text:
    In the Matter of Arthur Mintzer, Respondent, v Board of Education of the City School District of the City of New York et al., Appellants.
    Argued September 21, 1983;
    decided October 20, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Edward F. X. Hart and Ronald E. Sternberg of counsel), for appellants.

      Nicholas F. Lewis and Thomas T. Kilhenny for respondent.
   OPINION OF THE COURT

Memorandum.

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

After taking a competitive examination and being placed on an eligible list, Bangel was appointed as a teacher of automotive mechanics pursuant to subdivision 2 of section 2573 of the Education Law on October 17, 1974. Inasmuch as he had earlier retired as an employee of the New York City Sanitation Department he sought to take advantage of the provisions of section 211 of the Retirement and Social Security Law. Having met the prerequisites of that section he was entitled to continued status as retired without suspension or diminution of his retirement allowance.

Availing himself of the provisions of that section, however, affected only the retention of his retirement allowance; in no way did it relate to his appointment or to his status as a teacher on a permanent basis. His appointment was of the same character and quality as had been that of appellant Mintzer when he had been appointed from an eligible list as a teacher of automotive mechanics on September 5, 1973.

When, in February, 1976, it became necessary to lay off teachers of automotive mechanics due to severe budgetary cutbacks resulting from the fiscal crisis of the City of New York, the board of education was obliged to follow the command of subdivision 3 of section 2585 of the Education Law which then provided: “Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”

Mintzer at that time had a seniority of 3 years and 11 days. Although Bangel’s date of original appointment on a permanent basis was October 17, 1974, later in calendar date than that of Mintzer, because of credits to which he was entitled as a veteran under section 85 of the Civil Service Law, B angel then had a seniority of 4 years, 3 months and 25 days. Therefore the board of education had no choice but to favor B angel with the greater seniority over Mintzer with the lesser seniority.

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

Order reversed, with costs, and petition dismissed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Joseph Esposito et al., Appellants, v S. Michael Nadel, as Personnel Director of the City of New York, et al., Respondents.
    Decided October 20, 1983

      APPEARANCES OF COUNSEL

      Kenneth E. Gordon for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Dody Schorr of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioners, various New York City police officers who received failing grades on an examination for promotion to the position of sergeant, in this appeal challenge the final key answer chosen by respondent to a question on the examination. The question contained an example of a telephone inquiry received at the station house from a member of the public who owned a luncheonette and wanted to open a sidewalk cafe in front of it. The candidates were directed to choose “the most appropriate New York City office or agency” to which the caller should be referred. Four possible alternatives were offered: Department of Environmental Protection; Department of Health; Department of Consumer Affairs; and Borough President. In the final answer key respondents listed the Department of Consumer Affairs as the correct answer. Petitioners contend that the Department of Health is as good as or better than the key answer.

We established the standard of review applicable to challenges to answers on promotional exams in Matter of Acosta v Lang (13 NY2d 1079), where we held that: “Petitioner is not required to show that there is no reasonable basis for the key answer selected by the commission, but merely that the answer given by the candidate on the test is better or at least as good as the key answer. Where there are two equally acceptable answers to a question, the selection of one as the correct answer must be deemed to be the result of an arbitrary decision” (13 NY2d, p 1081; Matter of Oback v Nadel, 57 NY2d 620). The question here called for the most appropriate agency to which the caller should be referred. Consequently, it is not enough that the Department of Health might be an appropriate agency for referral. Rather, petitioners must show that characterizing the Department of Health as the most appropriate referral agency is as acceptable an answer as or more acceptable an answer than the Department of Consumer Affairs.

Respondents assert that, because the Department of Consumer Affairs has sole jurisdiction over the licensing of sidewalk cafes under subdivision a of section B32-54.0 of the Administrative Code of the City of New York and has issued comprehensive regulations under the broad regulatory authority granted it in subdivision b of that section, it is the most appropriate agency to be contacted with regard to the inquiry about opening a sidewalk cafe. That the Department of Health has authority to issue restaurant permits pursuant to section 87.03 of the Health Code of the City of New York and has general authority to remove sidewalk obstructions under section 556-10.0 of the Administrative Code does not make it as appropriate an agency to which the caller should be referred. The question posed implicitly assumed that the caller had a permit to operate the luncheonette and carried no suggestion that the proposed cafe might constitute a sidewalk obstruction. The Consumer Affairs regulations, which implement its authority to establish rules with respect to the “operation and maintenance of any sidewalk cafe, to insure good order and to prevent undue obstruction of the sidewalk” (Administrative Code, § B32-54.0, subd b), include detailed provisions regarding the size and type of permissible sidewalk cafes. As a result, Consumer Affairs’ specific authority in this area makes it a more appropriate agency for referral than the Department of Health. The issue presented can be resolved as a matter of law; accordingly there is no need for an evidentiary hearing.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of Board of Education of Northport-East Northport Union Free School District, Appellant, and “Abby” and “Richard”, Infants, by John P. Bracken, their Guardian ad Litem, Interveners-Appellants, v Gordon M. Ambach, Individually and as Commissioner of Education of the State of New York, et al., Respondents.
    Argued September 19, 1983;
    decided October 20, 1983

      APPEARANCES OF COUNSEL

      John H. Gross for Board of Education of Northport-East Northport Union Free School District, appellant.

      John P. Bracken, guardian ad litem, for intervenorsappellants.

      James H. Whitney, Robert D. Stone and Seth Rockmuller for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, to the respondents against the board of education.

We would note that under the circumstances of this case the petitioning students had no reasonable expectation of receiving a high school diploma without passing competency tests. Nor on the record can it be said that they were denied adequate notice of the requirement, in view of the fact that the regulation had been in effect for three years prior to the completion of their studies. For the reasons stated in the opinion of Presiding Justice A. Franklin Mahoney at the Appellate Division, the petitioners’ other contentions do not warrant the relief requested.

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

Order affirmed, etc.


text:
    In the Matter of Thomas Swift, Appellant, v Sandra Lefever et al., Constituting the Board of Elections of the County of Rockland, et al., Respondents.
    Argued October 18, 1983;
    decided October 20, 1983

      APPEARANCES OF COUNSEL

      Wayne A. Gavioli for appellant.

      Peter William Sluys for George Raboni, respondent.

      lian Schoenberger, County Attorney, for Board of Elections of the County of Rockland.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (97 AD2d 424).

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


text:
    The People of the State of New York, Respondent, v Ralph Rios, Appellant.
    Argued September 15, 1983;
    decided October 20, 1983

      APPEARANCES OF COUNSEL

      Robert R. Snashall for appellant.

      Sol Greenberg, District Attorney (F. Patrick Jeffers of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The only evidence concerning the informant was that she observed defendant walking with the child and gave the police defendant’s name and address. In light of the marginal nature of the information provided, defendant was not entitled to disclosure of the informant’s identity “absent an extremely strong showing of relevance” (People v Goggins, 34 NY2d 163,170). Although defendant submitted questions to be asked of the informant at the Darden: hearing which could have disclosed exculpatory information to him, he neither moved before or during trial for disclosure nor objected that the Trial Judge’s memorandum after the Darden hearing did not explicitly refer to the questions he had asked. There was, therefore, no error in. this respect.

Nor do defendant’s other two arguments provide ground for reversal. No crime other than kidnapping was charged, so the trial motion for dismissal based on merger (see People v Cassidy, 40 NY2d 763) was properly denied. The charge that the People need not prove the motive for the abduction was not error. Although it would not have been improper for the Trial Judge, upon request, to charge that defendant’s motive could be considered on the issues of his intent and knowledge that restraint of the child was unlawful (see People v Sangamino, 258 NY 85; People v Seppi, 221 NY 62), defendant’s attorney simply excepted to the charge as given and made no such request. Therefore, the issue has not been preserved for our review.

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

Order affirmed in a memorandum.

        (People v Darden, 34 NY2d 177.)


text:
    The People of the State of New York, Respondent, v Herminio Flecha, Appellant.
    Argued September 20, 1983;
    decided October 20, 1983

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for appellant.
    • Howard R. Relin, District Attorney (.Louise A. Boillat of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The People concede that defendant’s written and oral statements were taken in violation of defendant’s right to counsel as thereafter declared in People v Samuels (49 NY2d 218). The question before us is whether their introduction at trial can be regarded as “harmless beyond a reasonable doubt” (People v Almestica, 42 NY2d 222, 226; People v Crimmins, 36 NY2d 230, 242).

The evidence is overwhelming that defendant’s killing of his brother-in-law, Santos Cruz, was intentional and not in self-defense. The fight between Cruz and defendant which resulted in Cruz’ death was unwitnessed. Defendant’s self-defense plea rather than the introduction of the statements was, therefore, the motivation for defendant’s taking the stand. His testimony was largely confirmatory of the written statement, defendant did not deny that he had caused Cruz’ death, defendant had made statements to others which, if believed, confirmed his predetermined intention to do so, including one to the witness Megelre that defendant had told her he came to Rochester from Puerto Rico to kill Cruz. Although the veracity of that witness was put in issue, the presence of three separate stab wounds, one of which was eight inches deep, and all of which were in Cruz’ back though defendant claimed that Cruz came at him face to face with a stick, are confirmatory of a criminal rather than justifiable use of defendant’s knife.

Against a less overwhelming array of evidence inconsistent with defendant’s claim of self-defense, the introduction of his oral statement, including its statement of guilt and lack of remorse, might not be deemed harmless (People v Schaeffer, 56 NY2d 448). Here, however, there are not only the factors above set forth, but defendant’s statement to his sister following the fight that he had killed her husband, and his furtive conduct, including the direction to a neighbor as he was leaving his sister’s house after the fight: “Don’t call the police” and his statement to a friend, without any mention of self-defense, that he had fought with Cruz and stabbed him.

On the entire record we can reach no other conclusion than that there is no reasonable possibility that the erroneously admitted statements contributed to defendant’s conviction (cf. People v Sanders, 56 NY2d 51).

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

Order affirmed in a memorandum.


text:
    Corrine M. Ayton, Appellant, v Joan P. Bean, as Dean of Nursing of Long Island University, et al., Respondents.
    Argued September 20, 1983;
    decided October 20, 1983

      APPEARANCES OF COUNSEL

      Paul Traub and Robert P. Roberts for appellant.

      John J. Walsh and Ralph M. Cursio for respondents.
   OPINION OF THE COURT

Memorandum.

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

While the Appellate Division in reversing Special Term reached the merits of the appeal, we affirm the order of the Appellate Division solely upon the ground that Special Term lacked jurisdiction to grant petitioner the relief requested in view of the absence from the record of any proof of service commencing the article 78 proceeding.

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

Order affirmed, with costs, in a memorandum.


text:
    Corrine M. Ayton, Appellant, v Joan P. Bean, as Dean of Nursing of Long Island University, et al., Respondents.
    Argued September 20, 1983;
    decided October 20, 1983
    APPEARANCES OF COUNSEL

      Paul Traub and Harold F. Bonaquist for appellant.

      John J. Walsh for respondents.
   OPINION OF THE COURT

Appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.

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


text:
    The People of the State of New York, Respondent, v Robert Stack, Appellant.
    Decided October 20, 1983
    APPEARANCES OF COUNSEL

      Lisa Arlyn Lowe and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (Robin Bernstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Inasmuch as the crime of attempted grand larceny in the third degree requires proof that the property which defendant allegedly attempted to steal be valued in excess of $250, it was reversible error for the court to charge the jury that the value of the property was irrelevant. (Cf. People v Kaminski, 58 NY2d 886.)

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed and a new trial ordered in a memorandum.


text:
    The People of the State of New York, Respondent, v William Kinchen, Appellant.
    Argued September 20, 1983;
    decided October 20, 1983

      APPEARANCES OF COUNSEL

      Edward, J. Nowak, Public Defender (Peter D. Braun of counsel), for appellant.

      Howard R. Relin, District Attorney (Terry M. Servis of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant correctly points out that a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved by having been specifically raised in a suppression motion or at trial (People v Samuels, 49 NY2d 218, 221; People v Ermo, 47 NY2d 863, 865). This does not, however, dispense with the need for a factual record sufficient to permit appellate review (People v Charleston, 54 NY2d 622, 623; People v De Mauro, 48 NY2d 892, 893). Defendant’s argument that an outstanding bench warrant should be treated as a pending unrelated charge within the meaning of our holdings in People v Bartolomeo (53 NY2d 225) and People v Smith (54 NY2d 954) is not properly presented for our consideration, inasmuch as there is no proof in the record that the police had knowledge of the bench warrant’s issuance prior to taking defendant’s statement, or that they were otherwise chargeable with notice of any other pending criminal action; nor is there proof that defendant was represented by counsel in connection with the warrant or any pending charge (cf. People v Baldi, 54 NY2d 137 [further proceedings were required to resolve factual issues raised by right to counsel claim, where the record made clear that defendant had informed the police of a pending criminal charge prior to interrogation and it was undisputed that defendant had retained counsel in connection with that charge]).

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

Order affirmed in a memorandum.


text:
    David Van Slyke, Appellant, v Niagara Mohawk Power Corporation et al., Respondents. Niagara Mohawk Power Corporation, Third-Party Plaintiff, v New York Telephone Company, Third-Party Defendant. General Cable Corporation, Third-Party Plaintiff-Appellant, v New York Telephone Company, Third-Party Defendant-Respondent.
    (Appeal No. 1.) (And Three Other Similarly Titled Actions. Appeals Nos. 2, 3, 4.)
    Decided October 20, 1983

      APPEARANCES OF COUNSEL

      Richard D. Ryan for plaintiff-appellant.

      Douglas H. Young for Niagara Mohawk Power Corporation, respondent.

      Hilbert I. Greene for General Cable Corporation, respondent and third-party plaintiff-appellant.

      John F. Gates for New York Telephone Company, third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

On plaintiff’s appeal in appeal No. 1, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

We agree with the Appellate Division that plaintiff’s design defect cause of action must fail for lack of proof that defendant General Cable Corp. had reason to know of the increased danger by virtue of the operator’s storage of a tool in a particular manner (see Robinson v Reed-Prentice, 49 NY2d 471, 479; Micallef v Miehle Co., 39 NY2d 376, 386).

On plaintiff’s appeals in appeals Nos. 2, 3 and 4, appeals dismissed, without costs, upon the ground that plaintiff is not a party aggrieved by the orders of the Appellate Division (CPLR 5511). On defendant General Cable Corp.’s cross appeal in appeal No. 4, cross appeal dismissed, without costs, on the court’s own motion, as academic.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]):

On appeal No. 1, order, insofar as appealed from, affirmed, with costs.

On appeals Nos. 2, 3 and 4, plaintiff’s appeals dismissed, without costs.

On appeal No. 4, defendant General Cable Corporation’s appeal dismissed, without costs.


text:
    In the Matter of Nassau County Department of Social Services, on Behalf of Clara Field, Respondent, v Charles Walker, Appellant.
    Submitted September 6, 1983;
    decided October 20, 1983
   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 (see Cohen and Karger, Powers of the New York Court of Appeals, § 43).


text:
    Industrial Equipment Credit Corporation, Respondent, v Bernard Green et al., Appellants.
    Submitted October 11, 1983;
    decided October 20, 1983
   Motion to dismiss appeal denied.

Judge Meyer taking no part.


text:
    In the Matter of the Application of Rebecca Taylor et al., Appellants, v Jack Berberian, Individually and as Superintendent of Community School Board District 3, et al., Respondents.
    Submitted October 11, 1983;
    decided October 20, 1983
   Motion by respondent superintendent to vacate stay, etc., denied. Cross motion by petitioner Taylor for a stay granted. Motion to expedite appeal, etc., granted to the extent that the case is set down for argument on November 21, 1983, appellants’ papers on appeal to be served and filed on or before November 7 and respondents’ on or before November 18, 1983. Motion by Michael Davidson, a member of respondent board, for permission to file a brief granted.


text:
    Plant Planners, Inc., Respondent, v Arnold Pollock, Defendant, and Sussex Holding Co., Inc., Appellant.
    Decided October 25, 1983

      APPEARANCES OF COUNSEL

      Jonathan L. Glaser for appellant.

      Philip Furgang for respondent.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), the judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Loss of the “entire profit”, as provided in the contract, is a proper measure of damages (Lieberman v Templar Motor Co., 236 NY 139, 149), and is recoverable where plaintiff has supplied some adequate basis for computing the amount, even where that amount cannot be precisely determined with absolute certainty (Wakeman v Wheeler & Wilson Mfg. Co., 101 NY 205, 210).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    Bower & Gardner et al., Appellants, v Herbert B. Evans, as Chief Administrative Judge, Respondent.
    Argued September 14, 1983;
    decided October 25, 1983

      APPEARANCES OF COUNSEL

      Nancy Ledy Gurren, John J. Bower, Leah G. Kaplan and Karen L. Hymowitz for appellants.

      Patricia P. Satterfield, Paul A. Feigenbaum and Michael Colodner for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, by dismissing the complaint.

The Appellate Division’s decision to deny declaratory relief with respect to the plaintiffs’ contention that the statute is unconstitutional as applied is apparently not contested on this appeal. In any event the Legislature has provided that a declaratory judgment is a discretionary remedy (CPLR 3001), and it cannot be said that the Appellate Division abused its discretion in this instance (cf. W. T. Wang, Inc. v New York State Dept. of Taxation & Fin., 58 NY2d 1021). As the court noted, any objections the plaintiffs may have to the application of the regulation in a particular case may be considered in the normal course in the context of that litigation.

Indeed having reached that conclusion the court should also have dismissed the complaint to the extent the plaintiffs challenge the facial validity of the regulation. The plaintiffs concede that the basis for seeking this relief is their status as litigants in pending cases. In essence then they are attempting to review a ruling or prospective ruling in pending litigation, thus circumventing the normal appellate process. A declaratory judgment action cannot be employed to avoid the restrictions applicable to the particular litigation in which the challenged rule or ruling is pertinent (Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352). Exceptions may be recognized when the party seeking a declaratory ruling would otherwise have no right to appeal (see, e.g., Matter of Morgenthau v Erlbaum, 59 NY2d 143, 152, where we held: “Inasmuch as a defendant always has available a right to appeal, only an application for declaratory relief by the People should be entertained”). But that is not the case here.

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

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


text:
    The People of the State of New York, Respondent, v Freddie L. Glover, Appellant.
    Argued September 21, 1983;
    decided October 25, 1983

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender {Peter D. Braun of counsel), for appellant.

      Howard R. Relin, District Attorney {Kenneth Hyland of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court’s limited closure of the courtroom during the testimony of complainant in this rape case did not constitute an abuse of discretion or a denial of defendant’s right to a public trial. The Trial Judge, having presided over defendant’s previous trial on the same charges, knew of the embarrassing nature of complainant’s testimony and was aware, in addition, of the “traffic” caused by courthouse employees who, out of curiosity, tended to come in and out of the courtroom during such testimony. No spectator was present at the time the closure order issued, nor was anyone seeking to gain admittance. There is no indication that the court excluded or intended to exclude any member of the public who sought to attend the trial; indeed, the court informed defendant that anyone whom he desired to be present would be admitted to the courtroom. Under the circumstances here presented, the court’s efforts to prevent disruption in the courtroom during complainant’s sensitive testimony provides no basis upon which to upset defendant’s conviction.

Moreover, no reversible error occurred in the People’s questioning of defendant concerning prior testimony of a codefendant on the first trial, inasmuch as the substance of the prior testimony was not introduced. With regard to the prosecutor’s questions regarding that prior testimony, no motion to strike or request for curative instructions was made. Accordingly, no further issue is presented for our review. Defendant’s remaining contentions, insofar as they are preserved, are without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of David R. Wesser, Appellant, v State of New York Department of Health, State Board of Professional Medical Conduct, Respondent.
    Decided October 25, 1983

      APPEARANCES OF COUNSEL

      Deyan Ranko Brashich for appellant.

      Robert Abrams, Attorney-General {Mary Fisher Bernet of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. The Appellate Division correctly held that section 303 of the State Administrative Procedure Act is applicable and that it precludes the petitioner from seeking judicial review at this time.

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


text:
    In the Matter of David N. Hurd, Appellant, v R. Wells Stout et al., Constituting the New York State Board of Elections, et al., Respondents.
    Decided October 25, 1983

      APPEARANCES OF COUNSEL

      Robert G. Lyman and William J. Conboy, II, for appellant.

      Thomas P. Zolezzi for New York State Board of Elections, respondent.

      Thomas J. Spargo for Frank H. Armani, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (97 AD2d 616).

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


text:
    In the Matter of New York State Coalition of Public Employers et al., Respondents-Appellants, v New York State Department of Labor et al., Appellants-Respondents.
    Argued September 19, 1983;
    decided October 25, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {John Q. Driscoll and Peter H. Schiff of counsel), for appellants-respondents.

      Henry F. Sobota for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

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

Section 27-a (subd 4, par a) of the Labor Law directed the Industrial (now Labor) Commissioner to adopt by rule all safety and health standards promulgated under the United States Occupational Safety and Health Act (OSHA) which were in effect on December 27, 1980. Pursuant to this direction, the commissioner promulgated and published in the State Register a proposed rule which simply “incorporated by reference” all of the standards in 29 CFR parts 1910 and 1926. (12 NYCRR 800.3.)

In this article 78 proceeding respondents contend that such incorporation by reference violates section 8 of article IV of the New York Constitution, which provides: “No rule or regulation made by any state department * * * [or] officer * * * shall be effective until it is filed in the office of the department of state. The legislature shall provide for the speedy publication of such rules and regulations, by appropriate laws.” The Appellate Division and Special Term have held that this section forbids wholesale incorporation by reference of the OSHA regulations. We agree.

One of the purposes behind section 8 of article IV was to insure the existence of a common and definite place where the exact content of rules and regulations, including any changes, might be found. (People v Cull, 10 NY2d 123, 128.) Apart from contravening this purpose, the rule proposed by the commissioner violates the plain language of section 8, which requires all rules and regulations to be “filed in the office of the department of state” before they become effective. The OSHA regulations have not been filed.

Respondents also argue that the rule is void for vagueness because (1) it fails to specify which of the OSHA regulations were “standards” as opposed to record-keeping requirements; (2) it fails to specify which of the regulations were in effect on December 27, 1980; and (3) it adopts certain standards which are not applicable to the public sector. At such time as appellant complies with the requirement of filing and publishing the regulations, there will be no ambiguity concerning which standards are to apply in New York. Nor can we assume that appellant will choose to include regulations which have no applicability to the public sector. Consequently, it would be premature to pass on the argument that such inclusion would be void. Similarly, given our decision today, it would be pointless to pass on respondents’ contention that the procedure adopted by the commissioner deprived them of their rights under the State Administrative Procedure Act to comment on the proposed regulations.

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

Order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Sam Mann, Appellant.
    Argued September 22, 1983;
    decided October 25, 1983
    APPEARANCES OF COUNSEL

      Marilyn A. Kneeland and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s principal argument on this appeal is that his statements to the police, made before any charges were brought against him and after he had waived his right to counsel, should have been suppressed. The facts relating to defendant’s two separate encounters with the police are as follows: Shortly after midnight on June 29, 1978, police officers investigating a report that four men in an automobile were selling drugs approached the automobile in which defendant and three others were sitting. After the driver attempted to flee, and failed to produce a license or registration, the police ordered the occupants out of the automobile. One officer noticed a bulge in defendant’s pocket, which a subsequent search revealed was a derringer. Defendant was arrested and charged with possession of the derringer, which was seized. Defendant was represented by counsel at his arraignment on June 30, 1978, at which time the People moved to dismiss the charge because the prosecutor believed the derringer had been unlawfully seized. The court granted the People’s motion and the case was dismissed that day.

Seven days later, on .July 7, 1978, defendant was questioned by a homicide detective investigating the murder of Steven Pettigrew. Defendant waived his right to counsel and, although he refused to discuss Pettigrew’s murder, he did make inculpatory statements to the effect that he had participated with Pettigrew in a burglary of a gun shop in New Jersey and had taken several guns, including the derringer previously seized. Defendant was thereafter arrested on charges of criminal possession of weapons and conspiracy to possess firearms and ammunition, and his statements to the homicide detective were admitted into evidence at trial.

Defendant claims that his inculpatory statements should have been suppressed because his right to counsel in this case attached on June 30, 1978, when he was represented by counsel at his arraignment on the derringer possession charge, and his waiver on July 7 therefore was ineffective in the absence of counsel.

A suspect may not be questioned on a criminal matter in the absence of counsel once criminal proceedings have commenced against him in the very case about which the questions are to be asked (People v Samuels, 49 NY2d 218), or once the suspect is actually represented by an attorney in a pending criminal proceeding. (People v Hobson, 39 NY2d 479.) When, however, no criminal proceedings have commenced, and the suspect is not in fact represented by an attorney in any criminal proceeding or on the matter as to which he is being interrogated, he may waive his right to counsel without the presence of an attorney. (People v Kazmarick, 52 NY2d 322, 328-329.)

Here, at the time of defendant’s waiver and statements to the police, no criminal proceedings had been instituted against him. Furthermore, although defendant had been represented by counsel at his arraignment on the earlier charge, when that case was dismissed on the People’s motion on June 30, defendant’s representation by counsel in that matter had come to an end without any indication that the representation continued (cf. People v Miller, 54 NY2d 616, 619; People v Singer, 44 NY2d 241, 251), or that the termination of the earlier charge was the result of manipulation by the People. (Cf. People v Osgood, 52 NY2d 37, 45, n 2.)

Defendant argues that, simply by virtue of the derringer, the charge brought against him on June 29 was so “interrelated and intertwined” with the July charges that date of commencement of the latter charges should be deemed to be June 29. That argument has no support in the record.

The charge of June 29, that defendant possessed a derringer when frisked by police officers investigating a report of drug traffic, involves a different criminal matter than the July 7 charges, that defendant and several others possessed a large supply of guns and ammunition as the result of a gun store burglary. At the time of defendant’s first arrest on June 29 and the dismissal on June 30, the record shows that the police did not know of the burglary. What led the homicide detective to defendant on July 7 was not the derringer but rather the investigation of the murder of Pettigrew. Accordingly, at the time defendant waived his right to counsel, criminal proceedings had not been commenced against him, and any inquiry regarding the earlier charge would have revealed that he was in fact not represented by counsel in any pending criminal proceeding. (People v Kazmarick, 52 NY2d 322, 328-329, supra. ) In such circumstances, defendant himself could waive his right to counsel, which he did.

We have reviewed defendant’s other claims of error and consider them to be without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of William F. Sheehan, Respondent, v George P. Scaringe et al., Constituting the Albany County Board of Elections, et al., Appellants.
    Argued October 20, 1983;
    decided October 25, 1983
    APPEARANCES OF COUNSEL

      Robert G. Lyman, County Attorney (William J. Conboy, II, of counsel), for Albany County Board of Elections, appellant.

      Shawn D. Flaherty and Frank V. Bífera for Francis P. Melfe and others, appellants.

      Thomas J. Spargo for respondent.
   OPINION OF THE COURT

Memorandum.

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

The appeal presents the question whether a nominating petition in four volumes must be declared invalid simply because each volume, instead of beginning with page one, has its sheets consecutively numbered from the start of the first volume through the end of the fourth. Concluding that there was compliance with subdivision 2 of section 6-134 of the Election Law, we reverse the order below, which nullified the otherwise valid petition of the Independent Citizens of Guilderland in support of their candidates for town office.

We cannot say that subdivision 2 of section 6-134 must be read to require that each volume of a petition begin with page one. By its amendment of 1978 the Legislature restored to this section the requirement of consecutive pagination beginning with page number one. Consecutive numbering beginning with page one of either the sheets or the volumes of a petition, together with the other requirements of the section, provides assurance against fraud in connection with the collection of signatures for designating petitions.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Frederico Gonzalez, Appellant.
    Submitted October 17, 1983;
    decided October 25, 1983
   Motion to vacate the Court of Appeals order of dismissal dated September 11, 1981 denied. [See 54 NY2d 834.]


text:
    Kenford Company, Inc., et al., Respondents, v County of Erie et al., Respondents, and George Catalano et al., Intervenors-Appellants.
    Submitted October 11, 1983;
    decided October 25, 1983
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements to plaintiffs, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 46, subd [b], p 193).

Judge Kaye taking no part.


text:
    Lai Chun Chan Jin et al., Appellants, v Board of Estimate of the City of New York et al., Respondents.
    Submitted October 11, 1983;
    decided October 25, 1983
   Motion to dismiss the appeal or, in the alternative, to hold the appeal in abeyance, denied in each respect.


text:
    The People of the State of New York, Respondent, v Kurt Kaltenbach, Appellant.
    Argued September 15, 1983;
    decided October 27, 1983

      APPEARANCES OF COUNSEL

      Allan D. Mantel and William Charles Herman for appellant.

      Carl A. Vergari, District Attorney (Richard E. Weill, Gerald D. Reilly and Anthony J. Seruino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was charged in a misdemeanor information with assault in the third degree for hitting his wife with a metal key chain. At arraignment, the court informed defendant of the charge against him and stated that it was a serious charge not to be taken lightly. Upon ascertaining that defendant had read a printed sheet setting forth his right to counsel (see CPL 170.10, subd 5), the court asked defendant if he wished to be represented by counsel. The defendant declined legal representation. There was no further colloquy regarding defendant’s decision. Defendant pleaded not guilty and waived his right to a jury trial. He proceeded to conduct his defense pro se and was convicted.

A defendant charged in a prosecutor’s information with a misdemeanor offense has the statutory right to self-representation (see CPL 170.10, subd 6). A court must permit such self-representation “if it is satisfied that [defendant] made such decision with knowledge of the significance thereof” (CPL 170.10, subd 6). The court has a duty to determine the effectiveness of the waiver by undertaking a “sufficiently searching inquiry for it to be reasonably assured that the defendant appreciated the ‘dangers and disadvantages’ of giving up the fundamental right to counsel” (People v White, 56 NY2d 110, 117; see People v Sawyer, 57 NY2d 12, 21).

The court’s declarations — that defendant was entitled to be represented by a lawyer; that he was facing a serious charge; and that, if convicted, he could receive a year’s imprisonment — did not satisfy the duty to make a searching inquiry (People v Sawyer, 57 NY2d 12, 21, supra). The precautionary inquiry in this case failed to adequately warn defendant of the “risks inherent in representing himself” or apprise him of “the value of counsel” (People v Harris, 85 AD2d 742, 744, affd on opn below 58 NY2d 704). Consequently, defendant’s waiver of counsel was ineffective, and he is entitled to a new trial (see People v Sawyer, 57 NY2d 12, 21-22, supra; People v White, 56 NY2d 110, 119, supra).

In light of this disposition, there is no occasion to reach defendant’s other arguments.

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

Order reversed, etc.


text:
    United States Fidelity and Guaranty Company, Appellant, v 38 East 29 Street, Inc., et al., Defendants. 38 East 29 Street, Inc., Third-Party Plaintiff, v Joseph Walsh et al., Defendants-Respondents.
    Argued September 20, 1983;
    decided October 27, 1983

      APPEARANCES OF COUNSEL

      James M. Gilleran for appellant.

      Paul F. McAloon and Abraham Fuchsberg for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

Plaintiff, a workers’ compensation insurance carrier, commenced this action to enforce its lien for past benefits paid to the employee-claimant, Joseph Walsh, on an $85,000 settlement received by Walsh in a third-party action (see Workers’ Compensation Law, § 29, subd 1). Plaintiff, at the time of the recovery, had paid Walsh $16,567.14 in benefits.

Plaintiff moved for summary judgment to enforce its lien, less the amount deemed to be its equitable share of the litigation costs incurred by claimant in the third-party action. Supreme Court held that plaintiff’s lien should be reduced by claimant’s costs in recovering that amount of the settlement proceeds that inure to plaintiff through its recoupment of past benefits paid and through the extinguishment of the future benefits, if any, that plaintiff would have been obligated to pay but for the recovery (see, generally, Castleberry v Hudson Val. Asphalt Corp., 70 AD2d 228, 249-250 [Shapiro, J., dissenting]). The papers before the court were found to be insufficient to determine whether plaintiff was obligated to pay claimant any future compensation benefits and the matter was referred for a hearing on this issue. The Appellate Division affirmed and granted leave to appeal to this court on a certified question.

The sole issue presented is whether, in the event that plaintiff is found to be obligated to claimant for future compensation payments, the court may consider the extinguishment of this obligation due to claimant’s recovery as a benefit to plaintiff against which plaintiff’s share of litigation costs may be assessed. In equitably apportioning litigation costs to plaintiff, the court should consider the total benefit the carrier has derived from the recovery, including any relief from a future obligation to make compensation payments (Matter of Kelly v State Ins. Fund, 60 NY2d 131).

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

Order affirmed, etc.


text:
    In the Matter of Rudolph V. Stempel et al., Appellants-Respondents, v Albany County Board of Elections et al., Respondents-Appellants. In the Matter of Jane H. Springer et al., Appellants-Respondents, v Joan M. Byrne et al., Respondents-Appellants.
    Argued October 25, 1983;
    decided October 27, 1983

      APPEARANCES OF COUNSEL

      Thomas J. Spargo for appellants-respondents.

      Robert G. Lyman, County Attorney ('William J. Conboy, II, of counsel), for Albany County Board of Elections, respondent-appellant.

      James E. Long for Joan M. Byrne and others, respondents-appellants.
   OPINION OF THE COURT

Memorandum.

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

Petitioners, not being members of the political party whose certificates of nomination naming certain persons as candidates for various town offices at the next general election are being challenged, do not have standing to object to those candidacies (see Matter of Wydler v Cristenfeld, 35 NY2d 719; Matter of Menendez v McNab, 83 AD2d 893, mot for lv to app den 54 NY2d 769; Election Law, § 16-102).

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

Order affirmed, without costs, iri a memorandum.


text:
    The People of the State of New York, Respondent, v John Volpe, Appellant.
    Argued September 22, 1983;
    decided October 27, 1983

      APPEARANCES OF COUNSEL

      Barry A. Schwartz and Bernard F. Ferrera for appellant.

      Robert M. Morgenthau, District Attorney (<Jeanne E. Zunich and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Police officers entered defendant’s apartment without a warrant after a Federal agent and the officers overheard incriminating conversations from inside the apartment. Defendant argues that a finding of probable cause cannot be sustained because the agent and officers were not lawfully present in the hallway outside his apartment, having failed to establish that their entry into the common areas of the locked, restricted access multiple-unit dwelling was authorized. Examination of the record of the suppression hearing reveals, however, that the legality of these officers’ presence in the building was never questioned by defendant and that argument is thus not preserved for review by this court (People v Martin, 50 NY2d 1029). To the extent defendant has argued that the information available to the officers was otherwise insufficient to support the finding of probable cause and exigent circumstances for the warrantless entry, he has failed to raise a reviewable issue of law, given the affirmance of the suppression court’s findings on these issues (see People v Harrison, 57 NY2d 470).

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

Order affirmed in a memorandum.


text:
    Coalition Against Lincoln West, Inc., et al., Appellants, v City of New York et al., Respondents.
    Argued October 19, 1983;
    decided October 27, 1983

      APPEARANCES OF COUNSEL

      Bruce J. Terris, Nathalie V. Black and Jack Auspitz for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Marvin R. Kwartler, Leonard Koerner and Stephen J. McGrath of counsel), for City of New York "and others, respondents.

      Judah Gribetz, Douglas M. Parker, Jed S. Rakoff, Harold R. Tyler, Jr., and Gregory L. Diskant for Lincoln West Associates, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice David Ross at the Appellate Division (94 AD2d 483). We would only add that in the circumstances of this case, we are satisfied that the draft environmental impact statement did provide an adequate basis for public consideration of density impact. (Cf. Webster Assoc. v Town of Webster, 59 NY2d 220; Matter of Concerned Citizens Against Crossgates v Flacke, 58 NY2d 919, affg 89 AD2d 759, 761.)

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


text:
    In the Matter of Patrick R. Brereton & Associates, Inc., Doing Business as Contract Plus, et al., Appellants, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Decided October 27, 1983

      APPEARANCES OF COUNSEL

      Edward J. Moses for appellants.

      Robert Abrams, Attorney-General (.Richard J. Dorsey and Peter H. Schiff of counsel), for respondents.

      James W. Bendall for Temple-Stuart Co. and another, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (94 AD2d 886).

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


text:
    The People of the State of New York, Respondent, v Michael Festo, Appellant.
    Decided October 27, 1983

      APPEARANCES OF COUNSEL

      Wayne Brody for appellant.

      Robert M. Morgenthau, District Attorney (Debora K. Grobman of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed for the reasons stated in so much of the memorandum of the Appellate Division (96 AD2d 765) as discusses the retroactivity of the new sentencing provisions.

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


text:
    In the Matter of Anthony V. Sinagra, Appellant, v John J. Hogan et al., Constituting the Ulster County Board of Elections, et al., Respondents.
    Argued October 25, 1983;
    decided October 27, 1983

      APPEARANCES OF COUNSEL

      Joseph M. Ingarra for appellant.

      Paul T. Kellar for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (97 AD2d 643).

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


text:
    In the Matter of Warren L. Boulanger.
    Decided October 27, 1983
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Warren L. Boulanger is not suspended from his office of Justice of the Cold Spring Village Court, Putnam County, New York, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Robert W. Kelso.
    Decided October 27, 1983
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Robert W. Kelso is not suspended from his office of Justice of the Montgomery Town Court, Orange County, New York, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Alan B. Weissman et al., Appellants, v City of New York, Department of Buildings et al., Respondents.
    Submitted September 26, 1983;
    decided October 27, 1983
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that it was not taken within the time prescribed by statute (CPLR 5513).


text:
    In the Matter of Bernard C. Lucchese et al., Respondents, v Philip J. Rotella et al., Appellants, and Helena M. Donohue et al., Respondents.
    Argued October 25, 1983;
    decided October 28, 1983

      APPEARANCES OF COUNSEL

      Charles Apotheker, appellant pro se, and for Phillip J. Rotella and others, appellants.

      Robert J. Miller, Arthur Moskoff and Jerry A. Weiss for O. Fred Miller and another, appellants.

      Thomas J. Spargo for Bernard C. Lucchese and others, respondents.

      lian S. Schoenberger, County Attorney (Martin Hurwitz of counsel), for Rockland County Board of Elections, respondent.

      Robert Abrams, Attorney-General (William J. Kogan and Peter J. Dooley of counsel), respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, for those reasons set forth in the memorandum of the Appellate Division which relate to the failure to abide by the requirements of subdivision 1 of section 6-108 of the Election Law.

While we do not address the appropriateness or propriety of instituting this proceeding in Albany County rather than in Rockland County where the controversy arose, we do not condone the practice.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Janet De Masi, Appellant, v Antonia D’Apice et al., Constituting the Board of Elections of the County of Westchester, et al., Respondents.
    Argued October 27, 1983;
    decided October 28, 1983

      APPEARANCES OF COUNSEL

      Thomas Abinanti for appellant.

      Peter Lane for Stephen Mawn, respondent.

      Samuel S. Yasgur, County Attorney (.Annalinda P. Ragazzo of counsel), for Board of Elections of County of Westchester, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (97 AD2d 526).

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


text:
    In the Matter of Raphael Amelio, Jr., Respondent, v Antonia D’Apice et al., Constituting the Board of Elections of the County of Westchester, Respondents, and Frank A. Vetere et al., Appellants.
    Argued October 27, 1983;
    decided October 28, 1983

      APPEARANCES OF COUNSEL

      Arthur H. Goodman for Frank Vetere and others, appellants.

      Harvey J. Fried for Charles Balancia, appellant.

      Guy T. Parisi for Raphael Amelio, Jr., respondent.

      Samuel S. Yasgur, County Attorney (.Annalinda P. Ragazzo of counsel), for Board of Elections of County of Westchester, respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and order of the Appellate Division brought up for review should be reversed, without costs, and the case remitted to that court so that it may reconsider the matter and may exercise its own discretion.

The Appellate Division erred in holding, as a matter of law, that Special Term was in error in refusing to accept the amended petition, which raised an issue of fact as to the validity of the signature of the subscribing witness to pages 27 and 30 of the nominating petition.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, without costs, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Michael J. Bruno et al., Appellants, v Mark D. Le Bow, as Chairman of the City Civil Service Commission for the City of New York, et al., Respondents, and Carey T. Carey et al., IntervenorsRespondents.
    Decided November 1, 1983

      APPEARANCES OF COUNSEL

      Joseph Frost for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.David Drueding of counsel), for respondents.

      Arthur I. S trier for inter venors-respondents.
   OPINION OF THE COURT

Memorandum.

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

It was not arbitrary or capricious for respondents to have reduced the passing grade on the administrative skills component only of the three-part promotional examination for the position of lieutenant in the New York City Police Department in order to produce a sufficient pool of sergeants eligible for promotion to meet the needs of the department (Rules and Regulations of Personnel Director of City of New York, § 4.4.9,' subd [c]). Based on the evaluation and advice of a qualified consultant, respondents could properly conclude that the difficulty of the questions in the administrative skills component, which was a new format, had been underestimated and that the passing mark on this component of the examination only should be reduced to one standard deviation below the mean score so that candidates who would achieve the mean on a subsequent administration of the test would receive passing grades on this examination.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Kim A. Smith, an Infant, by Claude J. Smith, Her Father, et al., Appellants, v Lefrak Organization, Inc., et al., Respondents.
    Decided November 1, 1983

      APPEARANCES OF COUNSEL

      Sydney J. Chase for appellants.

      Lewis I. Wolf for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (96 AD2d 859). It is unnecessary for us to consider appellant’s assertions that the recently enacted CPLR 2005 (L 1983, ch 318) is applicable in this case inasmuch as plaintiff failed to submit an affidavit of merits in opposition to defendants’ motion for summary judgment (Stolowitz v Mount Sinai Hosp., 60 NY2d 685; Amodeo v Radler, 59 NY2d 1001).

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


text:
    The People of the State of New York, Respondent, v Robert Lee Canty, Appellant.
    Decided November 1, 1983

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender {.Peter D. Braun of counsel), for appellant.

      Howard R. Relin, District Attorney {Wendy Evans Lehmann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

None of the three grounds urged by defendant warrants reversal of his conviction. There was no abuse of discretion in the trial court’s rulings as to the use of evidence of defendant’s prior convictions for impeachment purposes if he took the witness stand. Accordingly, beyond this, appellate review of the trial court’s rulings terminated at the Appellate Division (People v Pollock, 50 NY2d 547, 549-550).

Defendant’s contention, that inasmuch as there was no independent evidence that his alibi had been fabricated no false alibi charge should have been given, was not preserved for our review, there having been no protest sufficient to draw the attention of the trial court to this contention.

Finally, although it may be said in retrospect that the court’s charge with respect to the People’s burden of proving defendant’s guilt beyond a reasonable doubt as related to the alibi defense could have been more precisely phrased, the jury, hearing the whole charge, would have gathered from its language the correct rule to have been applied in arriving at its verdict; none of the asserted imperfections were such as to warrant reversal of defendant’s conviction.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed in a memorandum.


text:
    In the Matter of Sebastian Biondo, Appellant, v New York State Board of Parole, Respondent.
    Decided November 1, 1983

      APPEARANCES OF COUNSEL

      Murray Bogatin for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Supreme Court, Albany County, for a hearing to determine when petitioner was informed of the appeal board’s determination.

The four-month Statute of Limitations did not begin to run until the petitioner received notice of the appeal board’s determination (see, e.g., 8 Weinstein-Korn-Miller, NY Civ Prac, par 7804.02; Matter of Abramson v Commissioner of Educ., 1 AD2d 366, 371; cf. Matter of Queensborough Community Coll. v State Human Rights Appeal Bd., 41 NY2d 926). The contrary conclusion reached by the courts below, that the running of the statutory period began to run immediately upon the issuance of the determination, overlooks the additional requirement that the petitioner be “aggrieved” by the determination (Matter of Martin v Ronan, 44 NY2d 374, 381). We have previously held that for the purposes of the commencement of the statutory period, the petitioner cannot be said to be aggrieved by the mere issuance of a determination when the agency itself has created an ambiguity as to whether or not the determination was intended to be final (Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352). A similar principle should apply when the petitioner has received no notice, ambiguous or otherwise, of the determination by which he is said to be aggrieved. Indeed, fundamental fairness would seem to compel the conclusion that a petitioner should not be held to have been dilatory in challenging a determination of which he was not aware (cf. Matter of Bianca v Frank, 43 NY2d 168).

We also note that although the petitioner’s sentence has expired it cannot be said, as we recently held in Matter of Tremarco v New York State Bd. of Parole (58 NY2d 968), that the proceeding has been rendered moot. In that case the sentence expired after the article 78 proceeding had been commenced thus rendering academic the only question presented in the petition, namely, whether petitioner was entitled to remain on parole without a further hearing. Here on the other hand, the sentence expired while the petitioner’s case was pending before the appeal board, and the propriety of its decision to dismiss for mootness is the primary issue raised in the petition. Nothing has occurred since the commencement of that proceeding to render that issue moot. Moreover, in contrast to Tremarco, here petitioner was found to have been a parole violator which may have lasting consequences despite the expiration of his sentence.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and matter remitted to Supreme Court, Albany County, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Ralph L. Matinzi, Appellant-Respondent, v Daniel W. Joy, as Deputy Commissioner of the Department of Housing and Development, Respondent-Appellant, and C.R.C. Limited Partnership, Respondent.
    Decided November 1, 1983

      APPEARANCES OF COUNSEL

      Michael D. Kaufman and Norman Siegel for appellant-respondent.

      Alan W. Ginsberg and Harry Michelson for respondent-appellant.

      Edward A. Winkelman for respondent.
   OPINION OF THE COURT

Memorandum.

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

In 1979, the Office of Rent Control ordered petitioner’s apartment decontrolled. No appeal was taken from this order. In 1982, petitioner challenged the 1979 order of decontrol, alleging that it had been procured by fraud. This challenge was dismissed by the district rent director. While an administrative appeal from this determination was pending, the landlord brought a dispossess action in Civil Court. Despite the pendency of the administrative proceeding, petitioner, who was represented by counsel, entered into a comprehensive stipulation with the landlord whereby he withdrew his answer with prejudice and agreed to surrender possession. The stipulation was “So Ordered” by the court. The deputy commissioner subsequently affirmed the order of the district rent director, and petitioner brought this article 78 proceeding, seeking annulment of the decontrol of his apartment.

A stipulation may be set aside because of fraud, collusion, mistake, accident or other such ground (see Matter of Frutiger, 29 NY2d 143, 150), but no such showing was made. Petitioner was aware of the alleged fraud before he signed the stipulation, that being the basis for his challenge to the 1979 order of decontrol. Further, even if any ground had been established for setting aside the stipulation, the appropriate vehicle would have been an application to the Civil Court seeking relief from its order. (Siegel, NY Practice, p 242.)

In view of the stipulation surrendering possession, there is no need to reach the request of the district rent director for a remand to determine issues of fraud in connection with the decontrol of petitioner’s apartment.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs,'in a memorandum.

       While section 17 of the City Rent and Eviction Regulations voids any agreement whereby a tenant waives the benefit of the rent law (see Estro Chem. Co. v Falk, 303 NY 83), this section does not prohibit an agreement to surrender possession of the apartment and resolve incidental differences.


text:
    Betty O. Muka, Appellant, v Robert Howard, as Sheriff of Tompkins County, Respondent.
    Decided November 1, 1983
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    In the Matter of Michael A. Oliveras et al., Appellants, v Yolanda Rivera et al., Respondents. (And Another Proceeding.)
    Decided November 1, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it is moot.


text:
    Norman Silberstein, Appellant, v County of Westchester, Respondent.
    Submitted October 17, 1983;
    decided November 1, 1983
   Motion to vacate this Court of Appeals order of dismissal dated September 28, 1983 granted. [See 60 NY2d 703.]


text:
    UA-Columbia Cablevision of Westchester, Inc., Appellant, v Fraken Builders, Inc., et al., Respondents.
    Decided November 1, 1983
   Appeal dismissed as against defendant Fraken Builders, Inc., without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Ronald J. Valo, Appellant.
    Submitted October 3, 1983;
    decided November 1, 1983
   Renewed motion to vacate the Court of Appeals order of dismissal dated July 11, 1983 denied. [See 60 NY2d 588, 632.]


text:
    In the Matter of D. Children. W. Burton Richardson, as Director of the Monroe County Department of Social Services, Respondent; Sally Moore, as Guardian ad Litem, Appellant.
    Argued October 24, 1983;
    decided November 3, 1983

      APPEARANCES OF COUNSEL

      Elizabeth L. Schneider for appellant.

      James A. Robinson and Milo I. Tomanovich for respondent.
   OPINION OF THE COURT

Orders affirmed, without costs, for reasons stated in the opinion by Justice James H. Boomer at the Appellate Division (90 AD2d 348).

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


text:
    In the Matter of the Arbitration between Board of Education of the Connetquot Central School District of Islip, Respondent, and Connetquot Teachers Association, Appellant. Connetquot Teachers Association, Appellant, v Board of Education of the Connetquot Central School District of Islip et al., Respondents.
    Argued October 20, 1983;
    decided November 3, 1983

      APPEARANCES OF COUNSEL

      Daniel Galinson for appellant.

      Warren H. Richmond, III, for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order and judgment of Supreme Court reinstated.

The arbitration sought in this instance lies within the permissible scope of the Taylor Law (Civil Service Law, art 14), and the issue tendered (the right of the teachers association to use office space in school buildings) falls within the ambit of the broad arbitration clause contained in the collective bargaining agreement between the parties (cf. Matter of Acting Supt. of Schools [United Liverpool Faculty Assn.], 42 NY2d 509, 513-514).

The arguments of the school board that the arbitrator might make an award that could be said to be in violation of public policy do not justify judicial intervention in the arbitration process at this stage (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 417-418). And, of course, the courts are enjoined from consideration of the merits of the dispute between the parties (CPLR 7501).

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

Order reversed, etc.


text:
    3301-3303 Hempstead Turnpike Beauty Salon, Inc., et al., Respondents, v Angela Oresti Salons, Ltd., Appellant.
    Decided November 3, 1983

      APPEARANCES OF COUNSEL

      Charles T. Matthews for appellant.

      Nicholas J. Damadeo for respondents.
   OPINION OF THE COURT

Memorandum.

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

The factual determination of that court — that the hours prescribed by the franchisor-landlord during which the establishment of the franchisee-tenant were to be kept open were “reasonably” determined by the former within the contemplation of the franchise agreements between the parties — more nearly comports with the weight of the evidence and is not affected by any error of law. Similarly, it was not error for the Appellate Division to have concluded that the franchisee-tenant was obligated to pay attorney’s fees under the franchise agreements. Nonperformance of these obligations warranted the landlord-franchisor to terminate the franchise agreements and the associated lease.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Ossining Urban Renewal Agency, Respondent, v Elissa Lord et al., Defendants, and Pine Top Building Corp., Appellant.
    Argued October 20, 1983;
    decided November 3, 1983

      APPEARANCES OF COUNSEL

      Bernard Gartlir and Judith A. Kaufman for appellant.

      Hugh A. Lavery, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Supreme Court to remand to the commissioners of appraisal for further proceedings in accordance with this memorandum.

The CPLR 3222 submission constituted a stipulation between the parties of the facts stated in the submission and was conclusive of such facts as between the parties to the proceeding (Mann v Simpson & Co., 286 NY 450). The parties here stipulated that the easement granted to Pine Top in the conveyance to it from Elissa Lord of the 13.68 parcel “represented the only access of ingress and egress which Pine Top had to a public road from the property so conveyed.” That that easement has been extinguished was the express holding of the order of the Supreme Court reinstated by our prior order in this litigation (Matter of Ossining Urban Renewal Agency v Lord, 39 NY2d 628).

The easement referred to in that stipulation purported to grant Pine Top the right to cross not only the 5.5 acre parcel retained by Elissa Lord but also the “Right of Ingress and Egress to and from Snowden Avenue over, across and upon an ‘Access Drive’ * * * through lands of the People of the State of New York” lying between Pine Top’s land and that of Lord. Having stipulated that the easement granted Pine Top was inclusive of passage over State land and the litigation having proceeded on that assumption and having reserved no issue concerning the effect of so much of the easement as purported to authorize Pine Top to cross State land, the renewal agency was bound by its concession that the easement gave Pine Top access to a public road. It was, therefore, error for the commissioners of appraisal to evaluate the condemned easement on the basis that it provided no right of passage over the State’s land. Whatever the nature of Pine Top’s right to cross the State’s land, the stipulation conceded that it had such a right. It was, therefore, entitled to damages calculated on the basis of that right (see Campbell v State of New York, 32 NY2d 952). That the exact location of Pine Top’s access and route across the State land had not been determined is, in the face of that stipulation, irrelevant, as is the possibility that the State, which ultimately abandoned the highway, might be persuaded to provide Pine Top access to a public road over its land.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Roger Jackson, Appellant.
    Decided November 3, 1983

      APPEARANCES OF COUNSEL

      James M. Dungan and Gerald T. Barth for appellant.

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Michael P. Marmor of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A distinction must be drawn between conflict of interest cases involving representation of several defendants by one attorney and the potential for conflict resulting when a defendant’s attorney accepts the offer of a position with the prosecutor’s office. In the foriner situation the consequences will not be readily apparent to the average defendant and require careful probing by the Trial Judge of each defendant’s “awareness of the potential risks involved in that course and [that each] has knowingly chosen it” (People v Macerola, 47 NY2d 257, 263; see People v Gomberg, 38 NY2d 307, 312-314). In some, though not all, situations involving conflict of the latter type, the risks involved may be clear even to a layman.

When, as in People v Shinkle (51 NY2d 417, 421), defendant may believe that his former attorney, who joined the prosecutor’s staff prior to defendant’s trial, is championing the People’s cause against him, there is an impermissible conflict even though the prosecutor and the former attorney have in fact taken pains to assure otherwise. Where, as here, however, defendant’s attorney joins the prosecutor’s staff after entry of defendant’s plea of guilty, the fact that he will do so has been revealed to defendant prior to plea, the plea taken is to the lower of two crimes charged and in satisfaction of all related charges against defendant and includes a recommendation by the prosecutor that defendant be sentenced to time served, there is no “significant possibility” of an actual conflict (see People v Monroe, 54 NY2d 35, 37; People v Baffi, 49 NY2d 820, 822). Under such circumstances the Trial Judge need not probe as deeply as would be required in a joint representation case to assure that defendant’s decision to proceed is an informed decision (cf. People v Monroe, 54 NY2d 35, 38-39, supra; People v Gomberg, 38 NY2d 307, 313, supra).

The record reveals that the Trial Judge assured himself that defendant was aware of his attorney’s future employment and was satisfied with everything that the attorney had done for him. That defendant was, in fact, sentenced not to time served but to one year in jail resulted not from anything his original attorney did or failed to do, but from the fact that the probation report revealed seven prior convictions, rather than the one or two admitted by defendant during the plea proceeding. Defendant was told by the Trial Judge during the plea proceeding of the possibility of a one-year sentence if the probation report warranted such a sentence, and, of course, “was the only participant in the plea bargaining process in a position to have firsthand knowledge” of his own prior record (People v Rogers, 56 NY2d 552, 554).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed in a memorandum.


text:
    John B. Salch, Appellant, v Louis Paratore et al., Respondents.
    Decided November 3, 1983

      APPEARANCES OF COUNSEL

      Richard S. Scanlan for appellant.

      Thomas V. Svogun for Louis Paratore, respondent.

      Myra I. Packman for Vassar Brothers Hospital, respondent.

      John J. Pilkington for Isidro Ferrando, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to reverse the dismissal of the complaint against defendant Louis Paratore and as to him to remit to the Appellate Division to consider the matter in the exercise of the discretion granted by CPLR 2005 and, as so modified, the order should be affirmed.

With respect to the medical malpractice defendants, Vassar Brothers Hospital and Dr. Isidro Ferrando, plaintiff’s failure to file an affidavit of merits mandates affirmance of the Appellate Division’s dismissal for failure timely to serve and file a note of issue (Amodeo v Radler, 59 NY2d 1001; Sortino v Fisher, 20 AD2d 25, 31-32).

The same is not true, however, of the negligence cause of action against defendant Louis Paratore. The complaint, verified by plaintiff on the basis of personal knowledge and which detailed Paratore’s acts of negligence, was a sufficient affidavit of merits (CPLR 105, subd [s]; see Bethlehem Steel Corp. v Solow, 51 NY2d 870, 872). Accordingly, the Appellate Division erred in holding, as a matter of law, that in denying defendant Paratore’s CPLR 3216 motion to dismiss for failure to comply with the 3216 demand, Special Term abused its discretion (Brady v Reynolds Printasign Co., 59 NY2d 979; Miskiewicz v Hartley Rest. Corp., 58 NY2d 963).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified, with costs to plaintiff against defendant Paratore, and case remitted to the Appellate Division, Second Department, for further proceedings as to defendant Paratore in accordance with the memorandum herein and, as so modified, affirmed, with costs to defendants Vassar Brothers Hospital and Ferrando against plaintiff.

       Although the Appellate Division memorandum stated that the reversal was an exercise of discretion, its order of reversal recited that the decision was on the law. We resolve the inconsistency on the basis of the order and of the fact that its memorandum stated that “it was an abuse of discretion” to deny defendants’ motions, which is a ruling on the law (Barasch v Micucci, 49 NY2d 594, 598).


text:
    Robert E. McKee, Appellant, v Wellington Estates, Ltd., et al., Respondents.
    Decided November .3, 1983

      APPEARANCES OF COUNSEL

      Grant S. Lewis for appellant.

      Norman Flitt for respondents.
   OPINION OF THE COURT

Memorandum.

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

The language of the General Obligations Law (§ 7-103, subd 2) provides two alternatives for the disposition of accrued interest, less administration expenses, by a landlord: to hold the interest in trust or to make annual payments to the tenant. Neither the statutory language nor the legislative history mandates that a landlord apply the accrued interest to a subsequent increase in the security deposit. Nor did the Appellate Division abuse its discretion in awarding costs and disbursements to defendants.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Long Island University Faculty Federation, Local 3998, NYSUT, AFT, AFL-CIO, Respondent, v Board of Trustees of Long Island University, Appellant.
    Argued October 20, 1983;
    decided November 3, 1983

      APPEARANCES OF COUNSEL

      K. Jane Fankhanel, Douglas P. Catalano and Judith B. Yaeger for appellant.

      Ronald H. Shechtman and Richard M. Betheil for respondent.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed, with costs, for the reasons stated in the memorandum decision of the Appellate Division (91 AD2d 686). We also note that appellant’s contention that the arbitrator’s decision violates section 193 of the Labor Law is without merit. Although petitioner’s demand for arbitration sought “proper payment” of penalties by all full-time faculty as a remedy, the award of the arbitrator did not grant any remedy or direct respondent to proceed against nonstriking teachers. It stated only that “the grievance is granted.” Inasmuch as petitioner failed to object to this omission, it is held to have waived it. Accordingly, the award is limited to a declaration interpreting the terms of the agreement and does not permit monetary consequences in this or any future action.

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

Order affirmed, with costs, in a memorandum.


text:
    Richard M. Corp, Appellant, v Lee Alexander, as Mayor of the City of Syracuse, et al., Respondents.
    Submitted October 17,
    decided November 3, 1983
   Motion to vacate the Court of Appeals order of dismissal dated July 18, 1983 denied. [See 60 NY2d 587.]


text:
    Long Island Pen Corp. et al., Appellants, v Shatsky Metal Stamping Co., Inc., et al., Respondents.
    Submitted October 17, 1983;
    decided November 3, 1983
   Motion to vacate the Court of Appeals order of dismissal dated September 1, 1983 denied. [See 60 NY2d 643.]


text:
    Jeanne M., Cross-Appellant, v Richard G., Respondent-Appellant, and Sean M., Intervenor-Respondent.
    Decided November 3, 1983
   Cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that cross-appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    Robert W. Nishman, Appellant-Respondent, v Anthony J. De Marco, Jr., Respondent-Appellant.
    Decided November 3, 1983
   Cross appeal from Appellate Division order dated May 2, 1983 dismissed, without costs, by the Court of Appeals sua sponte, insofar as review is sought of that order, upon the ground that the cross appeal does not lie as of right pursuant to CPLR 5601 (subd [a], par [iii]) because defendant (cross-appellant) is not aggrieved by the modification and the cross appeal pursuant to CPLR 5601 (subd [d]) brings up for review only the prior nonfinal Appellate Division order dated July 14, 1980 (CPLR 5501, subd [b]).


text:
    Peter Vitale, Respondent, v City of New York et al., Appellants.
    Argued October 17, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Michael Gage and Leonard Koerner of counsel), for appellants.

      Anthony J. Pirrotti for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, an industrial arts teacher at a junior high school, was injured when he was assaulted by one of the students as he sought to break up an altercation in the hallway of the school. Asserted liability of the city was predicated on evidence of unjustified failure fully to have observed a detailed security plan promulgated by the board of education pursuant to section 2801 of the Education Law. This plan was designed to maintain public order on school property, and among its beneficiaries were students, teachers, staff members, visitors and other licensees and invitees alike.

Plaintiff recognizes, as he must, that absent a special duty owed to him liability for his injuries may not be imposed on the city for its breach of a duty owed generally to persons in the school system and members of the public (Glick v City of New York, 53 AD2d 528, affd 42 NY2d 831; Bass v City of New York, 38 AD2d 407, affd 32 NY2d 894; Riss v City of New York, 22 NY2d 579). It is his contention, however, that a special relationship was created between him and the board of education when the security plan was adopted and that the board breached its special duty of care to him when it failed to enforce its own security rules. He grounds his assertion of special duty, and seeks to distinguish the holding in the Glick case, on the circumstance that as a teacher he was himself an integral component of that plan. Nothing in the adoption or content of the plan warrants a finding that it was designed or intended specially for his benefit or that of other teachers in the school. They stood as its beneficiaries in exactly the same position as students, other personnel in the school system, and members of the public who came on the school property. We reject his contention that because the teachers had a role to play in the implementation of the plan they were somehow thereby converted into its special beneficiaries. Indeed other than reciting the bare fact that as a teacher plaintiff had responsibilities for implementation of the plan, he advances no rationale as to why that fact without more should give rise to the special duty which is a condition precedent to governmental liability.

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

Order reversed, etc.

       That section provides:
      “Regulation by boards of education of conduct on school district property
      “1. The board of education, as defined in section two of this chapter, of every school district, however created, within the state shall adopt rules and regulations for the maintenance of public order on school property and shall provide a program for the enforcement thereof. Such rules and regulations shall govern the conduct of students, teachers and other staff as well as visitors and other licensees and invitees. The penalties for violations of such rules and regulations shall be clearly set forth therein and shall include provisions for the ejection of a violator from the school property and in the case of a student or teacher, his suspension, expulsion or other appropriate disciplinary actions. Such rules and regulations shall be filed with the regents and the commissioner of education not later than ninety days after the effective date of this act. All amendments to such rules and regulations shall be filed with the regents and the commissioner of education not later than ten days after their adoption.
      “2. If the board of education fails to file" the rules and regulations within the time required by this section such school district may not be eligible to receive any state aid or assistance until such rules and regulations are duly filed.
      “3. Nothing contained in this section is intended nor shall it be construed to limit or restrict the freedom of speech nor peaceful assembly.”


text:
    In the Matter of the Estate of Earl W. Smith, Deceased. Elizabeth Klindt et al., Appellants; Margaret M. Heit, Respondent.
    Submitted October 21, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

      James E. Konstanty for appellants.

      Edward Gozigian for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing briefs, payable out of the estate, for the reasons stated in the memorandum in that court (90 AD2d 905).

If the word “including” in the fourth paragraph of the will is read to mean “as well as” the pattern of decedent’s dispositive plan becomes evident and internally consistent. Subject to the gift of his residence to his wife to enjoy during her lifetime if she did not predecease him, he gave the residence to his friend Margaret Mary Heit. If his wife did predecease him, he gave what would have been her life interest in the residence, as well as the “fee” thereof, to Margaret Mary Heit.

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

Order affirmed in a memorandum, with costs payable out of the estate to all parties appearing separately and filing separate briefs.


text:
    Tireth S. Sandhu, Respondent, v Manmohan Sandhu, Appellant.
    Decided November 22, 1983

      APPEARANCES OF COUNSEL

      Dana Lee Van Buskirk for appellant.

      Louis S. Labert for respondent.
   OPINION OF THE COURT

Memorandum.

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

There was no error of law in the conclusion reached by both courts below that cruel and inhuman treatment has been sufficiently demonstrated to satisfy the requirement of subdivision (1) of section 170 of the Domestic Relations Law (Hessen v Hessen, 33 NY2d 406, 411). In balancing the several factors to be considered on this record, the courts were not bound to deny relief to plaintiff husband because of the duration of the marriage and defendant wife’s lack of demonstrated ability to support herself.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Bradford Trust Company, Appellant, v Citibank, N. A., Respondent, et al., Defendant.
    Argued October 17, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

      Christopher J. Collins and Louis J. Maione for appellant.

      Annette Wheeler and Joanna Shally for respondent.
   OPINION OF THE COURT

Memorandum.

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

Although there are circumstances under which the drawer of a negotiable instrument may have a cause of action against a depositary bank that has paid over a forged but effective indorsement, Special Term correctly determined that the factors urged by plaintiff as establishing that the depositary bank wrongfully paid the instrument are insufficient to invoke that rule of liability. The subject instrument was not paid in a manner inconsistent with any restrictive indorsement (Uniform Commercial Code, § 3-205), nor was the instrument improperly or inadequately indorsed (Uniform Commercial Code, §§ 3-117, 3-204). Finally, there is no requirement that a check payable to a fiduciary be deposited to a fiduciary account, and the fact that the instrument was not so deposited may not, without more, be relied upon as establishing a wrongful payment on the part of the depositary bank (see Uniform Commercial Code, § 3-304, subd [2]).

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

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


text:
    Gernatt Asphalt Products, Inc., Appellant, v Bensal Construction, Inc., et al., Defendants, and Aetna Casualty and Surety Company et al., Respondents. R. P. Myers, Inc., et al., Third-Party and Interpleader Plaintiffs-Respondents, v Robert Smolinski et al., Third-Party and Interpleaded Defendants-Appellants; United States of America, Third-Party and Inter-pleaded Defendant-Respondent, et al., Third-Party and Interpleaded Defendants.
    Argued October 19, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

      Frank T. Gaglione and Lawrence A. Schulz for plaintiff-appellant.

      Richard J. Attea for third-party and interpleaded defendants-appellants.

      John M. Wilson, II, for respondents.

      Glen L. Archer, Jr., Assistant Attorney-General, Salvatore R. Martoche, United States Attorney, Joan I. Oppenheimer, Michael L. Paup and Richard W. Perkins for the United States of America, third-party and interpleaded defendant-respondent.
   opinion of the court

Order modified, with costs to appellants, to the extent of denying defendants’ motions for summary judgment for the reasons stated in the dissenting in part memorandum at the Appellate Division (90 AD2d 993), and, as so modified, affirmed.

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


text:
    Susana Martinez, Individually and as Administratrix of the Estate of Gerardo Martinez, Deceased, Plaintiff, v American Standard et al., Defendants. Tecumseh Products Company, Sued Herein as Tecumseh Products, Defendant and Third-Party Plaintiff-Appellant, v Vitreous State Products, Third-Party Defendant-Respondent. (And Another Third-Party Action.)
    Argued October 20, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

      E. Richard Rimmels, Jr., for third-party plaintiff-appellant.

      Alexander V. Sansone for third-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 652). In denying the discovery requested in the answering affidavit, the Appellate Division did not abuse its discretion as a matter of law.

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


text:
    Cinora Nercessian, as Executrix of Thomas Thomasian, Deceased, Appellant, v Homasian Carpet Enterprises, Inc., et al., Respondents.
    Submitted October 21, 1983;
    decided November 22, 1983

      APPEARANCES OF COUNSEL

      Bruce J. Ressler for appellant.

      Joseph R. Zibelli for respondents.
   opinion of the court

Memorandum.

The order of the Appellate Division should be reversed, with costs, judgment granted to plaintiff on the liability issue and the matter remitted to Supreme Court, Westchester County, for further proceedings on the complaint.

In plaintiff’s action for breach of contract, in which she seeks an injunction against further use of the trade name and damages, defendant did not challenge plaintiff’s authority to enter into the contract of sale, or that she was the distributee of all the corporation’s assets upon its dissolution. The sole defense offered was that any restriction under the contract on defendant’s license to use the trade name was waived by plaintiff’s filing of a certificate of dissolution of the corporation, and defendant was absolutely free to use the trade name thereafter. It is true, of course, that rights in a trade name may be lost by abandonment (see Neva-Wet Corp. v Never Wet Processing Corp., 277 NY 163). We agree, however, with the dissenter below that the record simply does not support defendant’s assertion that plaintiff abandoned whatever right existed to enforce the limitations on use of the trade name, nor can it be concluded, as defendant has argued, that the filing of a certificate of dissolution, without more, demonstrates abandonment of the trade name. In any event, whatever rights the parties may have had by virtue of the common law concerning trade names, they could elect to alter those rights and have them governed instead by an appropriate agreement, which is apparently what the parties sought to do in this case.

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

Order reversed, with costs, judgment granted to plaintiff on the liability issue and case remitted to Supreme Court, Westchester County, for further proceedings in accordance with the memorandum herein.