Admin News, 95th Cong, 2d Sess, at 5787, 5963, 6126; see also, Sen Rep No. 95-989, reproduced in 11 USCS § 525, History; see generally, Application of Taylor, 293 Ore 285, 647 P2d 462; Detz v Hoover, 539 F Supp 532).

The distinction is subtle because the State’s actions may not inhibit individuals from taking advantage of the bankruptcy laws to avoid jeopardizing a future legal career. Nor can the State use its power to examine Bar applicants as a means of coercing them into reaffirming debts previously discharged (see, Perez v Campbell, 402 US 637, 649-652, supra; Note, Evaluation of a Bar Applicant’s Moral Character: May a State Consider the Circumstances Surrounding a Discharge in Bankruptcy?, 56 Ind LJ 703, 714). A determination of unfitness must rest not on the fact of bankruptcy but on conduct reasonably viewed as incompatible with a lawyer’s duties and responsibilities as a member of the Bar. To successfully establish a claim that 11 USC § 525 has been violated, an applicant must establish that insolvency, the filing of bankruptcy or the discharge of debt is the sole reason for denial of the application (see, 11 USC § 525 [a]; In re Hopkins, 66 Bankr 828 [Bank Ct, WD Ark]; see also, 11 USCS § 525, History).

The Appellate Division is the fact finder on issues of character and fitness and its discretion in this area is "inclusive” (see, Matter of Harvey, 309 NY 46, 48). Our review is limited to ensuring that the proceedings have been conducted in accordance with statutory and regulatory requirements, that no right of the petitioner has been violated, and that there is evidence to sustain the decision of the Appellate Division. We may not substitute our judgment on the merits for that of the Appellate Division (see, Matter of Goodman, 199 NY 143, 144).

Although the Appellate Division did not state the reasons for its action or adopt those of the Committee, the record contains evidence sufficient to support its determination of unfitness on permissible grounds and its order should be affirmed.

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

Order affirmed, without costs, in a memorandum.


text:
    Norman Landry, Appellant, v A. Di Sarro Construction Company, Inc., et al., Respondents.
    Decided November 30, 1989

      APPEARANCES OF COUNSEL

      Ronald H. Sinzheimer and Thomas K. Keefe for appellant.

      Stephen R. Spring and Robert M. Auld for A. Di Sarro Construction Company, Inc., respondent.

      Dianne Bresee Mayberger for Hodorowski & De Santis Building Contractors, 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, for the reasons stated in the memorandum of the Appellate Division (149 AD2d 859).

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


text:
    Phillip B. Featherbay, Sr., et al., Appellants, v Richard Castellane et al., Respondents.
    Submitted September 18, 1989;
    decided November 30, 1989
   Motion to dismiss the appeal granted and the appeal dismissed, with $400 costs and $100 costs of motion, 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:
    In the Matter of Jesse R. Hughes, Respondent, v Suffolk County Department of Civil Service, Respondent, and Town of Riverhead, Appellant.
    Submitted October 30, 1989;
    decided November 30, 1989
   Motion to amend remittitur granted to the extent that remittitur is recalled and when returned it will be amended to read as follows: Order reversed, with costs, and matter remitted to the Appellate Division, Second Department, for consideration of issues not reached on the appeal to that court, in a memorandum. [See, 74 NY2d 833.]


text:
    Louis Moran, Appellant, v Village of Philmont et al., Respondents. (Action No. 1.) Village of Philmont, Respondent, v Louis Moran, Appellant. (Action No. 2.)
    Decided November 30, 1989
   Appeal from that portion of the Appellate Division order which affirmed Supreme Court’s order entered November 23, 1988 (action No. 1) dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal from that portion of the Appellate Division order which affirmed Supreme Court’s order entered November 28, 1988 (action No. 2) dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v Timothy Howard, Respondent.
    Decided November 30, 1989
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]). The reversal, while termed one "on the law” was necessarily a determination by the Appellate Division of a mixed question of law and fact.


text:
    The People of the State of New York, Respondent, v Angela White et al., Appellants.
    Submitted November 13, 1989;
    decided November 30, 1989
   Motion to vacate September 14, 1989 order dismissing the appeal denied. [See, 74 NY2d 832.]